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HomeMy WebLinkAboutReg 2011-08-15 COMPLETE AGENDA PACKETTukwila City Counci/ Agenda REGULAR MEETING Jim Haggerton, Mayor Counci /members: Joe Duff ie Joan Hernandez Shawn Hunstock, Interim City Administrator Dennis Robertson Verna Seal Allan Ekberg, Council President Kathy Hougardy De'Sean Quinn August 15, 2011; 7:00 PM Ord #2344 Res #1745 1. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL 2. SPECIAL a. Federal legislative update: HaiHiemstra from Baii.Janik PRESENTATIONS b. Crime mapping software update: Trina Cook, Crime Analyst, Po /ice Dent 3. APPOINTMENTS Confirm the appointment of Jeri Frangello- Anderson to Position #2 on the pg• Planning Commission, with a term expiring 3/31/2014. 4. CITIZEN At this time, you are invited to comment on items not included on this agenda COMMENT (please limit your comments to five minutes per citizen). To comment on an item listed on this agenda, please save your comments until the issue is presented for discussion. 5. CONSENT a. Approval of Minutes: 8/1/11 (ReguiarMtg.) AGENDA b. Approval of Vouchers. 6. UNFINISHED a. Authorize the Mayor to enter into an Interlocal Agreement with King County Pg• BUSINESS for the Regional Affordable Housing Program. b. Shoreline Master Program: Pg.9 (1) An ordinance approving and adopting a Shoreline Master Program update for Pg.13 the City of Tukwila to incorporate new State requirements. (2) An ordinance amending the shoreline element of the City's Comprehensive Pg.17 Land Use Plan to incorporate policies that reflect new State requirements. (3) An ordinance amending requirements for shoreline regulations codified at Pg•23 Tukwila Municipal Code Chapter 18.44, "Shoreline Overlay," to incorporate new State requirements. (4) An ordinance adopting and amending definitions for shoreline regulations to Pg.103 incorporate new State requirements. c. A resolution establishing November 8, 2011 as the date for an advisory Pg. 121 election on the question of whether the City Council should allow licensed gambling in the form of the operation of social card rooms within the Tukwila city limits. 7. NEW BUSINESS An ordinance declaring an emergency and adopting a 12 -month moratorium Pg.125 on the establishment, location, operation, licensing, maintenance or continuation of medical cannabis collective gardens or dispensaries. 8. REPORTS a. Mayor b. City Council c. Staff d. City Attorney e. Intergovernmental 9. MISCELLANEOUS 10. EXECUTIVE SESSION Personnel Issue Pursuant to RCW 42.30.110(1)(g) 30 minutes 11. ADJOURNMENT Tukwila City Hall is wheelchair accessible. Reasonable accommodations are available at public hearings with advance notice to the City Clerk's Office (206- 433 -1800 or tukclerk @tukwilawa.gov). This notice is available at www.tukwilawa.aov, and in alternate formats with advance notice for those with disabilities. Tukwila Council meetings are audio taped. HOW TO TESTIFY If you would like to address the Council, please go to the podium and state your name and address clearly for the record. Please observe the basic rules of courtesy when speaking and limit your continents to five minutes. The Council appreciates hearing from citizens but may not be able to take immediate action on continents received until they are referred to a Committee or discussed under New Business. COUNCIL MEETINGS No Council meetings are scheduled on the 5th Monday of the month unless prior public notification is given. Regular Meetings The Mayor, elected by the people to a four -year term, presides at all Regular Council Meetings held on the 1st and 3rd Mondays of each month at 7:00 p.m. Official Council action in the form of formal motions, adopting of resolutions and passing of ordinances can only be taken at Regular Council meetings. Committee of the Whole Meetings Council members are elected for a four -year term. The Council President is elected by the Council members to preside at all Committee of the Whole meetings for a one -year term. Committee of the Whole meetings are held the 2nd and 4th Mondays at 7:00 p.m. Issues discussed are forwarded to the Regular Council meeting for official action. GENERAL INFORMATION At each Council meeting citizens are given the opportunity to address the Council on items that are not included on the agenda during CITIZENS COMMENTS. Please limit your comments to 5 minutes. Special Meetings may be called at any time with proper public notice. Procedures followed are the same as those used in Regular Council meetings. Executive Sessions may be called to inform the Council of pending legal action, financial, or personnel matters. PUBLIC HEARINGS Public Hearings are required by law before the Council can take action on matters affecting the public interest such as land -use laws, annexations, rezone requests, public safety issues, etc. Section 2.04.150 of the Tukwila Municipal Code states the following guidelines for Public Hearings: The proponent shall speak first and is allowed 15 minutes for a presentation. 2. The opponent is then allowed 15 minutes to make a presentation. Each side is then allowed 5 minutes for rebuttal. 4. Citizens who wish to address the Council may speak for 5 minutes each. No one may speak a second time until everyone wishing to speak has spoken. 5. After each speaker has spoken, the Council may question the speaker. Each speaker can respond to the question, but may not engage in further debate at this time. 6. After the Public Hearing is closed and during the Council meeting, the Council may choose to discuss the issue among themselves, or defer the discussion to a future Council meeting, without further public testimony. Council action may only be taken during Regular or Special Meetings. COUNCIL AGENDA SYNOPSIS CAS NUMBER: Initials Meetink Date Prepared by Mayry evil 08/15/11 JT ITEM INFORMATION 11-080 STAFF SPONSOR: MAYOR AGENDA ITEM TITLE Confirm appointment to Planning Commission Council review ITEM NO. 3 ORIGINAL AGENDA DATE: 08/15/11 CATF,GORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other Mt g Date Mtg Date 8/15/11 Mtg Date Mtg Date Mtg Date Mt g Date Mtg Date SPONSOR Council Mayor I4R DCD Finance .Fire IT P&R Police PW SPONSOR'S Confirm appointment of Jeri Frangello- Anderson to Position 2 of the Planning SUMMARY Commission, term to expire March 31, 2014. The Council is being asked to confirm this appointment. RIwIEWE'D BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: COMMITTEE CHAIR: RECOMMENDATIONS: SPONSOR /ADMIN. Confirm Appointment COMMITTEE COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: I MTG. DATE I RECORD OF COUNCIL ACTION 08/15/11 MTG. DATE I ATTACHMENTS 08/15/11 Informational Memorandum from Mayor dated August 3, 2011. 1 x City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: CITY COUNCIL FROM: Mayor Haggerton DATE: August 3, 2011 SUBJECT: Appointment, Planning Commission Issue There is currently a vacancy in Position #2 on the Planning Commission, as a result of Margaret Bratcher's recent resignation from the Commission. There were several excellent applicants for this vacancy, and after my review, I am recommending that the Council approve the appointment of Jeri Frangello- Anderson. Recommendation Jeri is a 21 year resident of the Thorndyke neighborhood. Her husband is a Foster High School graduate and they live just a few blocks from where he grew up. She is delighted to be nominated and I am sure that her energy and enthusiasm will be a great asset to the Commission. On her application she mentioned that she is very interested in the future development of Tukwila and is a strong supporter of the Tukwila Village project. She has also volunteered with the City in the past as a member of the Community Oriented Policing citizen's Advisory Board, Human Service Advisory Board and on the Citizen's patrol. I have attached a copy of her application. Her term will expire March 31, 2014. If you have any questions regarding this appointment, please let me know by 5 :00 p.m. on Monday, August 8, 2011. Unless I hear otherwise from members of City Council, I will invite Ms. Frangello- Anderson to the August 15, 2011 Regular City Council Meeting for confirmation. 3 0 City of Tukwila VOLUNTEER PROGRAM Tukwila Community Center 1242442 nd Avenue South Tukwila, WA 98168 Phone: (206) 768 -2822 Fax: (206) 768 -0524 Email: volunteer(aci.tukwila.wa.us Website: vAvw.ci.tukwila.wa.us Application for Appointment BOARDS AND COMMISSIONS Tukwila City Please complete the ENTIRE application form. Applicants may attach a cover letter and /or a resume totaling no more than three pages. DATE: 3/18/2011 NAME" Frangello- Anderson Jeri L Last First M. 1. ADDRESS: 15021 43rd Place South Street MAILING ADDRESS (if different): HOME PHONE: 206 244 1128 EMPLOYER: Consolidated Press RECEIVED 98188 CELUMOBILE PHONE: 206 552 1620 E -MAIL: Jerber40 @hotmail.com Please check all that apply to you within the City of Tukwila limits: El Resident Business Owner /Representative School District Representative High School Student Zip I wish to be considered for appointment to the following board or commission (check all that apply): COMMISSIONS: BOARDS COMMITTEES: Arts Community Police Advisory Civil Service Human Services Equity Diversity Library Parks Sister Cities 17 Planning Lodging Tax HAVE YOU PREVIOUSLY SERVED ON ONE OF THESE BOARDS OR COMMISSIONS? Yes No If "yes please list: Community Police Advisory board AVAILABLE TO ATTEND MEETINGS: Daytime 0 Evenings Please contact me regarding other City of Tukwila volunteer opportunities (check box): p FOR CITY USE ONLY: INTERVIEW DATE: APPOINTED: Yes No TERM EXPIRES: M Professional /Community Activities (organizations, clubs, service groups, etc): Tukwila Community Oriented Police Advisory Board Citizens Patrol Human Services Board Hobbies /Interests: Quilting, Reading, Internet, Camping and playing with my dogs Qualifications as related to this position: I don't have any experience with Architecture, but have been a citizen of Tukwila for over 20 years and am very proud of the city I live in. I am very interested in the future development of the city and how changes can be made to the city to help future businesses and residents become a vital part of Tukwila. Other comments /additional information for consideration: I am a strong supporter of the Tukwila Village project and would love to see this come to life Applicant's Signature 3/18/2011 Date Note: Upon submission, all information on this form becomes public record. For further clarification regarding this application or more information regarding the boards or commissions, please call the Volunteer Program Office at (206) 768 -2822. City of Tukwila Volunteer Program Application for Appointment Boards Commissions Page 2 A COUNCIL AGENDA SYNOPSIS Initials ITEM NO. Meetii,g Date Prepared by Mayor'rr-eview Council review 08/08/11 EB 08/15/11 EB 6.A. ITEM INFORMATION I CAS NUMBER: 11-077 STAFF SPONSOR: EVELYN BOYKAN OIZIGIN, \J,AGI�NDA D \'I'I 8/8/11 AGENDA I TrlLrr Regional Affordable Housing Program Interlocal Agreement (RAHP) CATEGORY ®Dircusrion ®Motion Resolution ❑Ordinance .Bidl3aaard Public !Tearing Other Mtg Date 08108111 Alt g Date 08/15/11 Mtg Date Mtg Date A4tg Date Mtg Date A4tg Date SPONSOR Council Mayor HR DCD Finance Fire IT P &R Police PIFI SPONSOR'S The existing agreement sunsets in December. RAHP funds raised through the document SUMMARY recording fee support affordable housing projects at the state and local level. RI; N/I1?WI?D BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmtc Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: 7/25/11 COMMITTEE CHAIR: QUINN FOR SEAL RECOMMENDATIONS: SPONSOR /ADMIN. Mayor's Office, Human Services COMM]17 "ES Unanimous Approval; Forward to Committee of the Whole COST IMPACT FUND SOURCE EYPNNDITURE R -QUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: I MTG.DATEI RECORD OF COUNCIL ACTION 1 08/08/11 1 Forward to next Regular Meeting MTG. DATE J ATTACHMENTS 08/08/11 Informational Memorandum dated 07/20/11 Interlocal Agreement 08/15/11 INo attachments 7 x COUNCIL AGENDA SYNOPSIS CAS NUMBER: 11-064 AGENDA ITEIM TrTI E CATEGORY SPONSOR SPONSOR'S SUMMARY Discussion Mtg Date 6 -271 7 2.5 /R R F Council Department of Ecology (Ecology) Required Changes to Tukwila Shoreline Master Program (SMP) Motion Initials ITEMNO. Meeting Date Prepared by Mayo f review Council review 6/27/11 CL B 7/25/11 CL I 8/08/11 I CL I MA 8/15/11 I CL I A ITEM INFORMATION STA' SPONSOR: JACK PACE FF ORIGINAI..AGL;ND,\ DA'r'r 6/27/11 Department of Ecology (Ecology) Required Changes to Tukwila Shoreline Master Program (SMP) Motion Resolution Ordinances Bid Award Public Hearing ®IY/orkSessian ,A/It g Date Mtg Date Alt g Date 8115111 Mtg Date 11tg Date 6- 2717 -25 117tg Dale 5/11/11 Mayor HR DCD Finance .Fire IT .P&R Police PIr/ Ecology requires changes to the City's SMP and implementing regulations before the SMP can receive state approval. The required changes include adding: more detailed maps, a use matrix, an aquatic shoreline environment, sign standards; modifying certain permitted uses; and clarifying building height standards. A public hearing was opened 6 -27 -11 continued to 7 -25 -11 for testimony on the required changes; the hearing was closed and staff directed to identify housekeeping items within the scope of DOE's changes. COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. REVJFWED BY DATE: 05-11-11 WORK SESSION COMMITTEE UTAIR: RECOMMENDATIONS: SPONSOR /ADMIN. Department of Community Development COMMITTEE Consensus to Move Forward to Public Hearing COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $N /A Fund Source: Comments: I MTG.DATEI RECORD OF COUNCIL ACTION 5/11/11 Council Work Session on Ecology Required and Recommended Changes to SMP 6/27/11 I Public Hearing on SMP ordinances; Council continued public hearing to7/25/11 7/25/11 Public Hearing reconvened, testimony accepted, public hearing closed, forward to 8/8/11 8/08/11 Forward to next Regular Meeting MTG. DATE I ATTACHMENTS 8/15/11 Informational Memorandum dated 8/10/11 Revised Ordinance Repealing Ordinance 2269 (refer to8/ 8C. O. w packet for ordinance attachments) Revised Ordinance Repealing Ordinance 2270 (refer to 8 /8c.o packet for ordinance attachments) Revised Ordinance Repealing Ordinance 2271 Revised Ordinance Repealing Ordinance 2272 Map 6, illustrating possible change in shoreline environment 9 10 City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Members of the City Council FROM: Jack Pace, Community Development Director DATE: August 10, 2011 SUBJECT: Regular Council Meeting on Ecology Required and Recommended Revisions to City Adopted Shoreline Master Program ISSUE Should the City adopt new ordinances incorporating the Department of Ecology required and some recommended changes to the Shoreline Master Program as well as housekeeping items that fall within the scope of the Ecology required or recommended changes? BACKGROUND At the Committee of the Whole meeting on August 8, 2011, Council moved the four ordinances incorporating the Ecology required and some recommended changes as well as the housekeeping items that fell within the scope of the Ecology required changes to the Regular Meeting on August 15, 2011. The Council also heard from Mr. Joe Desimone, on behalf of the Desimone Trust, who requested a change of shoreline environment designation to a portion of a property the Trust owns on the Duwamish River. The map change would affect Map 6 of the color quarter section maps of the shoreline environments. Staff was asked to discuss with Ecology representative Dave Radabaugh whether the map change falls within the scope of Ecology required /recommended changes and would therefore be reviewed quickly with the other housekeeping items. As Mr. Radabaugh is out of the office until Monday, August 15, 2011, staff will bring this information to the Council meeting on August 15. DISCUSSION Staff was asked to provide information on the implications of the map change from High Intensity to Urban Conservancy on two properties on the Duwamish River. The buffer width is 100 feet for both the High Intensity and the Urban Conservancy shoreline environments. The permitted uses in each shoreline environment are very similar these uses are summarized on the Use Matrix found in the Shoreline Master Program in Section 8. One major difference is that in the High Intensity Environment, footnote 8 applies i.e. non- water- oriented uses may be allowed as a permitted use in the High Intensity environment where the City determines that water dependent or water enjoyment use of the shoreline is not feasible due to the configuration of the shoreline and water body. Footnote 8 is proposed to be removed CL Page 1 of 2 08/10/2011 11:52:00 AM W: \Long Range Projects \Shoreline \Council Review 2\ Council Info Memo 5 -4 -11 11 August 15, 2011 City Council Meeting Informational Memo August 10, 2011 from properties that are designated Urban Conservancy as one of the housekeeping revisions proposed by the City. The map change would affect two parcels. One parcel, owned by the Desimone Trust, is split between the Urban Conservancy and High Intensity environment; the second parcel is owned by another party. The two parcels border a small inlet to the Duwamish River on the north a storm water pipe, which conveys storm water from State Highway 99, discharges into this inlet. The banks are steep and the water level fluctuates due to tidal influence. This area is just south of the Turning Basin, which is the end of the portion of the Duwamish River that is navigable for large water craft. RECOMMENDATION At the August 15, 2011 Regular Meeting, the Council is being asked to adopt the four revised ordinances that include the Ecology required and some recommended changes, as well as the housekeeping changes that fall within the scope of the Ecology required /recommended changes. If the shoreline environment change falls within the scope of the Ecology required changes, staff recommends including that in the materials sent to the Department of Ecology for review. ATTACHMENTS Revised Ordinance repealing Ordinance 2269, and adopting a new shoreline master program (please refer to the 818 C. 0. W. packet for the attachment to this ordinance) Revised Ordinance repealing Ordinance 2270, and adopting shoreline comprehensive plan goals and policies (please refer to the 818 C.O.W. packet for the attachment to this ordinance) Revised Ordinance repealing Ordinance 2271, and establishing a new shoreline overlay district, as codified in TMC 18.44; and Revised Ordinance repealing Ordinance 2272, and establishing definitions, as codified in TMC 18.06. Map 6, illustrating possible change in shoreline environment from High Intensity to Urban Conservancy for two parcels CL Page 2 of 2 08/10/2011 11:52:56 AM W: \Long Range Projects \Shoreline \Council Review 2 \Council Memo 8 -10 -11 12 City of 'Tukwila Washington Ordinance Noe AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NO. 2269; REPEALING 1995 SHORELINE MASTER PROGRAM; APPROVING AND ADOPTING A NEW SHORELINE MASTER PROGRAM UPDATE FOR THE CITY OF TUKWILA TO INCORPORATE NEW STATE REQUIREMENTS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a new Comprehensive Plan in 1995 to implement the goals and policies of the Growth Management Act of 1990 and the King County County- wide Planning Policies; and WHEREAS, the Green /Duwamish River, a shoreline of the State regulated pursuant to RCW 90.58, runs through the entire length of the City of Tukwila; and WHEREAS, due to the presence of the Green /Duwamish River in the City, the 1995 Comprehensive Plan included policies addressing shorelines; and WHEREAS, as set forth in RCW 90.58.020, the State Legislature has found that shorelines of the State are among the most valuable and fragile of its natural resources and unrestricted construction on privately- and publicly -owned shorelines of the State is not in the best public interest; and WHEREAS, in RCW 90.58.020 the State Legislature directed local governments developing Shoreline Master Programs for shorelines of State -wide significance to give preference to the following uses, in order of preference, which: 1) recognize and protect the State -wide interest over local interest; 2) preserve the natural character of the shoreline; 3) result in long -term over short-term benefit; 4) protect the resources and ecology of the shoreline; 5) increase public access to publicly -owned areas of shore- lines; 6) increase recreational opportunities for the public in the shoreline; and 7) provide for any other element, as defined in RCW 90.58.100, deemed appropriate or necessary; and WHEREAS, in 2003 the Washington State Department of Ecology (DOE) adopted new rules, pursuant to RCW 90.58.200, to carry out provisions of the Shoreline Management Act; and W: Word Processing \Ordinances \SMP Adopting Update repeal Ord 2269 final 8 -15 -11 CL:bjs Page 1 of 4 WHEREAS, DOE's new rules are set forth in WAC 173 -26, and these new rules provide direction to local jurisdictions concerning the regulation of uses on shorelines of the State; and WHEREAS, RCW 90.58.080 directs local governments to develop or amend their shoreline master programs consistent with the required elements of the guidelines adopted by DOE, in accordance with a schedule established in that section; and WHEREAS, the timetable set forth in RCW 90.58.080(2)(a)(ii) required the City of Tukwila to amend its Shoreline Master Program by December 1, 2009; and WHEREAS, the City began an update of its Shoreline Master Program in 1998, established a Citizens Advisory Panel for initial policy and regulation guidance, prepared background studies and used consultant services to prepare technical documents; and WHEREAS, the City renewed and continued its updating of the Shoreline Master Program in 2008; and WHEREAS, an environmental checklist was prepared for the staff draft Shoreline Master Program update, accompanied by a draft "Cumulative Impacts Analysis," an "Inventory and Characterization Report" and draft "Restoration Plan," and a Determination of Non Significance was issued August 13, 2008; and WHEREAS, the Planning Commission reviewed a staff draft Shoreline Master Program, held a public hearing on August 27, 2008, continued the hearing to October 9, 2008 to allow additional public input, and recommended adoption of a revised Shoreline Master Program to the City Council in February 2009; and WHEREAS, the City Council held a public hearing on April 20, 2009, continued the hearing to July 13, 2009 and July 20, 2009 and conducted ten in -depth work sessions to review the Planning Commission Recommended Draft Shoreline Master Program; and WHEREAS, pursuant to WAC 173 -26 -186, City staff has analyzed the cumulative impacts of the staff draft Shoreline Master Program, the Planning Commission Recommended Draft Shoreline Master Program, and the Council revisions to the Planning Commission Recommended Draft Shoreline Master Program and determined that the Shoreline Master Program and accompanying goals, policies and regulations will achieve no net loss of shoreline ecological functions, as compared to current "baseline" conditions; and WHEREAS, pursuant to WAC 173 -26 -186, the proposed Shoreline Master Program contains policies and regulations to ensure no net loss of shoreline ecological functions, to address adverse cumulative impacts and to fairly allocate the burden of addressing cumulative impacts among proposed developments; and WHEREAS, the City Council reviewed written and verbal testimony and approved revisions to the Planning Commission Recommended Draft Shoreline Master Program to address issues raised by interested parties, individual Councilmembers, staff and the Department of Ecology; and W: Word Processing \Ordinances \SMP Adopting Update repeal Ord 2269 final 8 -15 -11 14 CL:bjs Page 2 of 4 WHEREAS, throughout the process of updating the Shoreline Master Program, a variety of methods were used to notify the general public and property owners along the shoreline of the proposed Shoreline Master Program update, including mailings to property owners and tenants, notice boards along the Green River Trail, postings on the City's web site, creation of a broadcast email group that received updates of the shoreline review process and articles in the City's newsletter; and WHEREAS, notice was provided to the Washington State Department of Commerce, pursuant to RCW 36.70A.106; and WHEREAS, the City Council adopted Ordinance No. 2269 on December 14, 2009, which ordinance adopted by reference a new Shoreline Master Program; and WHEREAS, Section 4 of Ordinance No. 2269 provided that it would not be effective until the later of five days after passage and publication or approval by the Washington State Department of Ecology of the Shoreline Master Program in the form attached to Ordinance No. 2269 as Exhibit A; and WHEREAS, the City thereafter submitted the program to the Department of Ecology for review and approval; and WHEREAS, the Department of Ecology accepted written public comments on the City's December 14, 2009 Shoreline Master Program, and held a public hearing on September 29, 2010; and WHEREAS, the Department of Ecology reviewed the adopted Shoreline Master Program and required and recommended certain changes to the Program as a condition of final Department of Ecology approval; and WHEREAS, notice of the review of DOE's required and recommended changes was provided via postings on the City's web site, e -mails to the broadcast e-mail group, and articles in the "Hazelnut" and "Tukwila Reporter;" and WHEREAS, the City Council conducted a Council work session on May 11, 2011, to consider the DOE required and recommended changes, and held a public hearing on June 27, 2011 to receive public testimony on the DOE required and recommended changes; and WHEREAS, the City Council concurs with and desires to adopt the required changes and some of the recommended changes; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Shoreline Master Program Established. The Shoreline Master Program with accompanying maps, as set forth in "Attachment A," is hereby adopted and shall become binding as of the effective date of this ordinance on all properties within the shoreline jurisdiction. W: Word Processing \Ordinances\SMP Adopting Update repeal Ord 2269 final 8 -15 -11 cL:bjs Page 3 of 4 15 Section 2. Repealer. Ordinance No. 2269, including the Shoreline Master Program adopted by reference in Section 1 thereof, is hereby repealed. Further, the Shoreline Master Program adopted by reference in Section 5 of the 1995 Comprehensive Plan, adopted in Section I.A. of Ordinance No. 1757, is hereby repealed. Section 3. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 4. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City and shall take effect and be in full force upon approval of the Shoreline Master Program by the Washington State Department of Ecology and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTH E NTI CATE D: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachment A: Shoreline Master Program W: Word Processing \Ordinances \SMP Adopting Update repeal Ord 2269 final 8 -15 -11 16 cL:bjs Page 4 of 4 City of Tukwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NO. 2270; AMENDING THE SHORELINE ELEMENT OF THE CITY'S COMPREHENSIVE LAND USE PLAN TO INCORPORATE POLICIES THAT REFLECT NEW STATE REQUIREMENTS FOR AREAS SUBJECT TO SHORELINE JURISDICTION; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a new Comprehensive Plan in 1995 to implement the goals and policies of the Growth Management Act of 1990 and the King County County- wide Planning Policies; and WHEREAS, the Green /Duwamish River, a shoreline of the State, regulated pursuant to RCW 90.58, runs through the entire length of the City of Tukwila; and WHEREAS, due to the presence of the Green /Duwamish River in the City, the 1995 Comprehensive Plan included policies addressing shorelines; and WHEREAS, as set forth in RCW 90.58.020, the State Legislature has found that shorelines of the State are among the most valuable and fragile of its natural resources and unrestricted construction on privately- and publicly -owned shorelines of the State is not in the best public interest; and WHEREAS, in RCW 90.58.020, the Legislature directed local governments developing Shoreline Master Programs for shorelines of State -wide significance to give preference to the following uses, in order of preference, which: 1) recognize and protect the State -wide interest over local interest; 2) preserve the natural character of the shoreline; 3) result in long -term over short -term benefit; 4) protect the resources and ecology of the shoreline; 5) increase public access to publicly -owned areas of the shorelines; 6) increase recreational opportunities for the public in the shoreline; and 7) provide for any other element, as defined in RCW 90.58.100, deemed appropriate or necessary; and WHEREAS, in 2003 the Washington State Department of Ecology (DOE), adopted new rules, pursuant to RCW 90.58.200, to carry out provisions of the Shoreline Management Act; and W: Word Processing \Ordinances \SMP Update Shoreline Element of Comp Plan- repeal Ord 2270 final 8 -15 -11 CL:bjs Page 1 of 5 17 WHEREAS, DOE's new rules are set forth in WAC 173 -26, and these new rules provide direction to local jurisdictions concerning the regulation of uses on shorelines of the State; and WHEREAS, RCW 90.58.080 directs local governments to develop or amend their shoreline master programs consistent with the required elements of the guidelines adopted by DOE, in accordance with a schedule established in that section; and WHEREAS, the timetable set forth in RCW 90.58.080(2)(a)(ii) required the City of Tukwila to amend its Shoreline Master Program by December 1, 2009; and WHEREAS, the City of Tukwila's Shoreline Master Program is implemented by regulations codified at TMC Chapter 18.44, which are in turn guided by the Tukwila Comprehensive Plan's Shoreline Goals and Policies; and WHEREAS, the Tukwila Comprehensive Plan's Shoreline Goals and Policies were adopted in Ordinance No. 1757, specifically, Goals and Policies 5.1 -5.10; and WHEREAS, in order to amend the Tukwila Shoreline Master Program, it is necessary to update the Comprehensive Plan Shoreline Goals and Policies, which have not been updated since 1995, to reflect the updated WAC 173 -26 regulations for shoreline master programs; and WHEREAS, the City began an update of its Shoreline Master Program in 1998, established a Citizens Advisory Panel for initial policy and regulation guidance, prepared background studies and used consultant services to prepare technical documents; and WHEREAS, the City renewed and continued its updating of the Shoreline Master Program in 2008; and WHEREAS, an environmental checklist was prepared for the staff draft Shoreline Master Program update, accompanied by a draft "Cumulative Impacts Analysis," an "Inventory and Characterization Report" and draft "Restoration Plan," and a Determination of Non Significance was issued August 13, 2008; and WHEREAS, the Planning Commission reviewed a staff draft Shoreline Master Program, held a public hearing on August 27, 2008, continued the hearing to October 9, 2008 to allow additional public input, revised the staff's draft Shoreline Master Program, and in February 2009 recommended the City Council adopt the Planning Commission's revised Shoreline Master Program; and WHEREAS, the City Council held a public hearing on April 20, 2009, continued the hearing to July 13, 2009 and July 20, 2009 and conducted ten in -depth work sessions to review the Planning Commission Recommended Draft Shoreline Master Program; and W: Word Processing \Ordinances \SMP Update Shoreline Element of Comp Plan- repeal Ord 2270 final 8 -15 -11 18 CL:bjs Page 2 of 5 WHEREAS, pursuant to WAC 173 -26 -186, City staff has analyzed the cumulative impacts of the staff draft Shoreline Master Program, the Planning Commission Recommended Draft Shoreline Master Program, and the Council revisions to the Planning Commission Recommended Draft Shoreline Master Program and determined that the Shoreline Master Program and accompanying goals, policies and regulations will achieve no net loss of shoreline ecological functions, as compared to current "baseline" conditions; and WHEREAS, pursuant to WAC 173 -26 -186, the proposed Shoreline Master Program contains policies and regulations to ensure no net loss of shoreline ecological functions, to address adverse cumulative impacts and to fairly allocate the burden of addressing cumulative impacts among proposed developments; and WHEREAS, the City Council reviewed written and verbal testimony and approved revisions to the Planning Commission Recommended Draft Shoreline Master Program to address issues raised by interested parties, individual Councilmembers and the Department of Ecology; and WHEREAS, throughout the process of updating the Shoreline Master Program, a variety of methods were used to notify the general public and property owners along the shoreline of the proposed Shoreline Master Program update, including mailings to property owners and tenants, notice boards along the Green River Trail, postings on the City's web site, creation of a broadcast email group that received updates of the shoreline review process and articles in the City's newsletter; and WHEREAS, one of the purposes of the Comprehensive Plan is to protect the natural environment, including shoreline areas, because they are an essential contributor to the overall welfare of the City's residents and businesses; and WHEREAS, the revisions to the Comprehensive Plan Policies for the shoreline address changes in shoreline character and the need to further protect the shoreline resources for public safety, flood control and habitat improvement; and WHEREAS, notice was provided to the Washington State Department of Commerce, pursuant to RCW 36.70A.106; and WHEREAS, the City Council adopted several ordinances on December 14, 2009, adopting by reference the components of a new Shoreline Master Program; and WHEREAS, those ordinances included Ordinance No. 2270, which amended certain Goals and Policies in the Shoreline Element of the Comprehensive Plan; and WHEREAS, Section 3 of Ordinance No. 2270 provided that it would not be effective until the later of five days after passage and publication or approval by the Washington State Department of Ecology of the Shoreline Master Program in the form attached to Ordinance No. 2270 as Attachment A; and WHEREAS, thereafter, City staff submitted Ordinance No. 2270 and the ordinances adopting the other components of the Shoreline Master Program to the Department of Ecology for review and approval; and W: Word Processing \Ordinances \SMP Update Shoreline Element of Comp Plan- repeal Ord 2270 final 8 -15 -11 CL:bjs Page 3 of 5 19 WHEREAS, the Department of Ecology accepted written public comments on the City's December 14, 2009 Shoreline Master Program, and held a public hearing on September 29, 2010; and WHEREAS, the Department of Ecology reviewed the adopted Shoreline Master Program and required and recommended certain changes to the Program as a condition of final Department of Ecology approval; and WHEREAS, notice of the review of DOE's required and recommended changes was provided via postings on the City's web site, a -mails to the broadcast e-mail group, and articles in the "Hazelnut" and "Tukwila Reporter;" and WHEREAS, the City Council conducted a work session on May 11, 2011, to consider the DOE required and recommended changes, and held a public hearing on June 27, 2011 to receive public testimony on the DOE required and recommended changes; and WHEREAS, the City Council concurs with and desires to adopt DOE's required changes and some of its recommended changes; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Comprehensive Plan Policies Amended. Goals and Policies 5.1 5.12 of the Shoreline Element of the City of Tukwila's Comprehensive Land Use Plan are hereby amended to read as shown in "Attachment A" to this ordinance. Section 2. Repealer. Ordinance No. 2270, including Goals and Policies 5.1 5.11 of the Shoreline Element of the City of Tukwila's Comprehensive Land Use Plan included as "Attachment A" thereto, is hereby repealed. Section 3. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 4. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force upon approval of the Shoreline Master Program by the Washington State Department of Ecology and publication as provided by law. W: Word Processing \Ordinances \SMP Update Shoreline Element of Comp Plan- repeal Ord 2270 final 8 -15 -11 CL:bjs Page 4 of 5 20 PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachment A: City of Tukwila Comprehensive Plan Policies W: Word Processing \Ordinances\SMP Update Shoreline Element of Comp Plan repeal Ord 2270 final 8 -15 -11 CL:bjs Page 5 of 5 21 22 City of TujCWi*1a Washington Ordinance Igo. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AMENDING REQUIREMENTS FOR SHORELINE REGULATIONS CODIFIED AT TUKWILA MUNICIPAL CODE CHAPTER 18.44, "SHORELINE OVERLAY," TO INCORPORATE NEW STATE REQUIREMENTS; REPEALING ORDINANCE 2271; REPEALING ORDINANCE NOS. 1796 §3 (PART), 1775 §2, AND 1758 §1 (PART), AS CODIFIED AT TUKWILA MUNICIPAL CODE CHAPTER 18.44, "SHORELINE OVERLAY PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a new Comprehensive Plan in 1995 to implement the goals and policies of the Growth Management Act of 1990 and the King County County- wide Planning Policies; and WHEREAS, the Green /Duwamish River, a shoreline of the State regulated pursuant to RCW 90.58, runs through the entire length of the City of Tukwila; and WHEREAS, due to the presence of the Green /Duwamish River in the City, the 1995 Comprehensive Plan included policies addressing shorelines; and WHEREAS, as set forth in RCW 90.58.020, the State Legislature has found that shorelines of the State are among the most valuable and fragile of its natural resources and unrestricted construction on privately- and publicly -owned shorelines of the State is not in the best public interest; and WHEREAS, in RCW 90.58.020 the State Legislature directed local governments developing Shoreline. Master Programs for shorelines of State -wide significance to give preference to the following uses, in order of preference, which: 1) recognize and protect the State -wide interest over local interest; 2) preserve the natural character of the shoreline; 3) result in long -term over short -term benefit; 4) protect the resources and ecology of the shoreline; 5) increase public access to publicly -owned areas of shore- lines; 6) increase recreational opportunities for the public in the shoreline; and 7) provide for any other element, as defined in RCW 90.58.100, deemed appropriate or necessary; and W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 1 of 79 iK WHEREAS, Puget Sound Chinook Salmon and Bull Trout have been listed as "threatened" under the Federal Endangered Species Act, and the Green /Duwamish River throughout Tukwila is a critical resource for these species, making shoreline habitat protection and restoration crucial, particularly in the Transition Zone portion of the river that extends from the East Marginal Way South bridge through the north City limits; and WHEREAS, in 2003 the Washington State Department of Ecology (DOE) adopted new rules, pursuant to RCW 90.58.200, to carry out provisions of the Shoreline Management Act; and WHEREAS, DOE's new rules are set forth in WAC 173 -26, and these new rules provide direction to local jurisdictions concerning the regulation of uses on shorelines of the State; and WHEREAS, RCW 90.58.080 directs local governments to develop or amend their shoreline master programs consistent with the required elements of the guidelines adopted by DOE, in accordance with a schedule established in that section; and WHEREAS, the timetable set forth in RCW 90.58.080(2)(a)(ii) required the City of Tukwila to amend its Shoreline Master Program by December 1, 2009; and WHEREAS, the City began an update of its Shoreline Master Program in 1998, established a Citizens Advisory Panel for initial policy and regulation guidance, prepared background studies and used consultant services to prepare technical documents; and WHEREAS, the City renewed and continued its updating of the Shoreline Master Program in 2008; and WHEREAS, an environmental checklist was prepared for the staff draft Shoreline Master Program update, accompanied by a draft "Cumulative Impacts Analysis," an "Inventory and Characterization Report" and draft "Restoration Plan," and a Determination of Non Significance was issued August 13, 2008; and WHEREAS, the Planning Commission reviewed a staff draft Shoreline Master Program, held a public hearing on August 27, 2008, continued the hearing to October 9, 2008 to allow additional public input, and recommended adoption of a revised Shoreline Master Program to the City Council in February 2009; and WHEREAS, the City Council held a public hearing on April 20, 2009, continued the hearing to July 13, 2009 and July 20, 2009 and conducted ten in -depth work sessions to review the Planning Commission Recommended Draft Shoreline Master Program; and WHEREAS, pursuant to WAC 173 -26 -186, City staff has analyzed the cumulative impacts of the staff draft Shoreline Master Program, the Planning Commission Recommended Draft Shoreline Master Program, and the Council revisions to the Recommended Draft Shoreline Master Program and determined the Shoreline Master W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 2 of 79 24 Program and accompanying goals, policies and regulations will achieve no net loss of shoreline ecological functions, as compared to current "baseline" conditions; and WHEREAS, pursuant to WAC 173 -26 -186, the proposed Shoreline Master Program contains policies and regulations to ensure no net loss of shoreline ecological functions, to address adverse cumulative impacts and to fairly allocate the burden of addressing cumulative impacts among proposed developments; and WHEREAS, the City Council reviewed written and verbal testimony and approved revisions to the Planning Commission Recommended Draft Shoreline Master Program to address issues raised by interested parties, individual Councilmembers, staff and the Department of Ecology; and WHEREAS, throughout the process of updating the Shoreline Master Program, a variety of methods were used to notify the general public and property owners along the shoreline of the proposed Shoreline Master Program update, including mailings to property owners and tenants, notice boards along the Green River Trail, postings on the City's web site, creation of a broadcast email group that received updates of the shoreline review process and articles in the City's newsletter; and WHEREAS, revisions to the City's shoreline regulations, codified in Tukwila Municipal Code (TMC) Chapter 18.44, are required to implement the updated Shoreline Master Program; and WHEREAS, new and revised Zoning Code definitions, codified in Chapter 18.06 of the Tukwila Municipal Code, are required to implement the changes to TMC Chapter 18.44 and the updated Shoreline Master Program (SMP); and WHEREAS, notice was provided to the Washington State Department of Commerce pursuant to RCW 36.70A.106; and WHEREAS, on December 14, 2009, the City Council adopted a series of ordinances that adopted by reference the components of a new Shoreline Master Program; and WHEREAS, those ordinances included Ordinance No. 2271, which adopted changes to Chapter 18.44 of the Tukwila Municipal Code as part of the new Shoreline Master Program; and WHEREAS, thereafter, City staff submitted Ordinance No. 2271 and other components of the Shoreline Master Program to the Department of Ecology for its review and approval; and WHEREAS, the Department of Ecology accepted written public comments on the City's December 14, 2009 Shoreline Master Program, and held a public hearing on September 29, 2010; and WHEREAS, the Department of Ecology thereafter reviewed the updated Shoreline Master Program (including Chapter 18.44 of the TMC) and required and recommended certain changes to the Program as a condition of DOE approval; and W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 3 of 79 25 WHEREAS, notice of the review of DOE's required and recommended changes was provided via postings on the City's web site, e -mails to the broadcast e-mail group, and articles in the "Hazelnut" and "Tukwila Reporter and WHEREAS, the City Council conducted a work session on May 11, 2011 on the DOE required and recommended changes and held a public hearing on June 27, 2011' to receive public testimony on the DOE required and recommended changes; and WHEREAS, the City Council concurs with and desires to adopt the Department of Ecology required changes and some of its recommended changes; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Shoreline Environment Designations Adopted. TMC Section 18.44.020 is hereby amended to read as follows: 18.44.020 Shoreline Environment Designations All shoreline within the City is designated "urban" and further identified as follows: 1. Shoreline Residential Environment. All lands zoned for residential use as measured 200 feet landward from the Ordinary High Water Mark (OHWM). 2. Urban Conservancy Environment. All lands not zoned for residential use upstream from the Turning Basin as measured 200 feet landward from the OHWM. 3. High Intensity Environment. All lands downstream from the Turning Basin as measured 200 feet landward from the OHWM. 4. Aquatic Environment. All water bodies within the City limits and its potential annexation areas under the jurisdiction of the Shoreline Management Act waterward of the Ordinary High Water Mark. The Aquatic Environment includes the water surface together with the underlying lands and the water column. Section 2. Interpretation of Use Matrix. TMC Section 18.44.030 is hereby amended to read as follows: 18.44.030 Principally Permitted Uses and Shoreline Use Matrix A. TMC Section 18.44.030(A), including the Use Matrix, specifies the uses that are permitted outright, permitted as a Conditional Use or prohibited altogether for each Shoreline Environment. Also included are special conditions and general requirements controlling specific uses. These regulations are intended to implement the purpose of each Shoreline Environment designation. B. In the matrix, shoreline environments are listed at the top of each column and the specific uses are listed along the left -hand side of each horizontal row. The cell at the intersection of a column and a row indicates whether a use may be allowed in a specific shoreline environment and whether additional use criteria apply. The matrix shall be interpreted as follows: W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 26 CL:bjs Page 4 of 79 1. If the letter "P" appears in the box at the intersection of the column and the row, the use may be allowed within the shoreline environment if the underlying zoning also allows the use. Shoreline (SDP, CUP and Variance) permits may be required. 2. If the letter "C" appears in the box at the intersection of the column and the row, the use may be allowed within the shoreline environment subject to the shoreline conditional use review and approval procedures specified in TMC Section 18.44.130 C. 3. If the letter "X" appears in the box at the intersection of the column and the row, the use is prohibited in that shoreline environment. SHORELINE USE MATRIX* P May be allowed subject to development Shoreline Urban standards and permitting requirements set forth Residential Conservancv in this SMP. C May be allowed as a Shoreline Conditional Use. X The use or activity is prohibited in shoreline jurisdiction environment. AGRICULTURE I Farming and farm related activities I COMMERCIAL (4) General Automotive services, gas (outside pumps allowed), washing, body and engine repair shops (enclosed within a building) Contractors storage yards Water oriented uses CIVICIINSTITUTIONAL General ESSENTIAL PUBLIC FACILITY (Water Dependent) ESSENTIAL PUBLIC FACILITY (Non -water Dependent) (9) FLOOD HAZARD MANAGEMENT Flood hazard reduction I Shoreline stabilization INDUSTRIAL (7) General Animal rendering Cement manufacturing Hazardous substance processing and handling hazardous waste treatment and storage facilities (on or off -site) (6) Rock crushing, asphalt or concrete batching or mixing, stone cutting, brick manufacture, marble works, and the assembly of products from the High Aquatic Intensity Environment W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 5 of 79 27 Non- Non- Non Buffer(1) Buffer Buffer (2) Buffer Buffer (3) Buffer X I X I X I P I X I X I X I X I X I X I P I X I P (8) I P (5) X X X C X C (8) X X i P i P i P i CP$) P P i i P X P I X I P I X I P I X C C C C C C P (5) C C C C C C C P I P I P I P I P I P I P P I P I P I P I P I P I P I X I X I P (5 I P I P (5 I P I P X I X I X I C I X I X I X X X I X I C I X I C I X X X X X X X X X X X C) X C (8) X W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 5 of 79 27 P May be allowed subject to development Shoreline Urban High Aquatic standards and permitting requirements set forth Residential Conservancy Intensity Environment in this SMP. C May be allowed as a Shoreline Conditional Use. X The use or activity is prohibited in shoreline Non- Non- Non jurisdiction environment. Buffer (1) Buffer Buffer (2) Buffer Buffer (3) Buffer above materials I I I I I I Salvage and wrecking operations j X I X I X I C I X I C (8) X Tow -truck operations, subject to all additional X X X C X P (8) X State and local regulations Truck terminals I X I X I X I P I X I P (8) I X Water oriented uses I X I X I P I P P I P I P MINING General I x I X I X I X I X I X l X Dredging I X I x I X I X I X I X l C PARKING ACCESSORY Parking areas limited to the minimum necessary X P X P X P X to support permitted or conditional uses RECREATION Recreation facilities (commercial indoor) X X X P I X I P(11) X Recreation facilities (commercial outdoor) I X j X I C (12) j C I X I X I X Recreation facilities, including boat launching P (1) P C (12) C P (3) P P (5) (public) RESIDENTIAL SINGLE FAMILYIMULTI- FAMILY Dwelling X (10) P X P X I X X Houseboats X I X I X X X X I X Live aboards X I X X X X X P (TRANSPORTATION General I C I C I C I C I C I C I C Park ride lots I X I X I X I C I X I C (9) I X I UTILITIES General (9) I C I P I C I P I C I P I C Hydroelectric and private utility power X X X X X X X generating plants *This matrix is a summary. Individual notes modify standards in this matrix. Detailed use standards are found in the text of this chapter. Permitted or conditional uses listed herein may also require a shoreline substantial development permit and other permits. (1) Additional permitted uses found at TMC 18.44.040 are allowed in the buffer. (2) Additional permitted uses found at TMC 18.44.050 are allowed in the buffer. (3) Additional permitted uses found at TMC 18.44.060 are allowed in the buffer. (4) Commercial uses mean those uses that are involved in wholesale, retail, service and business trade. Examples include office, restaurants, brew pubs, medical, dental and veterinary clinics, hotels, retail sales, hotel /motels, and warehousing. (5) Permitted only if water dependent. (6) Subject to compliance with state siting criteria RCW Chapter 70.105 (See also Environmental Regulations, TMC 18.44.090). W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 6 of 79 W (7) Industrial uses mean those uses that are facilities for manufacturing, processing, assembling and /or storing of finished or semi finished goods with supportive office and commercial uses. Examples include manufacturing, processing and /or assembling such items as electrical or mechanical equipment, previously manufactured metals, chemicals, light metals, plastics, solvents, soaps, wood, machines, food, pharmaceuticals, previously prepared materials; warehousing and wholesale distribution; sales and rental of heavy machinery and equipment; and internet data centers. (8) Non water oriented uses may be allowed as a permitted use where the City determines that water dependent or water enjoyment use of the shoreline is not feasible due to the configuration of the shoreline and water body. (9) Allowed in shoreline jurisdiction when it is demonstrated that there is no feasible alternative to locating the use within shoreline jurisdiction. (10) Additional development may be allowed consistent with TMC 18.44.130 E. 2. f. A shoreline conditional use permit is required for water oriented accessory structures that exceed the height limits of the Shoreline Residential Environment. (11) Limited to athletic or health clubs. (12) Permitted only if water oriented. C. In addition to the matrix above, the following general use requirements also apply to all development within the shoreline jurisdiction. Additional requirements controlling specific uses are set forth for each Shoreline Environment designation, to implement the purpose of the respective Shoreline Environment designations. 1. The first priority for City -owned property within the shoreline jurisdiction shall be reserved for water dependent uses including but not limited to habitat restoration, followed by water enjoyment uses, public access, passive recreation, passive open space uses, or public educational purposes. 2. No hazardous waste handling, processing or storage is allowed within the SMA shoreline jurisdiction, unless incidental to a use allowed in the designated shoreline environment and adequate controls are in place to prevent any releases to the shoreline /river. 3. Overwater structures, shall not cause a net loss of ecological function, interfere with navigation or flood management, or present potential hazards to downstream properties or facilities. They shall comply with the standards in the Overwater Structures Section of TMC Section 18.44.070(K). 4. Parking as a primary use is not permitted, except for existing Park and Ride lots, where adequate stormwater collection and treatment is in place to protect water quality. Parking is permitted only as an accessory to a permitted or conditional use in the shoreline jurisdiction. 5. All development, activities or uses, unless it is an approved overwater, flood management structure or shoreline restoration project, shall be prohibited waterward of the OHWM. Section 3. Shoreline Residential Environment Uses Adopted. TMC Section 18.44.040 is hereby amended to read as follows: W: Word Processing \OrdinanceskSMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 7 of 79 29 18.44.040 Shoreline Residential Environment Uses A. Shoreline Residential Buffer Delineated Uses. The Shoreline Residential River Buffer shall consist of the area needed to achieve a 2.5:1 slope of the river bank, measured from the toe of the bank to the top of the bank, plus 20 linear feet measured from the top of the bank landward; provided, that in no case shall the Shoreline Residential Buffer be less than 50 feet landward of the OHWM. 1. Permitted Uses. No uses or structures are permitted in the Shoreline Residential Buffer except for the following: a. Shoreline restoration projects. b. Over -water structures subject to the standards in the Over -water Structures Section associated with water dependent uses, public access, recreation, flood control or channel management. Private, single residence piers for the sole use of the property owner shall not be considered an outright use on the shoreline. A dock may be allowed when the applicant has demonstrated a need for moorage and that the following alternatives have been investigated and are not available or feasible: (1) commercial or marina moorage; (2) floating moorage buoys; (3) joint use moorage pier /dock. c. Public parks, recreation and open space. d. Public pedestrian bridges. e. Public and /or private promenades, footpaths or trails. f. Recreation structures such as benches, tables, viewpoints, and picnic shelters, provided no such structure shall exceed 15 feet in height or 25 square feet in area or block views to the shoreline from adjacent properties. g. Signs conforming to the development standards of this chapter. h. Construction, maintenance or re- development of levees for flood control purposes, provided that any new or redeveloped levee shall meet the applicable levee requirements of this chapter. Vehicle bridges, only if connecting public rights -of -way. j. Utility towers and utilities, except the provision, distribution, collection, transmission or disposal of refuse. k. Fire lanes when co- located with levee maintenance roads. I. New shoreline stabilization utilizing the development standards in TMC Section 18.44.070(F). W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 8 of 79 30 m. Water dependent uses and their structures, as long as there is no net loss of shoreline ecological function. n. Fences, provided the maximum height of a fence along the shoreline is four feet and the fence does not extend waterward beyond the top of the bank. Chain link fences must be vinyl coated. o. Existing essential streets, roads and rights -of -way may be maintained or improved. p. Outdoor storage, only in conjunction with a water dependent use. q. Water- oriented essential public facilities, both above and below ground. r. Non water oriented essential public facilities, both above and below ground, provided it has been documented that no feasible location is available outside of the buffer. s. Landfill as part of an approved remediatioh plan for the purpose of capping contaminated sediments. t. Patios or decks not exceeding 18 inches in height, limited to a maximum 200 square feet and 50% of the width of the river frontage. Decks or patios must be located landward of the top of the bank and be constructed to be pervious and of environmentally friendly materials. If a deck or patio will have an environmental impact in the shoreline buffer, then commensurate mitigation shall be required. u. Support facilities for above or below ground utilities or pollution control, such as outfall facilities or other facilities that must have a physical connection to the shoreline to provide their support function, provided they are located at or below grade and as far from the OHWM as technically feasible. 2. Conditional Uses. Only the following may be allowed as a Conditional Use in the Shoreline Residential River Buffer subject to the requirements, procedures and conditions established by TMC Chapter 18.64 and shall be reviewed through a Shoreline Conditional Use Permit: a. Dredging activities when in compliance with all federal and state regulations, when necessary for navigation or remediation of contaminated sediments. b. Dredging for navigational purposes is permitted where necessary for assuring safe and efficient accommodation of existing navigational uses and then only when significant ecological impacts are minimized and when mitigation is provided. Maintenance dredging of established navigation channels and basins is restricted to maintaining previously dredged and /or existing authorized location, depth and width. Dredging of bottom materials for the purpose of obtaining fill material is prohibited. c. New private vehicle bridges. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 9 of 79 31 d. Fill minimally necessary to support water- dependent uses, public access, or for the alteration or expansion of a transportation facility of statewide significance currently located on the shoreline when it is demonstrated that alternatives to fill are not feasible. e. Bridges, approved above ground utility structures, and water dependent uses and their structures greater than 35 feet in height. B. Shoreline Residential Environment Outside of Buffer Permitted Uses. The following uses are permitted within the Shoreline Residential Environment outside of the Shoreline Residential River Buffer. Uses shall meet the purposes and criteria of the Shoreline Environment Designation section. 1. Permitted Uses. The Shoreline Residential Environment shall contain residential, recreational and limited commercial uses and accessory uses as allowed in the underlying zoning district. In addition, the Shoreline Residential Environment shall allow the following uses: a. All uses permitted in the Shoreline Residential River Buffer. b. For non residential uses, parking /loading and storage facilities located to the most upland portion of the property and adequately screened and /or landscaped in accordance with the Vegetation Protection and Landscaping section. c. Railroad tracks. d. Public or private roads. 2. Conditional Uses. All uses listed as Conditional Uses in the underlying zone may be allowed subject to the requirements, procedures and conditions established by TMC Chapter 18.64. A Shoreline Conditional Use Permit is required. Section 4. Urban Conservancy Environment Uses Adopted. TMC Section 18.44.050 is hereby amended to read as follows: 18.44.050 Urban Conservancy Environment Uses A. Urban Conservancy Environment Buffer Delineated. The Urban Conservancy Environment Buffer shall consist of that area measured 100 feet landward of the OHWM for non leveed portions of the river, and that area measured 125 feet landward from the OHWM for leveed portions of the river. B. Urban Conservancy Environment Buffer Uses. 1. Permitted Uses. The following uses are permitted in the Urban Conservancy River Buffer: a. Shoreline restoration projects. b. Over -water structures subject to the standards established in the Over water Structures Section, TMC Section 18.44.070(K), that are associated with water- W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 10 of 79 32 dependent uses, public access, recreation, flood control, channel management or ecological restoration. c. Public parks, recreation and open space. d. Public and /or private promenades, footpaths or trails. e. Public pedestrian bridges. f. Recreation structures such as benches, tables, viewpoints, and picnic shelters, provided no such structure shall exceed 15 feet in height and 25 square feet in area and views of the shoreline are not blocked from adjacent properties. g. Signs conforming to the development standards of this chapter. h. Construction, maintenance or re- development of levees for flood control purposes, provided that any new or re- developed levee shall meet the applicable levee requirements of this chapter. i. New vehicle bridges: permitted only if connecting public rights -of -way; existing public or private vehicle bridges may be maintained or replaced. j. Utility towers and utilities, except the provision, distribution, collection, transmission or disposal of refuse. k. Levee maintenance roads. I. Plaza connectors between buildings and levees, not exceeding the height of the levee, are permitted for the purpose of providing and enhancing pedestrian access along the river and for landscaping purposes. m. New shoreline stabilization utilizing the development standards in the Shoreline Stabilization Section, TMC Section 18.44.070(F). n. Existing essential streets, roads and rights -of -way may be maintained or improved. o. Water dependent commercial and industrial development, if permitted by the underlying zoning district. p. Support facilities for above or below ground utilities or pollution control, such as outfall facilities or other facilities that must have a physical connection to the shoreline to provide their support function, provided they are located at or below grade and as far from the OHWM as technically feasible. q. Outdoor storage, only in conjunction with a water dependent use. ground. r. Water oriented essential public facilities, both above and below W: Word Processing\Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bis Page 11 of 79 33 s. Non water oriented essential public facilities, both above and below ground, provided it has been documented that no feasible location is available outside of the buffer. t. Landfill as part of an approved remediation plan for the purpose of capping contaminated sediments. u. Regional detention facilities that meet the City's Infrastructure Design and Construction Standards along with their supporting elements such as ponds, piping, filter systems and outfalls vested as of the effective date of this program or if no feasible alternative location exists. Any regional detention facility located in the buffer shall be designed such that a fence is not required, planted with native vegetation, designed to blend with the surrounding environment, and provide design features that serve both public and private use, such as an access road that can also serve as a trail. The facility shall be designed to locate access roads and other impervious surfaces as far from the river as practical. 2. Conditional Uses. Only the following may be allowed as a Conditional Use in the Shoreline Urban Conservancy Environment Buffer, subject to the requirements, procedures and conditions established by TMC Chapter 18.64 and shall be reviewed through a Shoreline Conditional Use Permit: a. Dredging activities where necessary for assuring safe and efficient accommodation of existing navigational uses and then only when significant ecological impacts are minimized and when mitigation is provided. b. Dredging for remediation of contaminated sediments when mitigation is provided. Dredging of bottom materials for the purpose of obtaining fill material is prohibited. Dredging activities must comply with all federal and state regulations. c. New private vehicle bridges. 34 d. Fill minimally necessary to support water dependent uses, public access, or for the alteration or expansion of a transportation facility of statewide significance currently located on the shoreline when it is demonstrated that alternatives to fill are not feasible. C. Urban Conservancy Environment Outside of Buffer Uses. The following uses are permitted in the Urban Conservancy Environment, outside of the Urban Conservancy Environment Buffer. Uses shall meet the purposes and criteria of the Urban Conservancy Environment as established in the Shoreline Environment Designation section. 1. Permitted Uses. All uses permitted in the Urban Conservancy Environment Buffer and /or the Shoreline Use Matrix may be allowed. 2. Conditional Uses. All uses listed as Conditional Uses in the underlying zone may be allowed subject to the requirements, procedures and conditions established by TMC Chapter 18.64. A Shoreline Conditional Use Permit shall be required. W: Word Processing\Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 12 of 79 D. Urban Conservancy Buffer Width Reduction. The Director may reduce the Urban Conservancy Environment Buffer as follows: 1. For property located within the 100 -foot buffer in non -levee portions of the river, the Urban Conservancy Environment Buffer may be reduced to that area occupied by the river bank plus 20 feet measured landward from the top of the bank; provided however, that the applicant must first re -slope the river bank to 2.5:1, provide a 20 -foot setback from the top of the new slope and vegetate both the river bank and the 20 -foot setback area in accordance with the standards in TMC Section 18.44.080, and provided that the Director determines that any buffer reduction will not result in direct, indirect or long -term adverse impacts to shoreline ecosystem functions. Further, a buffer enhancement plan, including removal of invasive plants and plantings using a variety of native vegetation that improves the functional attributes of the buffer and provides additional protection for the watercourse functions, must be approved by the Director and implemented by the applicant as a condition of the reduction. In no case shall the reduced buffer be less than 50 feet. 2. For property located within the 125 -foot buffer along leveed portions of the river, the Urban Conservancy Environment Buffer may be reduced to that area occupied by levee or river bank improvements meeting the minimum levee profile or other levee standards provided in this chapter, plus 10 feet measured landward from the landward toe of the levee or (if permitted by this chapter) floodwall. In the event that the owner provides the City with a 10 -foot levee maintenance easement, measured landward from the landward toe of the levee or levee wall and prohibiting the construction of any structures and allows the City to access the area to inspect the levee, then the buffer shall be reduced to the landward toe of the levee, or landward edge of the levee floodwall, as the case may be. 3. If fill is placed along the back slope of a new levee, the Urban Conservancy Environment Buffer may be reduced to the point where the ground plane intersects the back slope of the levee; provided, that the property owner must grant the City a levee maintenance easement measured 10 feet landward from the landward toe of the levee or levee wall, and which easement prohibits the construction of any structures and allows the City to access the area to inspect the levee and /or wall and make any necessary repairs. Section 5. High Intensity Environment Uses Adopted. TMC Section 18.44.060 is hereby amended to read as'follows: 18.44.060 High Intensity Environment Uses A. High Intensity Environment Buffer Delineated. The High Intensity Environment Buffer shall consist of an area measured 100 feet landward from the OHWM. The remaining area of shoreline jurisdiction is non -buffer area. B. High Intensity Environment Buffer— Uses. 1. Permitted Uses. The following uses are permitted in the High Intensity River Buffer: W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 13 of 79 35 a. Shoreline restoration projects. b. Over -water structures subject to the standards established in the Over water Structures Section that are associated with water dependent uses, public access, recreation, flood control, channel management or ecological restoration. c. Public parks, recreation and open space. d. Public and /or private promenades, footpaths or trails. e. Public pedestrian bridges. f. Recreation structures such as benches, tables, viewpoints, and picnic shelters, provided no such structure shall exceed 15 feet in height and 25 square feet in area and no views of the shoreline are blocked from adjacent properties. g. Signs conforming to the development standards of this chapter. h. Construction, maintenance or re- development of levees for flood control purposes, provided that any new or re- developed levee shall meet the applicable levee requirements of this chapter. i. New vehicle bridges: permitted only if connecting public rights -of -way; existing public or private vehicle bridges may be maintained or replaced. j. Utility towers and utilities, except the provision, distribution, collection, transmission or disposal of refuse. k. Levee maintenance roads. I. Plaza connectors between buildings and levees, not exceeding the height of the levee, are permitted for the purpose of providing and enhancing pedestrian access along the river and for landscaping purposes. m. New shoreline stabilization utilizing the development standards in the Shoreline Stabilization Section, TMC Section 18.44.070(F). n. Existing essential streets, roads and rights -of -way may be maintained or improved. o. Water- dependent commercial and industrial development, if permitted by the underlying zoning district. p. Support facilities for above or below ground utilities or pollution control, such as outfall facilities or other facilities that must have a physical connection to the shoreline to provide their support function, provided they are located at or below grade and as far from the OHWM as technically feasible. q. Outdoor storage, only in conjunction with a water dependent use. ground. r. Water- oriented essential public facilities, both above and below W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 36 CL:bjs Page 14 of 79 s. Non water oriented essential public facilities, both above and below ground, provided it has been documented that no feasible location is available outside of the buffer. t. Landfill as part of an approved remediation plan for the purpose of capping contaminated sediments. u. Regional detention facilities that meet the City's Infrastructure Design and Construction Standards along with their supporting elements such as ponds, piping, filter systems and outfalls vested as of the effective date of this program or if no feasible alternative location exists. Any regional detention facility located in the buffer shall be designed such that a fence is not required, planted with native vegetation, designed to blend with the surrounding environment, and provide design features that serve both public and private use, such as an access road that can also serve as a trail. The facility shall be designed to locate access roads and other impervious surfaces as far from the river as practical. 2. Conditional Uses. Only the following may be allowed as a Conditional Use in the Shoreline High Intensity Environment Buffer subject to the requirements, procedures and conditions established by TMC Chapter 18.64. A Shoreline Conditional Use Permit shall be required. a. Dredging activities where necessary for assuring safe and efficient accommodation of existing navigational uses and then only when significant ecological impacts are minimized and when mitigation is provided. b. Dredging for remediation of contaminated sediments when mitigation is provided. Dredging of bottom materials for the purpose of obtaining fill material is prohibited. Dredging activities must comply with all federal and state regulations. c. New private vehicle bridges. d. Fill minimally necessary to support water dependent uses, public access, or for the alteration or expansion of a transportation facility of statewide significance currently located on the shoreline when it is demonstrated that alternatives to fill are not feasible. C. Shoreline Urban High Intensity Environment Uses. The Shoreline High Intensity Environment shall consist of the remaining area within the 200 foot Shoreline Jurisdiction that is not within the Shoreline High Intensity Environment Buffer area. Uses shall meet the purposes and criteria of the Shoreline Environment Designations section. 1. Permitted Uses. All uses permitted in the High Intensity Environment Buffer and /or the Shoreline Use Matrix may be allowed. 2. Conditional Uses. All uses listed as Conditional Uses in the underlying zone may be allowed subject to the requirements, procedures and conditions established by TMC Chapter 18.64. A Shoreline Conditional Use Permit shall be required. W: Word Processing\Ordinances\SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 15 of 79 37 D. Shoreline High Intensity Environment Buffer Reduction. The Director may reduce the High Intensity Environment Buffer where the applicant re- slopes the river bank to be no steeper than 3:1 above the OHWM, provides a 20 -foot setback from the top of the new slope, vegetates both the river bank and the 20 -foot setback area in accordance with the standards in the Vegetation Protection and Landscaping Section, and the Director determines there will be no net loss of shoreline ecological functions. In no case shall the reduced buffer be less than 50 feet. On properties where the bank slope currently is no steeper than 3:1 or where the property owner has already re- sloped the river bank, provided a 20 -foot setback and vegetated the bank and setback as provided in this chapter, the buffer width will be the distance measured from the OHWM to the top of the bank, plus 20 feet. Section 6. Aquatic Environment Uses Adopted. A new TMC Section 18.44.065 pertaining to shoreline regulations for uses within the Aquatic Environment is hereby established to read as follows: 18.44.065 Aquatic Environment —Uses A. Aquatic Environment Delineated. The Aquatic Environment consists of all water bodies within the City limits and its potential annexation areas under the jurisdiction of the Shoreline Management Act waterward of the Ordinary High Water Mark. The Aquatic Environment includes the water surface together with the underlying lands and the water column. B. Permitted Uses. The following uses are permitted in the Aquatic Environment. Uses and activities within the Aquatic Environment must be compatible with the adjoining shoreline environment: 1. Shoreline restoration projects. 2. Over -water structures subject to the standards established in the Over water Structures Section that are associated with water dependent uses, public access, recreation, flood control, channel management or ecological restoration. 3. Maintenance or redevelopment of levees for flood control purposes, provided that any redevelopment of a levee shall meet the applicable levee regulations of this chapter. 4. New shoreline stabilization utilizing the development standards in the Shoreline Stabilization Section. 5. Water- dependent commercial and industrial development, if permitted by the underlying zoning district. 6. Boats moored at a dock or marina. No boats may be moored on tidelands or in the river channel. 7. Fill for ecological restoration. W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 38 CL IJis Page 16 of 79 C. Conditional Uses. Only the following may be allowed as a Conditional Use in the Shoreline Aquatic Environment Buffer subject to the requirements, procedures and conditions established by this program: 1. Dredging activities where necessary for assuring safe and efficient accommodation of existing navigational uses and then only when significant ecological impacts are minimized and when mitigation is provided. 2. Dredging for remediation of contaminated sediments when mitigation is provided. Dredging of bottom materials for the purpose of obtaining fill material is prohibited. Dredging activities must comply with all federal and state regulations. 3. Fill minimally necessary to support water dependent uses, public access, or for the alteration or expansion of a transportation facility of statewide significance currently located on the shoreline when it is demonstrated that alternatives to fill are not feasible. Section 7. Development Standards. TMC Section 18.44.070 is hereby amended to read as follows: 18.44.070 Development Standards A. Applicability. The development standards of this chapter apply to work that meets the definition of substantial development except for vegetation removal per TMC Section 18.44.080, which applies to all shoreline development. The term "substantial development" applies to non conforming, new or re- development. Non conforming uses, structures, parking lots and landscape areas, will be governed by the standards in TMC Section 18.44.130(E), "Non- Conforming Development." B. Shoreline Residential Development Standards. A shoreline substantial development permit is not required for construction within the Shoreline Residential Environment by an owner, lessee or contract purchaser of a single family residence for his /her own use or for the use of a family member. Such construction and all normal appurtenant structures must otherwise conform to this chapter. Short subdivisions and subdivisions are not exempt from obtaining a Shoreline Substantial Development Permit. 1. Shoreline Residential Environment Standards. The following standards apply to the Shoreline Residential Environment: a. The development standards of the applicable underlying zoning district (Title 18, Tukwila Municipal Code) shall apply. b. New development and uses must be sited so as to allow natural bank inclination of 2.5 :1 slope with a 20 -foot setback from the top of the bank. The Director may require a riverbank analysis as part of any development proposal. c. Utilities such as pumps, pipes, etc., shall be suitably screened with native vegetation per the standards in the Vegetation Protection and Landscaping Section. W: Word Processing\Ordinances\SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bjs Page 17 of 79 39 d. New shoreline stabilization, repair of existing stabilization or modifications to the river bank must comply with the standards in the Shoreline Stabilization Section, TMC Section 18.44.070(F). e e. Short plats of five to nine lots or formal subdivisions must be designed to provide public access to the river in accordance with the Public Access Section, TMC Section 18.44.100. Signage is required to identify the public access point(s). f. Parking facilities associated with single family residential development or public recreational facilities are subject to the specific performance standards set forth in the Off Street Parking Section, TMC Section 18.44.070(1). g. Fences, freestanding walls or other structures normally accessory to residences must not block views of the river from adjacent residences or extend waterward beyond the top of the bank. Chain link fencing must be vinyl coated. h. Recreational structures permitted in the buffer must provide buffer mitigation. i. The outside edge of surface transportation facilities, such as railroad tracks, streets, or public transit shall be located no closer than 50 feet from the OHWM, except where the surface transportation facility is bridging the river. j. Except for bridges, approved above ground utility structures, and water dependent uses and their structures, the maximum height for structures shall be 30 feet. For bridges, approved above ground utility structures, and water dependent uses and their structures, the height limit shall be as demonstrated necessary to accomplish the structure's primary purpose. Bridges, approved above ground utility structures, and water dependent uses and their structures greater than 35 feet in height require approval of a Shoreline Conditional Use Permit. 2. Design Review. Design review is required for non residential development in the Shoreline Residential Environment. C. High Intensity, Urban Conservancy and Aquatic Environment Development Standards. 1. Standards. The following standards apply in the High Intensity, Urban Conservancy and Aquatic Environments. a. The development standards for the applicable underlying zoning district (Title 18, Tukwila Municipal Code) shall apply. b. All new development performed by public agencies, or new multi- family, commercial, or industrial development shall provide public access in accordance with the standards in the Public Access Section. c. Development or re- development of properties in areas of the shoreline armored with revetments or other hard armoring other than levees, or with non armored river banks, must comply with the Vegetation Protection and Landscaping Section, TMC Section 18.44.080. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bjs Page 18 of 79 d. Any new shoreline stabilization or repairs to existing stabilization must comply with Shoreline Stabilization Section, TMC Section 18.44.070(F). e. Over -water structures shall be allowed only for water dependent uses and the size limited to the minimum necessary to support the structure's intended use and shall result in no net loss to shoreline ecological function. Over -water structures must comply with the standards in the Over -water Structures Section, TMC Section 18.44.070(K). 2. Setbacks and Site Configuration. a. The yard setback adjacent to the river is the buffer width established for the applicable shoreline environment. b. A fishing pier, viewing platform or other outdoor feature that provides access to the shoreline is not required to meet a setback from the OHWM. 3. Height Restrictions. Except for bridges, approved above ground utility structures, and water dependent uses and their structures, to preserve visual access to the shoreline and avoid massing of tall buildings within the shoreline jurisdiction, the maximum height for structures shall be as follows: a. 15 feet where located within the River Buffer; b. 45 feet between the outside landward edge of the River Buffer and 200 feet of the OHWM. c. Provided, no permit shall be issued for any new or expanded building or structure of more than 35 feet above average grade level on shorelines of the State that will obstruct the view of a substantial number of residences on areas adjoining such shorelines. For any building that is proposed to be greater than 35 feet in height in the shoreline jurisdiction, the development proponent must demonstrate the proposed building will not block the views of a substantial number of residences. The Director may approve a 15% increase in height if the project proponent provides additional restoration and /or enhancement of the shoreline buffer, beyond what may otherwise be required in accordance with the standards of TMC Section 18.44.080, "Vegetation Protection and Landscaping." if the required buffer has already been restored, the project proponent may provide a 20% wider buffer, and /or enhanced in order to obtain the 15% increase in height in accordance with TMC Section 18.44.080, "Vegetation Protection and Landscaping." 4. Lighting. In addition to the lighting standards in TMC Chapter 18.60, "Board of Architectural Review," lighting for the site or development shall be designed and located so that: a. The minimum light levels in parking areas and paths between the building and street shall be one -foot candle. W: Word Processing\Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 ci_:ais Page 19 of 79 41 b. Lighting shall be designed to prevent light spillover and glare on adjacent properties and on the river channel, be directed downward so as to illuminate only the immediate area, and be shielded to eliminate direct off -site illumination. c. The general grounds need not be lighted. d. The lighting is incorporated into a unified landscape and /or site plan. D. Surface Water and Water Quality. The following standards apply to all shoreline development. 1. New surface water systems may not discharge directly into the river or streams tributary to the river without pre- treatment to reduce pollutants and meet State water quality standards. 2. Such pre- treatment may consist of biofiltration, oil /water separators, or other methods approved by the City of Tukwila Public Works Department. 3. Shoreline development, uses and activities shall not cause any increase in surface runoff, and shall have adequate provisions for storm water detention /infiltration. 4. Stormwater outfalls must be designed so as to cause no net loss of shoreline ecological functions or adverse impacts where functions are impaired. New stormwater outfalls or maintenance of existing outfalls must include shoreline restoration as part of the project. 5. Shoreline development and activities shall have adequate provisions for sanitary sewer. 6. Solid and liquid wastes and untreated effluents shall not be allowed to enter any bodies of water or to be discharged onto shorelands. 7. The use of low impact development techniques is required, unless such techniques conflict with other provisions of the SMP or are shown to not be feasible due to site conditions. E. Flood Hazard Reduction. The following standards apply to all shoreline development. 1. New structural flood hazard reduction structures shall be allowed only when it can be demonstrated by a Riverbank Analysis that: a. They are necessary to protect existing development; b. Non structural measures are not feasible; and c. Impacts to ecological functions and priority species and habitats can be successfully mitigated so as to assure no net loss. 2. Flood hazard structures must incorporate appropriate vegetation restoration and conservation actions consistent with the standards of the Vegetation Protection and Landscaping Section. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 20 of 79 42 3. Levees, berms and similar flood control structures, whether new or redeveloped, shall be designed to meet the minimum levee profile, except as provided in Section 18.44.070.E.10 below. 4. Publicly- funded structural measures to reduce flood hazards shall improve public access or dedicate and provide public access unless public access improvements would cause unavoidable health or safety hazards to the public, inherent and unavoidable security problems, or significant ecological impacts that cannot be mitigated. 5. Rehabilitation or replacement of existing flood control structures, such as levees, with a primary purpose of containing the 1% annual chance flood event, shall be allowed where it can be demonstrated by an engineering analysis that the existing structure: a. Does not provide an appropriate level of protection for surrounding lands; or b. Does not meet the minimum levee profile or other appropriate engineering design standards for stability (e.g., over steepened side slopes for existing soil and /or flow conditions); and c. Repair of the existing structure will not cause or increase significant adverse ecological impacts to the shoreline. 6. Rehabilitated or replaced flood hazard reduction structures shall not extend the toe of slope any further waterward of the OHWM than the existing structure. 7. New structural flood hazard reduction measures, such as levees, berms and similar flood control structures shall be placed landward of the floodway as determined by the best information available. 8. New, redeveloped or replaced structural flood hazard reduction measures shall be placed landward of associated wetlands, and designated fish and wildlife habitat conservation areas. 9. No commercial, industrial, office or residential development shall be located within a floodplain without a Flood Control Zone Permit issued by the City. No development shall be located within a floodway except as otherwise permitted. 10. New, redeveloped or replaced flood hazard reduction structures may deviate from the minimum levee profile only as follows. A floodwall may be substituted for all or a portion of a levee back slope only where necessary to avoid encroachment or damage to a structure legally constructed prior to the date of adoption of this subsection, and which structure has not lost its nonconforming status. The floodwall shall be designed to be the minimum necessary to provide 10 feet of clearance between the levee and the building, or the minimum necessary to preserve access needed for building functionality while meeting all engineering safety standards. A floodwall may also be used where necessary to prevent the levee from encroaching upon a railroad easement recorded prior to the date of adoption of this subsection. If a floodwall is W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 Page 21 of 79 CL:bjs 43 permitted under this subsection the level physically possible to achieve such a slope; close to 2.5H:1 V as physically possible. slope must be 2.5HAV unless it is not in that instance, the levee slope must be as F. Shoreline Stabilization. The provisions of this section apply to those structures or actions intended to minimize or prevent erosion of adjacent uplands and /or failure of riverbanks resulting from waves, tidal fluctuations or river currents. Shoreline stabilization or armoring involves the placement of erosion resistant materials (e.g., large rocks and boulders, cement, pilings and /or large woody debris (LWD)) or the use of bioengineering techniques to reduce or eliminate erosion of shorelines and risk to human infrastructure. This form of shoreline stabilization is distinct from flood control structures and flood hazard reduction measures (such as levees). The terms "shoreline stabilization," "shoreline protection" and "shoreline armoring" are used interchangeably 1. Shoreline protection shall not be considered an outright permitted use and shall be permitted only when it has been demonstrated through a riverbank analysis and report that shoreline protection is necessary for the protection of existing legally established structures and public improvements. 2. New development and re- development shall be designed and configured on the lot to avoid the need for new shoreline stabilization. Removal of failing shoreline stabilization shall be incorporated into re- development design proposals wherever feasible. 3. Replacement of lawfully established, existing bulkheads or revetments are subject to the following priority system: a. The first priority for replacement of bulkheads or revetments shall be landward of the existing bulkhead. b. The second priority for replacement of existing bulkheads or revetments shall be to replace in place (at the bulkhead's existing location). 4. When evaluating a proposal against the above priority system, at a minimum the following criteria shall be considered: a. Existing topography; b. Existing development; c. Location of abutting bulkheads; d. Impact to shoreline ecological functions; and, ii e. Impact to river hydraulics, potential changes in geomorphology, and to other areas of the shoreline. 5. Proponents of new or replacement hard shoreline stabilization (e.g. bulkheads or revetments) must demonstrate through a documented river bank analysis that bioengineered shoreline protection measures or bioengineering erosion control designs will not provide adequate upland protection of existing structures or would pose W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 22 of 79 a threat or risk to adjacent property. The study must also demonstrate that the proposed hard shoreline stabilization will not adversely affect other infrastructure or adjacent shorelines. 6. Where allowed, shoreline armoring shall be designed, constructed and maintained in a manner that does not result in a net loss of shoreline ecological functions, including fish habitat, and shall conform to the requirements of the 2004 Washington State Department of Fish and Wildlife (or as amended) criteria and guidelines for integrated stream bank protection (Washington State Department of Fish and Wildlife, Washington Department of Ecology and U.S. Fish and Wildlife Service, Olympia, Washington), U. S. Army Corps of Engineers and other regulatory requirements. The hard shoreline stabilization must be designed and approved by an engineer licensed in the State of Washington and qualified to design shoreline stabilization structures. 7. Shoreline armoring shall be designed to the minimum size, height, bulk and extent necessary to remedy the identified hazard. 8. An applicant must demonstrate the following in order to qualify for the RCW 90.58.030(30(e)(iii)(ii) exemption from the requirement to obtain a shoreline substantial development permit for a proposed single family bulkhead and to insure that the bulkhead will be consistent with the SMP: a. Erosion from currents or waves is imminently threatening a legally established single family detached dwelling unit or one or more appurtenant structures; and b. The proposed bulkhead is more consistent with the City's Master Program in protecting the site and adjoining shorelines and that non structural alternatives such as slope drainage systems, bioengineering or vegetative growth stabilization, are not feasible or will not adequately protect a legally established residence or appurtenant structure; and c. The proposed bulkhead is located landward of the OHWM or it connects to adjacent, legally established bulkheads; and d. The maximum height of the proposed bulkhead is no more than one foot above the elevation of extreme high water on tidal waters as determined by the National Ocean Survey published by the National Oceanic and Atmospheric Administration. 9. Bulkheads or revetments shall be constructed of suitable materials that will serve to accomplish the desired end with maximum preservation of natural characteristics. Materials with the potential for water quality degradation shall not be used. Design and construction methods shall consider aesthetics and habitat protection. Automobile bodies, tires or other junk or waste material that may release undesirable chemicals or other material shall not be used for shoreline protection. 10. The builder of any bulkhead or revetment shall be financially responsible for determining the nature and the extent of probable adverse effects on fish and wildlife W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bis Page 23 of 79 45 or on the property of others caused by his /her construction and shall propose and implement solutions approved by the City to minimize such effects. 11. When shoreline stabilization is required at a public access site, provision for safe access to the water shall be incorporated in the design whenever possible. 12. Placement of bank protection material shall occur from the top of the bank and shall be supervised by the property owner or contractor to ensure material is not dumped directly onto the bank face. 13. Bank protection material shall be clean and shall be of a sufficient size to prevent its being washed away by high water flows. 14. When riprap is washed out and presents a hazard to the safety of recreational users of the river, it shall be removed by the owner of such material. 15. Bank protection associated with bridge construction and maintenance may be permitted subject to the provisions of the SMP and shall conform to provisions of the State Hydraulics Code (RCW 77.55) and U.S. Army Corps of Engineer regulations. G. Archaeological, Cultural and Historical Resources. In addition to the requirements of TMC 18.50.110, Archaeological /Paleontological Information Preservation Requirements, the following regulations apply. 1. All land use permits for projects within the shoreline jurisdiction shall be coordinated with affected tribes. 2. If the City determines that a site has significant archaeological, natural scientific or historical value, a substantial development that would pose a threat to the resources of the site shall not be approved. 3. Permits issued in areas documented to contain archaeological resources require a site inspection or evaluation by a professional archaeologist in coordination with affected Indian tribes. The City may require that development be postponed in such areas to allow investigation of public acquisition potential, retrieval and preservation of significant artifacts and /or development of a mitigation plan. Areas of known or suspected archaeological middens shall not be disturbed and shall be fenced and identified during construction projects on the site. 4. Developers and property owners shall immediately stop work and notify the City of Tukwila, the Washington Department of Archaeology and Historic Preservation and affected Indian tribes if archaeological resources are uncovered during excavation. 5. In the event that unforeseen factors constituting an emergency, as defined in RCW 90.58.030, necessitate rapid action to retrieve or preserve artifacts or data identified above, the project may be exempted from any shoreline permit requirements. The City shall notify the Washington State Department of Ecology, the State Attorney General's Office and the State Department of Archaeology and Historic Preservation Office of such an exemption in a timely manner. W: Word Processing \Ordinances \SMP- Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 46 CL:bjs Page 24 of 79 6. Archaeological excavations may be permitted subject to the provision of this chapter. 7. On sites where historical or archaeological resources have been identified and will be preserved in situ, public access to such areas shall be designed and managed so as to give maximum protection to the resource and surrounding environment. 8. Interpretive signs of historical and archaeological features shall be provided subject to the requirements of the Public Access Section when such signage does not compromise the protection of these features from tampering, damage and /or destruction. H. Environmental Impact Mitigation. 1. All shoreline development and uses shall occur in a manner that results in no net loss of shoreline ecological functions through the careful location and design of all allowed development and uses. In cases where impacts to shoreline ecological functions from allowed development and uses are unavoidable, those impacts shall be mitigated according to the provisions of this section; in that event, the "no net loss" standard is met. 2. To the extent Washington's State Environmental Policy Act of 1971 (SEPA), chapter 43.21C RCW, is applicable, the analysis of environmental impacts from proposed shoreline uses or developments shall be conducted consistent with the rules implementing SEPA (TMC Chapter 21.04 and WAC 197 -11). 3. For all development, mitigation sequencing shall be applied in the following order of priority: a. Avoiding the impact altogether by not taking a certain action or parts of an action. b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps to avoid or reduce impacts. c. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment. d. Reducing or eliminating the impact over time by preservation and maintenance operations. e. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments. f. Monitoring the impact and the compensation projects and taking appropriate corrective measures. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 25 of 79 47 4. In determining appropriate mitigation measures applicable to shoreline development, lower priority measures shall be applied only where higher priority measures are determined by the City to be infeasible or inapplicable. 5. When mitigation measures are appropriate pursuant to the priority of mitigation sequencing above, preferential consideration shall be given to measures that replace the impacted functions directly and in the immediate vicinity of the impact. However, if mitigation in the immediate vicinity is not scientifically feasible due to problems with hydrology, soils, waves or other factors, then off -site mitigation within the Shoreline Jurisdiction may be allowed if consistent with the Shoreline Restoration Plan. Mitigation for projects in the Transition Zone must take place in the Transition Zone. In the event a site is not available in the Transition Zone to carry out required mitigation, the project proponent may contribute funds equivalent to the value of the required mitigation to an existing or future restoration project identified in the CIP to be carried out by a public agency in the Transition Zone. I. Off Street Parking and Loading Requirements. In addition to the parking requirements in TMC 18.56, the following requirements apply to all development in the shoreline jurisdiction. 1. Any parking, loading, or storage facilities located between the river and any building must incorporate additional landscaping in accordance with the Vegetation Protection and Landscaping Section, or berming or other site planning or design techniques to reduce visual and /or environmental impacts from the parking areas utilizing the following screening techniques: a. A solid evergreen screen of trees and shrubs a minimum of six feet high, or b. Decorative fence a maximum of six feet high with landscaping. Chain link fence, where allowed, shall be vinyl coated and landscaped with native trailing vine or an approved non native vine other than ivy, except where a security or safety hazard may exist; or c. Earth berms at a minimum of four feet high, planted with native plants in accordance with the Vegetation Protection and Landscaping Section. 2. Where a parking area is located in the shoreline jurisdiction and adjacent to a public access feature, the parking area shall be screened by a vegetative screen or a built structure that runs the entire length of the parking area adjacent to the amenity. The landscape screening shall comply with the Vegetation Protection and Landscaping Section. 3. Where public access to or along the shoreline exists or is proposed, parking areas shall provide pedestrian access from the parking area to the shoreline. 4. Parking facilities, loading areas and paved areas shall incorporate low impact development techniques wherever feasible, adequate storm water retention areas, oil /water separators and biofiltration swales, or other treatment techniques and W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 26 of 79 M shall comply with the standards and practices formally adopted by the City of Tukwila Public Works Department. J. Land Altering Activities. All land altering activities in the shoreline jurisdiction shall be in conjunction with an underlying land development permit, except for shoreline restoration projects. All activities shall meet the following standards: 1. Clearing, Grading and Landfill. a. Land altering shall be permitted only where it meets the following criteria: (1) The work is the minimum necessary to accomplish an allowed shoreline use; (2) Impacts to the natural environment are minimized and mitigated; (3) Water quality, river flows and /or fish habitat are not adversely affected; (4) Public access and river navigation are not diminished; (5) The project complies with all federal and state requirements; (6) The project complies with the vegetation protection criteria of the Vegetation Protection and Landscaping Section; (7) The project will achieve no net loss of shoreline ecological functions or processes. In cases where impacts to shoreline ecological functions from an otherwise allowed land altering project are unavoidable, those impacts shall be mitigated according to the provisions of this section. In that event, the "no net loss" standard is met; and (8) Documentation is provided to demonstrate that the fill comes from a clean source. b. Clearing, grading and landfill activities, where allowed, shall include erosion control mechanisms, and any reasonable restriction on equipment, methods or timing necessary to minimize the introduction of suspended solids or leaching of contaminants into the river, or the disturbance of wildlife or fish habitats in accordance with the standards in TMC Chapter 16.54, "Grading." 2. Dredging. a. Dredging activities must comply with all federal and state regulations. Maintenance dredging of established navigation channels and basins must be restricted to maintaining previously dredged and /or existing authorized location, depth, and width. b. Where allowed, dredging operations must be designed and scheduled so as to ensure no net loss to shoreline ecological functions or processes. In cases where impacts to shoreline ecological functions from allowed dredging are unavoidable, W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 27 of 79 i those impacts shall be mitigated according to the provisions of this section; in that event, the "no net loss" standard is met. K. Marinas, Boat Yards, Dry Docks, Boat Launches, Piers, Docks and Other Over -water Structures. 1. General Requirements. a. Prior to issuance of a Shoreline Substantial Development Permit for construction of piers, docks, wharves or other over -water structures, the applicant shall present approvals from State or Federal agencies, as applicable. b. Structures must be designed by a qualified engineer and must demonstrate the project will result in no net loss of shoreline ecological function and will be stable against the forces of flowing water, wave action and the wakes of passing vessels. c. In -water structures shall be designed and located to minimize shading of native aquatic vegetation and fish passage areas. Removal of shoreline, riparian and aquatic vegetation shall be limited to the minimum extent necessary to construct the project. All areas disturbed by construction shall be replanted with native vegetation as part of the project. d. New or replacement in -water structures shall be designed and located such that natural hydraulic and geologic processes, such as erosion, wave action or floods will not necessitate the following: (1) reinforcement of the shoreline or stream bank with new bulkheads or similar artificial structures to protect the in -water structure; or (2) dredging. e. No structures are allowed on top of over -water structures except for properties located north of the Turning Basin. f. Pilings or other associated structures in direct contact with water shall not be treated with preservatives unless the applicant can demonstrate that no feasible alternative to protect the materials exists and that non -wood alternatives are not economically feasible. In that case, only compounds approved for marine use may be used and must be applied by the manufacturer per current best management practices of the Western Wood Preservers Institute. The applicant must present verification that the best management practices were followed. The preservatives must also be approved by the Washington Department of Fish and Wildlife. g. All over -water structures shall be constructed and maintained in a safe and sound condition. Abandoned or unsafe over -water structures shall be removed or repaired promptly by the owner. Accumulated debris shall be regularly removed and disposed of properly so as not to jeopardize the integrity of the structure. Replacement of in -water structures shall include proper removal of abandoned or other man -made structures and debris. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 50 CL:bjs Page 28 of 79 h. Boat owners who store motorized boats on -site are encouraged to use best management practices to avoid fuel and other fluid spills. 2. Marinas, Boat Yards and Dry Docks. a. All uses under this category shall be designed to achieve no net loss of shoreline ecological functions. In cases where impacts to shoreline ecological functions from uses allowed under this category are unavoidable, those impacts shall be mitigated according to the provisions of this chapter; in that event, the "no net loss" standard is met. b. Commercial /industrial marinas and dry docks shall be located no further upriver than Turning Basin #3. c. Marinas shall be located, designed, constructed and operated to avoid or minimize adverse impacts on fish, wildlife, water quality, native shoreline vegetation, navigation, public access, existing in -water recreational activities and adjacent water uses. d. Marinas shall submit a fuel spill prevention and contingency plan to the City for approval. Haul -out and boat maintenance facilities must meet the City's stormwater management requirements and not allow the release of chemicals, petroleum or suspended solids to the river. e. Marinas, boat yards and dry docks must be located a minimum of 100 feet from fish and wildlife habitat areas (see "Sensitive Areas in the Shoreline" Map 5). f. New marinas, launch ramps and accessory uses must be located where water depths are adequate to avoid the need for dredging. 3. Boat Launches and Boat Lifts. a. Boat launch ramps and vehicle access to the ramps shall be designed to not cause erosion; the use of pervious paving materials, such as grasscrete, are encouraged. b. Boat launch ramps shall be designed to minimize areas of landfill or the need for shoreline protective structures. c. Access to the boat ramp and parking for the ramp shall be located a sufficient distance from any frontage road to provide safe maneuvering of boats and trailers. d. Launching rails shall be adequately anchored to the ground. e. Launch ramps and boat lifts shall extend waterward past the OHWM only as far as necessary to achieve their purpose. f. Boat lifts and canopies must meet the standards of the U.S. Army Corps of Engineers Regional General Permit Number 1 for Watercraft Lifts in Fresh and Marine /Estuarine Waters within the State of Washington. W: Word ProcessinglOrdinances\SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 29 of 79 51 4. Over -water Structures. Where allowed, over -water structures such as piers, wharves and docks shall meet the following standards: a. The size of new over -water structures shall be limited to the minimum necessary to support the structure's intended use and to provide stability in the case of floating docks. Structures must be compatible with any existing channel control or flood management structures. b. Over -water structures shall not extend waterward of the OHWM any more than necessary to permit launching of watercraft, while also ensuring that watercraft do not rest on tidal substrate at any time. c. Adverse impacts of over -water structures on water quality, river flows, fish habitat, shoreline vegetation, and public access shall be minimized and mitigated. Mitigation measures may include joint use of existing structures, open decking or piers, replacement of non native vegetation, installation of in -water habitat features or restoration of shallow water habitat. d. Any proposals for in -water or over -water structures shall provide a pre construction habitat evaluation, including an evaluation of salmonid and bull trout habitat and shoreline ecological functions, and demonstrate how the project achieves no net loss of shoreline ecological functions. e. Over -water structures shall obtain all necessary state and federal permits prior to construction or repair. f. All over -water structures must be designed by a qualified engineer to ensure they are adequately anchored to the bank in a manner so as not to cause future downstream hazards or significant modifications to the river geomorphology and are able to withstand high flows. g. Over -water structures shall not obstruct normal public use of the river for navigation or recreational purposes. h. Shading impacts to fish shall be minimized by using,grating on at least 30% of the surface area of the over -water structure on residential areas and at least 50% of the over -water structure on all other properties. The use of skirting is not permitted. i. If floats are used, the flotation shall be fully enclosed and contained in a shell (such as polystyrene) that prevents breakup or loss of the flotation material into the water, damage from ultraviolet radiation, and damage from rubbing against pilings or waterborne debris. j. Floats may not rest on the tidal substrate at any time and stoppers on the piling anchoring the floats must be installed to ensure at least 1 foot of clearance above the substrate. Anchor lines may not rest on the substrate at any time. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 52 cL:bjs Page 30 of 79 k. The number of pilings to support over -water structures, including floats, shall be limited to the minimum necessary. Pilings shall conform to the pilings standards contained in the US Army Corps of Engineers Regional General Permit No. 6. I. No over -water structure shall be located closer than five feet from the side property line extended, except that such structures may abut property lines for the common use of adjacent property owners when mutually agreed upon by the property owners in an easement recorded with King County. A copy of this agreement shall be submitted to the Department of Community Development and accompany an application for a development permit and /or Shoreline Permit. 5. Live- Aboards. New over -water residences are prohibited. Live aboards may be allowed provided that: a. They are for single family use only. b. They are located in a marina that provides shower and toilet facilities on land and there are no sewage discharges to the water. c. Live aboards do not exceed 10 percent of the total slips in the marina. d. They are owner occupied vessels. e. There are on -shore support services in proximity to the live aboards. L. Signs in Shoreline Jurisdiction. 1. Signage within the shoreline buffer is limited to the following: a. Interpretative signs. b. Signs for water related uses. c. Signs installed by a government agency for public safety along any public trail or at any public park. d. Signs installed within the rights of way of any public right -of -way or bridge within the shoreline buffer. All signs shall meet the requirements of the Manual on Uniform Traffic Control Devices for Streets and Highways, current edition, published by the U.S. Department of Transportation. e. Signs installed on utilities and wireless communication facilities denoting danger or other safety information, including emergency contact information. 2. Billboards and other off premise signs are strictly forbidden in the shoreline buffer. Section 8. Vegetation Protection and Landscaping Adopted. TMC Section 18.44.080 is hereby amended to read as follows: W: Word Processing\Ordinances\SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 31 of 79 53 18.44.080 Vegetation Protection and Landscaping A. Purpose, Objectives and Applicability. 1. The purpose of this section is to: a. Regulate the protection of existing trees and native vegetation in the shoreline jurisdiction; b. Establish requirements for removal of invasive plants at the time of development or re- development of sites; c. Establish requirements for landscaping for new development or re- development; d. Establish requirements for the long -term maintenance of native vegetation to prevent establishment of invasive species and promote shoreline ecosystem processes. 2. The City's goal is to: a. Preserve as many existing trees as possible and increase the number of native trees, shrubs and other vegetation in the shoreline because of their importance to shoreline ecosystem functions as listed below: (1) Overhead tree canopy to provide shade for water temperature control; (2) Habitat for birds, insects and small mammals; (3) Vegetation that overhangs the river to provide places for fish to shelter; (4) Source of insects for fish; (5) Filtering of pollutants and slowing of stormwater prior to its entering the river; and (6) A long -term source of woody debris for the river. b. In addition, trees and other native vegetation are important for aesthetics. It is the City's goal that unsightly invasive vegetation, such as blackberries, be removed from the shoreline and be replaced with native vegetation to promote greater enjoyment of and access to the river. c. The City will provide information and technical assistance to property owners for improving vegetation in the shoreline jurisdiction and will work collaboratively with local citizen groups to assist property owners in the removal of invasive vegetation and planting of native vegetation, particularly for residential areas. W: Word Processing \Ordinances\SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 54 CL:bjs Page 32 of 79 3. With the exception of residential development/re development of 4 or fewer residential units, all activities and developments within the shoreline environment must comply with the landscaping and maintenance requirements of this section, whether or not a shoreline substantial development permit is required. Single family residential projects are not exempt if implementing a shoreline stabilization project or overwater structure. 4. The tree protection and retention requirements and the vegetation manage- ment requirements apply to existing uses as well as new or re- development B. Tree Protection, Retention and Replacement. 1. As many significant trees and as much native vegetation as possible are to be retained on a site proposed for development or re- development, taking into account the condition and age of the trees. As part of design review, the Director of Community Development or the Board of Architectural Review may require alterations in the arrangement of buildings, parking or other elements of proposed development in order to retain significant non invasive trees, particularly those that provide shading to the river. Trees located on properties not undergoing development or re- development may not be removed except those that interfere with access and passage on public trails or that present an imminent hazard to existing structures or the public. If the hazard is not readily apparent, the City may require an evaluation by an International Society of Arborists (ISA)- certified arborist. 2. To protect the ecological functions that trees and native vegetation provide to the shoreline, removal of any significant tree or native vegetation in the Shoreline Jurisdiction requires a Shoreline Tree Removal and Vegetation Clearing Permit and is generally only allowed on sites undergoing development or re- development. Only trees that interfere with access and passage on public trails or trees that present an imminent hazard to existing structures or the public may be removed from sites without an issued building permit or Federal approval. Factors that will be considered in approving tree removal include, but are not limited to: tree condition and health, age, risks to structures, and potential for root or canopy interference with utilities. 3. Prior to any tree removal or site clearing, a Type 2 Shoreline Tree Removal and Vegetation Clearing Permit application must be submitted to the Department of Community Development (DCD) containing the following information: a. A vegetation survey on a site plan that shows the diameter, species and location of all significant trees and all existing native vegetation. b. A site plan that shows trees and native vegetation to be retained and trees to be removed and provides a table showing the number of significant trees to be removed and the number of replacement trees required. c. Tree protection zones and other measures to protect any trees or native vegetation that are to be retained for sites undergoing development or re- development. W: Word Processing \Ordinances\SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cl-:bjs Page 33 of 79 55 d. Location of the OHWM, river buffer, Shoreline Jurisdiction boundary and any sensitive areas with their buffers. e. A landscape plan that shows diameter, species name, spacing and planting location for any required replacement trees and other proposed vegetation. f. An arborist evaluation justifying the removal of hazardous trees if required by DCD. g. An application fee per the current Land Use Permit Fee resolution. 4. Where permitted, significant trees that are removed from the shoreline shall be replaced pursuant to the tree replacement requirements shown below, up to a density of 100 trees per acre (including existing trees). The Director or Planning Commission may require additional trees or shrubs to be installed to mitigate any potential impact from the loss of this vegetation as a result of new development. Tree Replacement Requirements Diameter* of Tree Removed *measured at height of 4.5 feet from the ground) 4 6 inches.(single trunk); 2 inches (any trunk of a multi -trunk tree) Over 6 8 inches Over 8 20 inches Over 20 inches I Number of Replacement Trees Required 3 4 6 8 5. The property owner is required to ensure the viability and long -term health of trees planted for replacement through proper care and maintenance for the life of the project. Replaced trees that do not survive must be replanted in the next appropriate season for planting. 6. If all required replacement trees cannot be reasonably accommodated on 56 the site, off -site tree replacement within the shoreline jurisdiction may be allowed at a site approved by the City. Priority for off -site tree planting will be at locations within the Transition Zone. If no suitable off -site location is available, the applicant shall pay into a tree replacement fund. The fee shall be based on the value of the replacement trees and their delivery, labor for site preparation and plant installation, soil amendments, mulch, and staking supplies. 7. When a tree suitable for use as LWD is permitted to be removed from the shoreline buffer, the tree trunk and root ball (where possible) will be saved for use in a restoration project elsewhere in the shoreline jurisdiction. The applicant will be responsible for the cost of moving the removed tree(s) to a location designated by the City. If no restoration project or storage location is available at the time, the Director may waive this requirement. Trees removed in the shoreline jurisdiction outside the buffer shall be placed as LWD in the buffer (not on the bank), if feasible. Priority for LWD placement projects will be in the Transition Zone. W: Word Processing \Ordinances\S MP-Arne nding shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 34 of 79 8. Dead or dying trees located within the buffer or undeveloped upland portion of the Shoreline Jurisdiction shall be left in place as wildlife snags, unless they present a hazard to structures, facilities or the public. 9. Topping of trees is prohibited unless absolutely necessary to protect overhead utility lines. Topping of trees will be regulated as removal and tree replacement will be required. 10. For new development or re- development where trees are proposed for retention, tree protection zones shall be indicated on site plans and shall be established in the field prior to commencement of any construction or site clearing activity. A minimum 4 feet high construction barrier shall be installed around significant trees and stands of native trees or vegetation to be retained. Minimum distances from the trunk for the construction barriers shall be based on the approximate age of the tree (height and canopy) as follows: a. Young trees (have reached less than 20% of life expectancy): 0.75 feet per inch of trunk diameter. b. Mature trees (have reached 20 -80% of life expectancy): 1 foot per inch of trunk diameter. c. Over mature trees (have reached greater than 80% of life expectancy): 1.5 feet per inch of trunk diameter. C. Landscaping. This section presents landscaping standards for the Shoreline Jurisdiction and is divided into a general section and separate sections for the River Buffer and for the remaining part of the Shoreline Jurisdiction for each environment designation. 1. General Requirements. For any new development or redevelopment in the Shoreline Jurisdiction, except single family residential development of 4 or fewer lots, invasive vegetation must be removed and native vegetation planted and maintained in the River Buffer, including the river bank. a. The landscaping requirements of this subsection apply for any new development or redevelopment in the Shoreline Jurisdiction, except: single family residential development of 4 or fewer lots. The extent of landscaping required will depend on the size of the proposed project. New development or full redevelopment of a site will require landscaping of the entire site. For smaller projects, the Director will review the intent of this section and the scope of the project to determine a reasonable amount of landscaping to be carried out. Trees and other vegetation shading the river shall be retained or replanted when riprap is placed per the approved tree permit, if required. b. Invasive vegetation must be removed as part of site preparation and native vegetation planted, including the river bank. c. On properties located behind publicly maintained levees, an applicant is not required to remove invasive vegetation or plant native vegetation within the buffer. W: Word Processing \Ordinances\SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 35 of 79 57 d. Removal of invasive species shall be done by hand or with hand -held power tools. Where not feasible and mechanized equipment is needed, the applicant must obtain a Shoreline Tree Removal and Vegetation Clearing Permit and show how the slope stability of the bank will be maintained and a plan must be submitted indicating how the work will be done and what erosion control and tree protection features will be utilized. Federal and State permits may be required for vegetation removal with mechanized equipment. e. Trees and other vegetation shading the river shall be retained or replanted when riprap is placed, as specified in the approved tree permit if a permit is required. f. Removal of invasive vegetation may be phased over several years prior to planting, if such phasing is provided for by a plan approved by the Director to allow for alternative approaches, such as sheet mulching and goat grazing. The method selected shall not destabilize the bank or cause erosion. g. A combination of native trees, shrubs and groundcovers (including grasses, sedges, rushes and vines) shall be planted. The plants listed in the Riparian Restoration and Management Table of the 2004 Washington Stream Habitat Restoration Guidelines (Washington Department of Fish and Wildlife, Washington Department of Ecology, and U.S. Fish and Wildlife Service, Olympia, Washington, as amended) shall provide the basis for plant selection. Site conditions, such as topography, exposure, and hydrology shall be taken into account for plant selection. Other species may be approved if there is adequate justification. h. Non native trees may be used as street trees in cases where conditions are not appropriate for native trees (for example where there are space or height limitations or conflicts with utilities). i. Plants shall meet the current American Standard for Nursery Stock (American Nursery and Landscape Association ANLA). j. Plant sizes in the non -buffer areas of all Shoreline Environments shall meet the following minimum size standards: Deciduous trees 2 -inch caliper Conifers 6 8 foot height Shrubs 24 -inch height Groundcover /grasses..... 4 -inch or 1 gallon container k. Smaller plant sizes (generally one gallon, bareroot, plugs, or stakes, depending on plant species) are preferred for buffer plantings. Willow stakes must be at least 1/2 -inch in diameter. I. Site preparation and planting of vegetation shall be in accordance with best management practices for ensuring the vegetation's long -term health and survival. m. Plants may be selected and placed to allow for public and private view corridors and /or access to the water's edge. W: Word Process ing \Ordinances\SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 58 CL:bis Page 36 of 79 n. Native vegetation in the shoreline installed in accordance with the preceding standards shall be maintained by the property owner to promote healthy growth and prevent establishment of invasive species. Invasive plants (such as blackberry, ivy, knotweed, bindweed) shall be removed on a regular basis, according to the approved maintenance plan. o. Areas disturbed by removal of invasive plants shall be replanted with native vegetation where necessary to maintain the density shown in TMC Section 18.44.080.B.4. and must be replanted in a timely manner, except where a long term removal and re- vegetation plan, as approved by the City, is being implemented. p. The following standards apply to utilities and loading docks located in the shoreline jurisdiction. (1) Utilities such as pumps, pipes, etc. shall be suitably screened with native vegetation; (2) Utility easements shall be landscaped with native groundcover, grasses or other low- growing plants as appropriate to the shoreline environment and site conditions; (3) Allowed loading docks and service areas located waterward of the development shall have landscaping that provides extensive visual separation from the river. 2. River Buffer Landscaping Requirements in all Shoreline Environments. The River Buffer in all shoreline environments shall function, in part, as a vegetation management area to filter sediment, capture contaminants in surface water run -off, reduce the velocity of water run -off, and provide fish and wildlife habitat. a. A planting plan prepared by a licensed landscape architect or an approved biologist shall be submitted to the City for approval that shows plant species, size, number and spacing. The requirement for a landscape architect or biologist may be waived by the Director for single family property owners (when planting is being required as mitigation for construction of overwater structures or shoreline stabilization), if the property owner accepts technical assistance from City staff. b. Plants shall be installed from the OHWM to the upland edge of the River Buffer unless site conditions would make planting unsafe. c. Plantings close to and on the bank shall include native willows, red osier dogwood and other native vegetation that will extend out over the water, to provide shade and habitat functions when mature. Species selected must be able to withstand seasonal water level fluctuations. d. Minimum plant spacing in the buffer shall follow the River Buffer Vegetation Planting Densities Table shown in TMC Section 18.44.080.C.2. Existing non invasive plants may be included in the density calculations. W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 37 of 79 59 e. Irrigation for buffer plantings is required for at least two dry seasons or until plants are established. An irrigation plan is to be included as part of the planting plan. f. In the event that a development project allows for setback and benching of the shoreline along an existing levee or revetment, the newly created mid slope bench area shall be planted and maintained with a variety of native vegetation appropriate for site conditions. River Buffer Vegetation Planting Densities Table Plant Material Type Stakes /cuttings along river bank (willows, red osier dogwood) Shrubs Trees Groundcovers, grasses, sedges, rushes, other herbaceous plants Native seed mixes Planting Density 1 2 feet on center or per bioengineering method 3 5 feet on center, depending on species 15 20 feet on center, depending on species 1 1.5 feet on center, depending on species 5 25 Ibs per acre, depending on species 3. Landscaping Requirements for the Urban Conservancy and High Intensity Environments Outside of the River Buffer. For the portions of property within the Shoreline Jurisdiction landward of the River Buffer the landscape requirements in the General section of this chapter and the requirements for the underlying zoning as established in TMC Chapter 18.52 shall apply except as indicated below. a. Parking Lot Landscape Perimeters: One native tree for each 20 lineal feet of required perimeter landscaping, one shrub for each 4 lineal feet of required perimeter landscaping, and native groundcovers to cover 90% of the landscape area within 3 years, planted at a minimum spacing of 12 inches on- center. b. Interior Parking Lot Landscaping;, Every 300 square feet of paved surface requires 10 square feet of interior landscaping within landscape islands separated by no more than 150 feet between islands. c. Landscaping shall be provided at yards not adjacent to the river, with the same width as required in the underlying zoning district. This standard may be reduced as follows: (1) Where development provides a public access corridor between off site public area(s) and public shoreline areas, side yard landscaping may be reduced by 25 percent to no less than 3 feet; or (2) Where development provides additional public access area(s) (as allowed by the High Intensity and Urban Conservancy Environment Development Standards) equal in area to at least 2.5% of total building area, front yard landscaping may be reduced by 25 percent. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 38 of 79 W D. Vegetation Management in the Shoreline Jurisdiction. The requirements of this section apply to all existing and new development within the shoreline jurisdiction. 1. Trees and shrubs may only be pruned for safety, to maintain views or access corridors and trails by pruning up or on the sides of trees, to maintain clearance for utility lines, and /or for improving shoreline ecological function. This type of pruning is exempt from any permit requirements. Topping of trees is prohibited except where absolutely necessary to avoid interference with existing utilities. 2. Plant debris from removal of invasive plants or pruning shall be removed from the site and disposed of properly. 3. Use of pesticides a. Pesticides (including herbicides, insecticides, and fungicides) shall not be used in the shoreline jurisdiction except where: (1) Alternatives such as manual removal, biological control, and cultural control are not feasible given the size of the infestation, site characteristics, or the characteristics of the invasive plant species; (2) The use of pesticides has been approved through a comprehensive vegetation or pest management and monitoring plan; (3) The pesticide is applied in accordance with state regulations; (4) The proposed herbicide is approved for aquatic use by the U.S. Environmental Protection Agency; and (5) The use of pesticides in the shoreline jurisdiction is approved in writing by the City and the applicant presents a copy of the Aquatic Pesticide Permit issued by the Department of Ecology or Washington Department of Agriculture. b. Self- contained rodent bait boxes designed to prevent access by other animals are allowed. c. Sports fields, parks, golf courses and other outdoor recreational uses that involve maintenance of extensive areas of turf shall provide and implement an integrated turf management program or integrated pest management plan designed to ensure that water quality in the river is not adversely impacted. Section 9. Environmentally Sensitive Areas within the Shoreline Jurisdiction Amended. TMC Section 18.44.090 is hereby amended to read as follows: 18.44.090 Environmentally Sensitive Areas within the Shoreline Jurisdiction. A. Purpose. 1. The Growth Management Act (RCW 36.70A) requires protection of critical areas (sensitive areas), defined as wetlands, watercourses, frequently flooded areas, geologically hazardous areas, critical aquifer recharge areas, fish and wildlife conservation areas, and abandoned mine areas. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 39 of 79 61 2. The purpose of protecting environmentally sensitive areas within the shoreline jurisdiction is to: a. Minimize development impacts on the natural functions and values of these areas. b. Protect quantity and quality of water resources. c. Minimize turbidity and pollution of wetlands and fish bearing waters and maintain wildlife habitat. d. Prevent erosion and the loss of slope and soil stability caused by the removal of trees, shrubs, and root systems of vegetative cover. e. Protect the public against avoidable losses, public emergency rescue and relief operations cost, and subsidy cost of public mitigation from landslide, subsidence, erosion and flooding. f. Protect the community's aesthetic resources and distinctive features of natural lands and wooded hillsides. g. Balance the private rights of individual property owners with the preservation of environmentally sensitive areas. h. Prevent the loss of wetland and watercourse function and acreage, and strive for a gain over present conditions. i. Give special consideration to conservation or protection measures necessary to protect or enhance anadromous fisheries. j. Incorporate the use of best available science in the regulation and protection of sensitive areas as required by the state Growth Management Act, according to WAC 365- 195 -900 through 365- 195 -925 and WAC 365- 190 -080. 3. The goal of these sensitive area regulations is to achieve no net loss of wetland, watercourse, or fish and wildlife conservation areas or their functions. B. Applicability, Maps and Inventories. 1. Sensitive areas located in the shoreline jurisdiction are regulated by the Shoreline Management Program and this chapter. However, the level of protection for the sensitive areas located in the shoreline jurisdiction shall be at least equal to that provided in the Sensitive Areas section of the Zoning Code (TMC Chapter 18.45). 2. Sensitive areas currently identified in the shoreline jurisdiction are discussed in the Shoreline Inventory and Characterization Report, which forms part of the City's Shoreline Master Program. The locations are mapped on the "Sensitive Areas in the Shoreline Jurisdiction," Map 5. This map is based on assessment of current conditions and review of the best available information. However, additional sensitive areas may exist within the shoreline jurisdiction and the boundaries of the sensitive areas shown are not exact. It is the responsibility of the property owner to W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 40 of 79 62 determine the presence of sensitive areas on the property and to verify the boundaries in the field. Sensitive area provisions for abandoned mine areas do not apply as none of these areas is located in the shoreline jurisdiction. 3. Sensitive areas comprised of frequently flooded areas and areas of seismic instability are regulated by the Flood Zone Management Code (TMC Chapter 16.52) and the Washington State Building Code, rather than by Section 18.44.090 of this chapter. C. Best Available Science. Policies, regulations and decisions concerning sensitive areas shall rely on Best Available Science to protect the sensitive areas' functions and values. Special consideration must be given to the conservation or protection measures necessary to preserve or enhance anadromous fish and their habitats. Nonscientific information may supplement scientific information, but is not an adequate substitution for valid and available scientific information. D. Sensitive Area Studies. An applicant for a development proposal that may include a sensitive area and /or its buffer shall submit those studies as required by the City and specified below to adequately identify and evaluate the sensitive area and its buffers. 1. General Requirements. a. A required sensitive areas study shall be prepared by a person with experience and training in the scientific discipline appropriate for the relevant sensitive area. A qualified professional must have obtained a B.S. or B.A. or equivalent degree in ecology or related science, engineering, environmental studies, fisheries, geotechnical or related field, and at least two years of related work experience. b. The sensitive areas study shall use scientifically valid methods and studies in the analysis of sensitive area data and shall use field reconnaissance and reference the source of science used. The sensitive area study shall evaluate the proposal and all probable impacts to sensitive areas. c. It is intended that sensitive areas studies and information be utilized by applicants in preparation of their proposals and therefore shall be undertaken early in the design stages of a project. 2. Wetland, Watercourse and Sensitive Area Studies. At a minimum, following information, as applicable: Fish and Wildlife Conservation Area the sensitive area study shall contain the a. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested; b. A copy of the site plan for the development proposal showing: sensitive areas and buffers and the development proposal with dimensions; clearing limits; proposed storm water management plan; and mitigation plan for impacts due to drainage alterations; W: Word Process ing \Ordinances\SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 41 of 79 63 c. The dates, names and qualifications of the persons preparing the study and documentation of any fieldwork performed on the site; d. Identification and characterization of all sensitive areas, water bodies, and buffers adjacent to the proposed project area or potentially impacted by the proposed project; e. A statement specifying the accuracy of the study and assumptions used in the study; f. Determination of the degree of impact and risk from the proposal both on the site and on adjacent properties; g. An assessment of the probable cumulative impacts to sensitive areas, their buffers and other properties resulting from the proposal; h. A description of reasonable efforts made to apply mitigation sequencing to avoid, minimize and mitigate impacts to sensitive areas; Plans for adequate mitigation to offset any impacts; j. Recommendations for maintenance, short -term and long -term monitoring, contingency plans and bonding measures; and k. Any technical information required by the director to assist in determining compliance. 3. Geotechnical Studies. a. A geotechnical study appropriate both to the site conditions and the proposed development shall be required for development in Class 2, Class 3, and Class 4 Areas. b. All studies shall include at a minimum a site evaluation, review of available information regarding the site and a surface reconnaissance of the site and adjacent areas. For Class 2 areas, subsurface exploration of site conditions is at the discretion of the geotechnical consultant. In addition, for Class 3 and Class 4 Areas, the study shall include a feasibility analysis for the use of infiltration on -site and a subsurface exploration of soils and hydrology conditions. Detailed slope stability analysis shall be done if the geotechnical engineer recommends it in Class 3 areas, and must be done in Class 4 areas. c. Applicants shall retain a geotechnical engineer to prepare the reports and evaluations required in this subsection. The geotechnical report and completed site evaluation checklist shall be prepared in accordance with generally accepted geotechnical practices, under the supervision of and signed and stamped by the geotechnical engineer. The report shall be prepared in consultation with the appropriate City department. Where appropriate, a geologist must be included as part of the geotechnical consulting team. The report shall make specific recommendations concerning development of the site. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 42 of 79 .i d. The opinions and recommendations contained in the report shall be supported by field observations and, where appropriate or applicable, by literature review conducted by the geotechnical engineer which shall include appropriate explorations, such as borings or test pits, and an analysis of soil characteristics conducted by or under the supervision of the engineer in accordance with standards of the American Society of Testing and Materials or other applicable standards. If the evaluation involves geologic evaluations or interpretations, the report shall be reviewed and approved by a geotechnical engineer. 4. Modifications or Waivers to Sensitive Area Study Requirements. a. The Director may limit the required geographic area of the sensitive area study as appropriate if: (1) The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or (2) The proposed activity will affect only a limited part of the site. b. The Director may allow modifications to the required contents of the study where, in the judgment of a qualified professional, more or less information is required to adequately address the potential sensitive area impacts and required mitigation. c. If there is written agreement between the Director and the applicant concerning the sensitive area classification and type, the Director may waive the requirement for sensitive area studies provided that no adverse impacts to sensitive areas or buffers will result. There must be substantial evidence that the sensitive areas delineation and classification are correct, that there will be no detrimental impact to the sensitive areas or buffers, and that the goals, purposes, objectives and requirements of the Shoreline Management Program will be followed. E. Procedures. When an applicant submits an application for any building permit, subdivision, short subdivision or any other land use review that approves a use, development or future construction, the location and dimensions of all sensitive areas and buffers on the site shall be indicated on the plans submitted. When a sensitive area is identified, the following procedures apply. 1. The applicant shall submit the relevant sensitive area study as required by this chapter. 2. The Department of Community Development will review the information submitted in the sensitive area studies to verify the information, confirm the nature and type of the sensitive area, and ensure the study is consistent with the Shoreline Master Program. At the discretion of the Director, sensitive area studies may undergo peer review, at the expense of the applicant. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeat Ord 2271 final 8 -15 -11 CL:bjs Page 43 of 79 65 3. Denial of use or development. A use or development will be denied if the Director determines that the applicant cannot ensure that potential dangers and costs to future inhabitants of the development, adjacent properties, and Tukwila are minimized and mitigated to an acceptable level. 4. Preconstruction meeting. The applicant, specialist(s) of record, contractor, and department representatives will be required to attend pre- construction meetings prior to any work on the site. 5. Construction monitoring. The specialist(s) of record shall be retained to monitor the site during construction. 6. On -site Identification. The Director may require the boundary between a sensitive area and its buffer or between the buffer and any development or use to be permanently identified with fencing, or with a wood or metal sign with treated wood, concrete or metal posts. Size will be determined at the time of permitting, and wording shall be as follows: "Protection of this natural area is in your care. Do not alter or disturb. Please call the City of Tukwila (206- 431 -3670) for more information. F. Wetland Determinations and Classifications. 1. Wetlands and their boundaries are established by using the Washington State Wetland and Delineation Manual, as required by RCW 36.70A.175 (Ecology Publication #96 -94) and consistent with the 1987 Corps of Engineers Wetland Delineation Manual. 2. Wetland determinations shall be made by a qualified professional (certified Wetland Scientist or non certified with at least two years of full -time work experience as a wetland professional). 3. Wetland areas within the City of Tukwila have certain characteristics, functions and values and have been influenced by urbanization and related disturbances. Wetland functions include, but are not limited to the following: improving water quality; maintaining hydrologic functions (reducing peak flows, decreasing erosion, groundwater); and providing habitat for plants, mammals, fish, birds, and amphibians. Wetland functions shall be evaluated using the Washington State Functional Assessment Method. 4. Wetlands shall be designated in accordance with the Washington State Wetlands Rating System for Western Washington (Washington State Department of Ecology, August 2004, Publication #04 -06 -025) as Category I, II, III or IV as listed below: a. Category I wetlands are those that: (1) represent a unique or rare wetland type; or (2) are more sensitive to disturbance than most wetlands; or (3) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or W: Word ProcessinglOrdinances\SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 66 CL:bjs Page 44 of 79 (4) provide a high level of functions. The following types of wetlands listed by the Washington State Department of Ecology and potentially found in Tukwila's Shoreline Jurisdiction are Category I: (a) Estuarine wetlands (deepwater tidal habitats with a range of fresh brackish marine water chemistry and daily tidal cycles, salt and brackish marshes, intertidal mudflats, mangrove swamps, bays, sounds, and coastal rivers). (b) Wetlands that perform many functions well and score at least 70 points in the Western Washington Wetlands Rating System. (c) Waterfowl or shorebird areas designated by the State Department of Fish and Wildlife. b. Category 11 wetlands are difficult, though not impossible to replace and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but still need a relatively high level of protection. Category II wetlands potentially in Tukwila's Shoreline Jurisdiction include: (1) Estuarine wetlands Any estuarine wetland smaller than an acre, or those that are disturbed and larger than 1 acre are Category II wetlands. (2) Wetlands that perform functions well Wetlands scoring between 51 69 points (out of 100) on the questions related to the functions present are Category II wetlands. c. Category III wetlands have a moderate level of functions (scores between 30 50 points). Wetlands scoring between 30 50 points generally have been disturbed in some ways and are often less diverse or more isolated from other natural resources in the landscape than Category Il wetlands. d. Category IV wetlands have the lowest levels of functions (scores less than 30 points) and are often heavily disturbed. While these are wetlands that should be able to be replaced or improved, they still need protection because they may provide some important functions. Any disturbance of these wetlands must be considered on a case -by -case basis. G. Watercourse Designation and Ratings. 1. Watercourse ratings are based on the existing habitat functions and are rated as follows: a. Type 1 (S) Watercourse: Watercourses inventoried as Shorelines of the State under RCW 90.58 (Green /Duwamish River). b. Type 2 (F) Watercourse: Those watercourses that have either perennial (year- round) or intermittent flows and support salmonid fish use. c. Type 3 (NP) Watercourse: Those watercourses that have perennial flows and are not used by salmonid fish. W: Word Processing \Ordinances\SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 45 of 79 67 d. Type 4 (NS) Watercourse: Those watercourses that have intermittent flows and are not used by salmonid fish. 2. Watercourse sensitive area studies shall be performed by a qualified professional (hydrologist, geologist, engineer or other scientist with experience in preparing watercourse assessments). H. Fish and Wildlife Habitat Conservation Areas. 1. Fish and wildlife habitat conservation areas within the shoreline jurisdiction include the habitats listed below: a. Areas with which endangered, threatened, and sensitive species have a primary association; b. Habitats and species of local importance, including but not limited to bald eagle habitat, heron rookeries, osprey nesting areas; c. Waters of the State (i.e., the Green /Duwamish River itself); d. State natural area preserves and natural resource conservation areas; and e. Areas critical for habitat connectivity. 2. The approximate location and extent of known fish and wildlife habitat conservation areas are identified in the Shoreline Inventory and Characterization Report and are shown on the Sensitive Areas in the Shoreline Jurisdiction map. Only the salmon habitat enhancement project sites completed or underway are shown as Fish and Wildlife Conservation Areas on the Sensitive Areas in the Shoreline Jurisdiction Map. Streams are shown as watercourses. The river is not shown as a Fish and Wildlife Habitat Conservation Area for the sake of simplicity. Fish and wildlife habitat conservation areas correlate closely with the areas identified as regulated watercourses and wetlands and their buffers, as well as off channel habitat areas created to improve salmon habitat (shown on the Sensitive Areas Map) in the Shoreline jurisdiction. The Green /Duwamish River is recognized as the most significant fish and wildlife habitat corridor. In addition Gilliam Creek, Riverton Creek, Southgate Creek, Hamm Creek (in the North Potential Annexation Area (PAA), and Johnson Creek (South PAA) all provide salmonid habitat. 1. Wetland Watercourse and Fish and Wildlife Habitat Conservation Area Buffers. 1. Purpose and Intent of Buffer Establishment. a. A buffer area shall be established adjacent to designated sensitive areas. The purpose of the buffer area shall be to protect the integrity, functions and values of the sensitive areas. Any land alteration must be located out of the buffer areas as required by this section. b. Buffers are intended in general to: •i W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 46 of 79 (1) Minimize long -term impacts of development on properties containing sensitive areas. (2) Protect sensitive areas from adverse impacts during development. (3) Preserve the edges of wetlands and the banks of watercourses and fish and wildlife habitat conservation areas for their critical habitat value. (4) Provide an area to stabilize banks, to absorb overflow during high water events and to allow for slight variation of aquatic system boundaries over time due to hydrologic or climatic effects. (5) Provide shading to watercourses and fish and wildlife habitat conservation areas to maintain stable water temperatures and provide vegetative cover for additional wildlife habitat. watercourses. (6) Provide input of organic debris and nutrient transport in (7) Reduce erosion and increased surface water run -off. (8) Reduce loss of or damage to property. (9) Intercept fine sediments from surface water run -off and serve to minimize water quality impacts. (10) Protect the sensitive area from human and domestic animal disturbances. 2. Establishment of Buffer Widths. The following standard buffers shall be established: a. Wetland buffers (measured from the wetland edge): (1) Category I and II Wetland: 100 -foot buffer. (2) Category III Wetland: 80 -foot buffer. (3) Category IV Wetland: 50 -foot buffer. b. Watercourse buffers (measured from the OHWM): (1) Type 1 (S) Watercourse The buffer width for the Green /Duwamish River is established in the Shoreline Environment Designations of this SMP for the three designated shoreline environments. (2) Type 2 (F) Watercourse: 100 foot -wide buffer. (3) Type 3 (NP) Watercourse: 80- foot -wide buffer. (4) Type 4 (NS) Watercourse: 50 -foot -wide buffer. W: Word Processing\Ordinances \SMP- Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 47 of 79 rtlue c. Fish and Wildlife Habitat Conservation Areas: The buffer will be the same as the river buffer established for each Shoreline Environment measured from the OHWM, unless an alternate buffer is established and approved at the time a fish and wildlife habitat restoration project is undertaken. 3. Sensitive Area Buffer Setbacks. All commercial and industrial buildings shall be set back 15 feet and all other development shall be set back 10 feet from the sensitive area buffer's edge. The building setbacks shall be measured from the foundation to the buffer's edge. Building plans shall also identify a 20 -foot area beyond the buffer setback within which the impacts of development will be reviewed. The Director may waive setback requirements when a site plan demonstrates there will be no adverse impacts to the buffer from construction or occasional maintenance activities. -4. Reduction of Standard Buffer Width. Except for the Green /Duwamish River (Type 1 watercourse for which any variation in the buffer shall be regulated under the shoreline provisions of this program), the buffer width may be reduced on a case -by- case basis, provided the reduced buffer area does not contain slopes 15% or greater. In no case shall the approved buffer width result in greater than a 50% reduction in width. Buffer reduction with enhancement may be allowed as part of a Substantial Development Permit if: a. Additional protection to wetlands or watercourses will be provided through the implementation of a buffer enhancement plan; and b. The existing condition of the buffer is degraded; and c. Buffer enhancement includes, but is not limited to, the following: (1) Planting vegetation that would increase value for fish and wildlife habitat or improve water quality; (2) Enhancement of wildlife habitat by incorporating structures that are likely to be used by wildlife, including wood duck boxes, bat boxes, snags, root wads /stumps, birdhouses and heron nesting areas; or (3) Removing non native plant species and noxious weeds from the buffer area and replanting the area. 5. Increase in Standard Buffer Width. Buffers for sensitive areas will be increased when they are determined to be particularly sensitive to disturbance or the proposed development will create unusually adverse impacts. Any increase in the width of the buffer shall be required only after completion of a sensitive areas study by a qualified biologist that documents the basis for such increased width. An increase in buffer width may be appropriate when: a. The development proposal has the demonstrated potential for significant adverse impacts upon the sensitive area that can be mitigated by an increased buffer width; or W: Word Processing\OrdinancestSMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 70 cL:bjs Page 48 of 79 b. The area serves as habitat for endangered, threatened, sensitive or monitor species listed by the federal government or the State. 6: Maintenance of Vegetation in Buffers. Every reasonable effort shall be made to maintain any existing viable native plant life in the buffers. Vegetation may be removed from the buffer as part of an enhancement plan approved by the Director. Enhancements will ensure that slope stability and wetland or watercourse quality will be maintained or improved. Any disturbance of the buffers shall be replanted with a diverse plant community of native northwest species that are appropriate for the specific site as determined by the Director. If the vegetation must be removed, or the vegetation becomes damaged or dies because of the alterations of the landscape, then the applicant for a permit must replace existing vegetation with comparable specimens, approved by the Director, which will restore buffer functions within five years. J. Areas of Potential Geologic Instability. 1. Classification. Areas of potential geologic instability are classified as follows: a. Class 1 area, where landslide potential is low, and which slope is less than 15 b. Class 2 areas, where landslide potential is moderate, which slope is between 15% and 40 and which are underlain by relatively permeable soils; c. Class 3 areas, where landslide potential is high, which include areas sloping between 15% and 40 and which are underlain by relatively impermeable soils or by bedrock, and which also include all areas sloping more steeply than 40 d. Class 4 areas, where landslide potential is very high, which include sloping areas with mappable zones of groundwater seepage, and which also include existing mappable landslide deposits regardless of slope. 2. Exemptions. The following areas are exempt from regulation as geologically hazardous areas: a. Temporary stockpiles of topsoil, gravel, beauty bark or other similar landscaping or construction materials; b. Slopes related to materials used as an engineered pre -load for a building pad; c. Any temporary slope that has been created through legal grading activities under an approved permit may be re- graded. d. Roadway embankments within right -of -way or road easements; and e. Slopes retained by approved engineered structures, except riverbank structures and armoring. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 49 of 79 71 3. Geotechnical Study Required. a. Development or alterations to areas of potential geologic instability that form the river banks shall be governed by the policies and requirements of the Shoreline Stabilization section of this chapter-. Development proposals on all other lands containing or threatened by an area of potential geologic instability Class 2 or higher shall be subject to a geotechnical study. The geotechnical report shall analyze and make recommendations on the need for and width of any setbacks or buffers necessary to insure slope stability. Development proposals shall then include the buffer distances as defined within the geotechnical report. The geotechnical study shall be performed by a qualified professional geotechnical engineer, licensed in the State of Washington. b. Prior to permitting alteration of an area of potential geologic instability, the applicant must demonstrate one of the following: (1) There is no evidence of past instability or earth movement in the vicinity of the proposed development, and where appropriate, quantitative analysis of slope stability indicates no significant risk to the proposed development or surrounding properties; or (2) The area of potential geologic instability can be modified or the project can be designed so that any potential impact to the project and surrounding properties is eliminated, slope stability is not decreased, and the increase in surface water discharge or sedimentation shall not decrease slope stability. 4. Buffers for Areas of Potential Geologic Instability. a. Buffers are intended to: (1) Minimize long -term impacts of development on properties containing sensitive areas; (2) Protect sensitive areas from adverse impacts during development; (3) Prevent loading of potentially unstable slope formations; (4) Protect slope stability, (5) Provide erosion control and attenuation of precipitation, surface water and storm water runoff, (6) Reduce loss of or damage to property; and (7) Prevent the need for future shoreline armoring. b. Buffers may be increased by the Director when an area is determined to be particularly sensitive to the disturbance created by a development. Such a decision will be based on a City review of the report as prepared by a qualified geotechnical engineer and by a site visit. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 50 of 79 72 5. Additional Requirements. a. Where any portion of an area of potential geologic instability is cleared for development, a landscaping plan for the site shall include tree replanting in accordance with the Vegetation Protection and Landscaping section of this chapter. Vegetation shall be sufficient to provide erosion and stabilization protection. b. It shall be the responsibility of the applicant to submit, consistent with the findings of the geotechnical report, structural plans which were prepared and stamped by a structural engineer. The plans and specifications shall be accompanied by a letter from the geotechnical engineer who prepared the geotechnical report stating that in his /her judgment, the plans and specifications conform to the recommendations in the geotechnical report; the risk of damage to the proposed development site from soil instability will be minimal subject to the conditions set forth in the report; and the proposed development will not increase the potential for soil movement. c. Further recommendations signed and sealed by the geotechnical engineer shall be provided should there be additions or exceptions to the original recommendations based on the plans, site conditions or other supporting data. If the geotechnical engineer who reviews the plans and specifications is not the same engineer who prepared the geotechnical report, the new engineer shall, in a letter to the City accompanying the plans and specifications, express his or her agreement or disagreement with the recommendations in the geotechnical report and state that the plans and specifications conform to his or her recommendations. d. The architect or structural engineer shall submit to the City, with the plans and specifications, a letter or notation on the design drawings at the time of permit application stating that he or she has reviewed the geotechnical report, understands its recommendations, has explained or has had explained to the owner the risks of loss due to slides on the site, and has incorporated into the design the recommendations of the report and established measures to reduce the potential risk of injury or damage that might be caused by any earth movement predicted in the report. e. The owner shalir execute a Sensitive Areas Covenant and Hold Harmless Agreement running with the land, on a form provided by the City. The City will file the completed covenant with the King County Department of Records and Elections at the expense of the applicant or owner. A copy of the recorded covenant will be forwarded to the owner. f. Whenever the City determines that the public interest would not be served by the issuance of a permit in an area of potential geologic instability without assurance of a means of providing for restoration of areas disturbed by, and repair of property damage caused by, slides arising out of or occurring during construction, the Director may require assurance devices. g. Where recommended by the geotechnical report, the applicant shall retain a geotechnical engineer (preferably retain the geotechnical engineer who prepared the final geotechnical recommendations and reviewed the plans and specifications) to monitor the site during construction. If a different geotechnical W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 51 of 79 73 engineer is retained, the new geotechnical engineer shall submit a letter to the City stating whether or not he /she agrees with the opinions and recommendations of the original study. Further recommendations, signed and sealed by the geotechnical engineer, and supporting data shall be provided should there be exceptions to the original recommendations. h. During construction the geotechnical engineer shall monitor compliance with the recommendations in the geotechnical report, particularly site excavation, shoring, soil support for foundations including piles, subdrainage installations, soil compaction and any other geotechnical aspects of the construction. Unless otherwise approved by the City, the specific recommendations contained in the soils report must be implemented. The geotechnical engineer shall provide to the City written, dated monitoring reports on the progress of the construction at such timely intervals as shall be specified. Omissions or deviations from the approved plans and specifications shall be immediately reported to the City. The final construction monitoring report shall contain a statement from the geotechnical engineer that, based upon his or her professional opinion, site observations and testing during the monitoring of the construction, the completed development substantially complies with the recommendations in the geotechnical report and with all geotechnical- related permit requirements. Occupancy of the project will not be approved until the report has been reviewed and accepted by the Director. i. Substantial weight shall be given to ensuring continued slope stability and the resulting public health, safety and welfare in determining whether a development should be allowed. j. The City may impose conditions that address site -work problems which could include, but are not limited to, limiting all excavation and drainage installation to the dry season, or sequencing activities such as installing erosion control and drainage systems well in advance of construction. A permit will be denied if it is determined by the Director that the development will increase the potential of soil movement that results in an unacceptable risk of damage to the proposed development, its site or adjacent properties. K. Sensitive Areas Permitted Uses and Alterations. 1. General Sensitive Areas Permitted Uses. All uses permitted in the Shoreline Jurisdiction buffers are allowed in sensitive areas within the jurisdiction except: a. Promenades b. Recreational structures c. Public pedestrian bridges d. Vehicle bridges e. New utilities f. Plaza connectors g. Water- dependent uses and their structures h. Essential streets, roads and rights -of -way i. Essential public facilities W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 52 of 79 74 j. Outdoor storage 2. In addition, the following uses are allowed: a. Maintenance activities of existing landscaping and gardens in a sensitive area buffer including, but not limited to, mowing lawns, weeding, harvesting and replanting of garden crops and pruning and planting of vegetation. The removal of established native trees and shrubs is not permitted. Herbicide use in sensitive areas or their buffers is not allowed without written permission of the City. b. Vegetation maintenance as part of sensitive area enhancement, creation or restoration. Herbicide use in sensitive areas or their buffers is not allowed without written permission of the City. 3. Conditional Uses. Dredging, where necessary to remediate contaminated sediments, if adverse impacts are mitigated, may be permitted. 4. Wetland Alterations. Alterations to wetlands are discouraged, are limited to the minimum necessary for project feasibility, and must have an approved mitigation plan developed in accordance with the standards in this chapter. a. Mitigation for wetlands shall follow the mitigation sequencing steps in this chapter and may include the following types of actions: (1) Creation the manipulation of the physical, chemical or biological characteristics to develop a wetland on an upland or deepwater site, where a biological wetland did not previously exist; (2) Re- establishment the manipulation of the physical, chemical or biological characteristics of a site with the goal of restoring wetland functions to a former wetland, resulting in a net increase in wetland acres and functions; (3) Rehabilitation the manipulation of the physical, chemical, or biological characteristics with the goal of repairing historic functions and processes of a degraded wetland, resulting in a gain in wetland function but not acreage; (4) Enhancement the manipulation of the physical, chemical or biological characteristics to heighten, intensify, or improve specific functions (such as vegetation) or to change the growth stage or composition of the vegetation present, resulting in a change in wetland functions but not in a gain in wetland acreage, or (5) A combination of the three types. b. Allowed alterations per wetland type and mitigation ratios are as follows: (1) Alterations are not permitted to Category I wetlands unless specifically exempted under the provisions of this Program. Mitigation will still be required at a rate of 4:1 for creation or re- establishment, 8:1 for rehabilitation, and 16:1 for enhancement. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeat Ord 2271 final 8 -15 -11 CL:bjs Page 53 of 79 75 (2) Alterations are not permitted to Category II wetlands unless specifically exempted under the provisions of this Program. Mitigation will still be required at a rate of 3:1 for creation or re- establishment, 6:1 for rehabilitation, and 12:1 for enhancement. (3) Alterations to Category III wetlands are prohibited except where the location or configuration of the wetland provides practical difficulties that can be resolved by modifying up to .10 (one- tenth) of an acre of. wetland. Mitigation for any alteration to a Category III wetland must be located contiguous to the altered wetland. Mitigation for any alteration to a Category III wetland must be provided at a ratio of 2:1 for creation or re- establishment, 4:1 for rehabilitation and 8:1 for enhancement alone. (4) Alterations to Category IV wetlands are allowed, where unavoidable and adequate mitigation is carried out in accordance with the standards of this section. Mitigation for alteration to a Category IV wetland will be 1.5:1 for creation or re- establishment and 3:1 for rehabilitation and 6:1 for enhancement. (5) Isolated wetlands formed on fill material in highly disturbed environmental conditions and assessed as having low overall wetland functions (scoring below 20 points) may be altered and /or relocated with the permission of the Director. These wetlands may include artificial hydrology or wetlands unintentionally created as the result of construction activities. The determination that a wetland is isolated is made by the US Army Corps of Engineers. 5. Watercourse Alterations. All impacts to a watercourse that degrade the functions and values of the watercourse shall be avoided. If alteration to the watercourse is unavoidable, all adverse impacts shall be mitigated in accordance with the approved mitigation plan as described in this chapter. Mitigation shall take place on -site or as close as possible to the impact location, and compensation shall be at a minimum 1:1 ratio. Any mitigation shall result in improved watercourse functions over existing conditions. a. Diverting or rerouting may only occur with the permission of the Director and an approved mitigation plan, as well as all necessary approvals by state agencies. Any watercourse that has critical wildlife habitat or is necessary for the life cycle or spawning of salmonids shall not be rerouted, unless it can be shown that the habitat will be improved for the benefit of the species. A watercourse may be rerouted or day lighted as a mitigation measure to improve watercourse function. b. Piping of any watercourse should be avoided. Relocation of a watercourse is preferred to piping; if piping occurs in a watercourse sensitive area, it shall be limited and shall require approval of the Director. Piping of Type 1 watercourses shall not be permitted. Piping may be allowed in Type 2, 3 or 4 watercourses if it is necessary for access purposes. Piping may be allowed in Type 4 watercourses if the watercourse has a degraded buffer, is located in a highly developed area and does not provide shade, temperature control, etc. for habitat. The applicant must comply with the conditions of this section, including: providing excess capacity to meet needs of the system during a 100 -year flood event, and providing flow restrictors and complying with water quality and existing habitat enhancement procedures. W: Word Processing \OrdinanceslSMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 76 CL:bjs Page 54 of 79 c. No process that requires maintenance on a regular basis will be acceptable unless this maintenance process is part of the regular and normal facilities maintenance process or unless the applicant can show funding for this maintenance is ensured for as long as the use remains. d. Piping projects shall be performed pursuant to the following applicable standards: (1) The conveyance system shall be designed to comply with the standards in current use and recommended by the Department of Public Works. (2) Where allowed, piping shall be limited to the shortest length possible as determined by the Director to allow access onto a property. (3) Where water is piped for an access point, those driveways or entrances shall be consolidated to serve multiple properties where possible, and to minimize the length of piping. (4) When required by the Director, watercourses under drivable surfaces shall be contained in an arch culvert using oversize or super span culverts for rebuilding of a streambed. These shall be provided with check dams to reduce flows, and shall be replanted and enhanced according to a plan approved by the Director. (5) All watercourse crossing shall be designed to accommodate fish passage. Watercourse crossings shall not block fish passage where the streams are fish bearing. (6) Stormwater run -off shall be detained and infiltrated to preserve the watercourse channel's dominant discharge. (7) All construction shall be designed to have the least adverse impact on the watercourse, buffer and surrounding environment. (8) Piping shall be constructed during periods of low flow, or as allowed by the State Department of Fish and Wildlife. (9) Water quality must be as good or better for any water exiting the pipe as for the water entering the pipe, and flow must be comparable. 6. Fish and Wildlife Conservation Area Alterations. Alterations to the Green /Duwamish River are regulated by the shoreline provisions of this SMP. Alterations to Fish and Wildlife Conservation Areas that have been created as restoration or habitat enhancement sites and are shown on the Sensitive Areas in the Shoreline Jurisdiction Map are prohibited and may only be authorized through a shoreline variance procedure. L. Sensitive Areas Mitigation. Mitigation shall be required for any proposals for dredging, filling, piping, diverting, relocation or other alterations of sensitive areas in as allowed in this chapter and in accordance with mitigation sequencing and the established mitigation ratios. The mitigation plan shall be developed as part of a sensitive area study by a qualified specialist. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bjs Page 55 of 79 77 1. Mitigation Sequencing. Applicants shall demonstrate that reasonable efforts have been examined with the intent to avoid and minimize impacts to sensitive areas and buffers. When an alteration to a sensitive area or its required buffer is proposed, such alteration shall be avoided, minimized or compensated for in the following order of preference: a. Avoidance of sensitive area and buffer impacts, whether by finding another site or changing the location of the proposed activity on -site; b. Minimizing sensitive area and buffer impacts by limiting the degree of impact on site; c. Mitigation actions that require compensation by replacing, enhancing, or substitution. 2. Criteria for Approval of Alterations and Mitigation. Alterations and mitigation plans are subject to Director approval, and may be approved only if the following findings are made: a. The alteration will not adversely affect water quality; b. The alteration will not adversely affect fish, wildlife, or their habitat; c. The alteration will not have an adverse effect on drainage and /or stormwater detention capabilities; d. The alteration will not lead to unstable earth conditions or create an erosion hazard or contribute to scouring actions; e. The alteration will not be materially detrimental to any other property; and f. The alteration will not have adverse effects on any other sensitive areas or the shoreline. g. The mitigation will result in improved functions such as water quality, erosion control, wildlife and fish habitat. 3. Mitigation Location. a. On -site mitigation shall be provided, except where it can be demonstrated that: (1) On -site mitigation is not scientifically feasible due to problems with hydrology, soils, or other factors; or (2) Mitigation is not practical due to potentially adverse impacts from surrounding land uses; or (3) Existing functional values created at the site of the proposed restoration are significantly greater than lost sensitive area functions; or W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 56 of 79 (4) Established regional goals for flood storage, flood conveyance, habitat or other sensitive area functions have been established and strongly justify location of mitigation at another site. b. Off -site mitigation shall occur within the shoreline jurisdiction in a location where the sensitive area functions can be restored. Buffer impacts must be mitigated at or as close as possible to the location of the impact. c. Wetland creation, relocation of a watercourse, or creation of a new fish and wildlife habitat shall not result in the new sensitive area or buffer extending beyond the development site and onto adjacent property without the agreement of the affected property owners, unless otherwise exempted by this chapter. 4. Mitigation Plan Content and Standards. The scope and content of a mitigation plan shall be decided on a case -by -case basis. As the impacts to the sensitive area increase, the mitigation measures to offset these impacts will increase in number and complexity. The minimum components of a complete mitigation plan are listed below. For wetland mitigation plans, the format should follow that established in "Wetland Mitigation in Washington State, Part 2— Developing Mitigation Plans" (Washington Department of Ecology, Corps of Engineers, EPA, March 2006, as amended). a. Baseline information of quantitative data collection or a review and synthesis of existing data for both the project impact zone and the proposed mitigation site. b. Environmental goals and objectives that describe the purposes of the mitigation measures. This should include a description of site- selection criteria, identification of target evaluation species, and resource functions. c. Performance standards for the specific criteria for fulfilling environmental goals, and for beginning remedial action or contingency measures. They may include water quality standards, species richness and diversity targets, habitat diversity indices, or other ecological, geological or hydrological criteria. The following shall be considered the minimum performance standards for approved sensitive area alterations: (1) Sensitive area functions and improved habitat for fish and wildlife are improved over those of the original conditions. (2) Hydrologic conditions, hydroperiods and watercourse channels are improved over existing conditions and the specific performance standards specified in the approved mitigation plan are achieved. (3) Acreage requirements for enhancement or creation are met. (4) Vegetation native to the Pacific Northwest is installed and vegetation survival and coverage standards over time are met and maintained. (5) Buffer and bank conditions and functions exceed the original state. W: Word Processing\Ordinances \SMP- Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 57 of 79 79 (6) Stream channel habitat and dimensions are maintained or improved such that the fisheries habitat functions of the compensatory stream reach meet or exceed that of the original stream. d. A detailed construction plan of the written specifications and descriptions of mitigation techniques. This plan should include the proposed construction sequence and construction management, and be accompanied by detailed site diagrams and blueprints that are an integral requirement of any development proposal. e. Monitoring and /or evaluation program that outlines the approach and frequency for assessing progress of the completed project. An outline shall be included that spells out how the monitoring data will be evaluated and reported. f. Maintenance plan that outlines the activities and frequency of maintenance to ensure compliance with performance standards. g. Contingency plan identifying potential courses of action and any corrective measures to be taken when monitoring or evaluation indicates project performance standards have not been met. h. Performance security or other assurance devices. 5. Mitigation Timing. a. Mitigation projects shall be completed prior to activities that will permanently disturb sensitive areas or their buffers and either prior to or immediately after activities that will temporarily disturb sensitive areas. b. Construction of mitigation projects shall be timed to reduce impacts to existing wildlife, flora and water quality, and shall be completed prior to use or occupancy of the activity or development. The Director may allow activities that permanently disturb wetlands or watercourses prior to implementation of the mitigation plan under the following circumstances: (1) To allow planting or re- vegetation to occur during optimal weather conditions; (2) To avoid disturbance during critical wildlife periods; or (3) To account for unique site constraints that dictate construction timing or phasing. c. Monitoring of buffer alterations shall be required for three to five years. All other alterations shall be monitored for minimum of five years. 6. Corrective Actions and Monitoring. The Director shall require subsequent corrective actions and long -term monitoring of the project if adverse impacts to regulated sensitive areas or their buffers are identified. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 $0 CL:bjs Page 58 of 79 7. Recording. The property owner receiving approval of a use or development pursuant to the Shoreline Master Program shall record the City- approved site plan clearly delineating the sensitive area and its buffer with the King County Division of Records and Elections. The face of the site plan must include a statement that the provisions of this chapter, as of the effective date of the ordinance from which the Shoreline Management Program derives or is thereafter amended, control use and development of the subject property, and provide for any responsibility of the latent defects or deficiencies. 8. Assurance Device. a. The Director may require a letter of credit or other security device acceptable to the City, to guarantee performance and maintenance requirements. All assurances shall be on a form approved by the City Attorney. b. When alteration of a sensitive area is approved, the Director may require an assurance device, on a form approved by the City Attorney, to cover the monitoring costs and correction of possible deficiencies for the term of the approved monitoring and maintenance program. c. The assurance device shall be released by the Director upon receipt of written confirmation submitted to the Department from the applicant's qualified professional that the mitigation or restoration has met its performance standards and is successfully established. Should the mitigation or restoration meet performance standards and be successfully established in the third or fourth year of monitoring, the City may release the assurance device early. The assurance device may be held for a longer period, if at the end of the monitoring period, the performance standards have not been met or the mitigation has not been successfully established. d. Release of the security does not absolve the property owner of responsibility for maintenance or correcting latent defects or deficiencies or other duties under law. Section 10. Public Access to the Shoreline Adopted. TMC Section 18.44.100 is hereby amended to read as follows: A. Applicability. 1. Public access shall be provided on all property that abuts the Green /Duwamish River shoreline in accordance with this section as further discussed below where any of the following conditions are present: a. Where a development or use will create increased demand for public access to the shoreline, the development or use shall provide public access to mitigate this impact. For the purposes of this section, an "increase in demand for public access" is determined by evaluating whether the development reflects an increase in the land use intensity (for example converting a warehouse to office or retail use), or a significant increase in the square footage of an existing building. A significant increase is defined as an increase of 3,000 square feet. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 cL:bjs Page 59 of 79 b. Where a development or use will interfere with an existing public access way, the development or use shall provide public access to mitigate this impact. Impacts to public access may include blocking access or discouraging use of existing on -site or nearby accesses. c. Where a use or development will interfere with a public use of lands or waters subject to the public trust doctrine, the development shall provide public access to mitigate this impact. d. Where the development is proposed by a public entity or on public lands. e. Where identified on the Shoreline Public Access Map. f. Where a land division of five or greater lots, or a residential project of five or greater residential units, is proposed. 2. For the purposes of this section, an "increase in demand for public access" is determined by evaluating whether the development reflects an increase in the land use intensity, for example converting a warehouse to office or retail use, or a significant increase in the square footage of an existing building. A significant increase is defined as an increase of 3,000 square feet. The extent of public access required will be proportional to the amount of increase in the demand for public access. For smaller projects, the Director will review the intent of this section and the scope of the project to determine a reasonable amount of public access to be carried out. Depending on the amount of increase, the project may utilize the alternative provisions for meeting public access in TMC Section 18.44.100(F). The terms and conditions of TMC Sections 18.44.100(A) and (B) shall be deemed satisfied if the applicant and the City agree upon a master trail plan providing for public paths and trails within a parcel or group of parcels. 3. The provisions of this section do not apply to the following: a. Short plats of four or fewer lots; b. Where providing such access would cause unavoidable health or safety hazards; c. Where providing such access would create inherent and unavoidable security problems; or d. Where providing such access would cause significant ecological impacts that cannot be mitigated. An applicant claiming an exemption under items 3(b) (d) above must comply with the procedures in TMC Section 18.44.100(F). B. General Standards. 1. To improve public access to the Green /Duwamish River, sites shall be designed to provide: W: Word Processing\Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 82 CL:bjs Page 60 of 79 a. Safe, visible and accessible pedestrian and non motorized vehicle connections between proposed development and the river's edge, particularly when the site is adjacent to the Green River Trail or other approved trail system; and b. Public pathway entrances that are clearly visible from the street edge; and c. Clearly identified pathways that are separate from vehicular circulation areas. This may be accomplished through the use of special paving materials such as precast pavers, bomonite, changes in color or distinct and detailed scoring patterns and textures. d. Site elements that are organized to clearly distinguish between public and private access and circulation systems. 2. Required public access shall be fully developed and available for public use at the time of occupancy in accordance with development permit conditions except where the decision maker determines an appropriate mechanism for delayed public access implementation is necessary for practical reasons. Where appropriate, a bond or cash assignment may be approved, on review and approval by the Director of Community Development, to extend this requirement for 90 days from the date the Certificate of Occupancy is issued. 3. Public access easements and related permit conditions shall be recorded on the deed of title or the face of the plat, short plat or approved site plan as a condition tied to the use of the land. Recording with the County shall occur prior to the issuance of an Occupancy Permit or final plat approval. Upon re- development of such a site, the easement may be relocated to facilitate the continued public access to the shoreline. 4. Approved signs indicating the public's right of access and hours of access, if restricted, shall be constructed, installed and maintained by the applicant in conspicuous locations at public access sites. Signs should be designed to distinguish between public and private areas. Signs controlling or restricting public access may be approved as a condition of permit approval. 5. Required access must be maintained throughout the life of the project. 6. Public access features shall be separated from residential uses through the use of setbacks, low walls, berms, landscaping, or other device of a scale and materials appropriate to the site. 7. Shared public access between developments is encouraged. Where access is to be shared between adjacent developments, the minimum width for the individual access easement may be reduced, provided the total width of easements contributed by each adjacent development equals a width that complies with Fire Department requirements and /or exceeds the minimum for an individual access. 8. Public access sites shall be connected directly to the nearest public area (e.g., street, public park, or adjoining public access easement). Where connections are W: Word Processing \OrdinanceS\SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 61 of 79 i not currently possible, the site shall be designed to accommodate logical future connections. C. Requirements for Shoreline Trails. Where public access is required under TMC Section 18.44.100(A)1 above, the requirement will be met by provision of a shoreline trail as follows: 1. Development on Properties Abutting Existing Green River Trail. An applicant seeking to develop property abutting the existing trail shall meet public access requirements by upgrading the trail along the property frontage to meet the standards of a 14- foot -wide trail with 2 -foot shoulders on each side. 2. Development on Properties Where New Trails are Planned. An applicant seeking to develop property abutting the river in areas identified for new shoreline trail segments shall meet public access requirements by dedicating an 18- foot -wide trail easement to the City for public access along the river. D. Publicly -Owned Shorelines. 1. Shoreline development by any public entities, including but not limited to the City of Tukwila, King County, port districts, state agencies, or public utility districts, shall include public access measures as part of each development project, unless such access is shown to be incompatible due to reasons of safety, security, impact to the shoreline environment or other provisions listed in this section. 2. The following requirements apply to street ends and City -owned property adjacent to the river. a. Public right -of -way and "road- ends," or portions thereof, shall not be vacated and shall be maintained for future public access. b. Unimproved right -of -ways and portions of right -of -ways, such as street ends and turn -outs, shall be dedicated to public access uses until such time as the portion becomes improved right -of -way. Uses shall be limited to passive outdoor recreation, car top boat launching, fishing, interpretive /educational uses, and /or parking, which accommodates these uses, and shall be designed so as to not interfere with the privacy of adjacent residential uses. c. City -owned facilities within the Shoreline Jurisdiction shall provide new trails and trail connections to the Green River Trail in accordance with approved plans and this SMP. d. All City -owned recreational facilities within the Shoreline Jurisdiction, unless qualifying for an exemption as specified in this chapter, shall make adequate provisions for: (1) Non motorized and pedestrian access; (2) The prevention of trespass onto adjacent properties through landscaping, fencing or other appropriate measures; W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeat Ord 2271 final 8 -15 -11 84 CL:bjs Page 62 of 79 (3) Signage indicating the public right -of -way to shoreline areas; and (4) Mechanisms to prevent environmental degradation of the shoreline from public use. E. Public Access Incentives. 1. The minimum yard setback for buildings, uses, utilities or development from non- riverfront lot lines may be reduced as follows: a. Where a development provides a public access corridor between off- site areas, or public shoreline areas to public shoreline areas, one side yard may be reduced to a zero lot line placement; or b. Where a development provides additional public access area(s) equal in area to at least 2.5% of total building area, the front yard (the landward side of the development) may be reduced by 50 2. The maximum height for structures may be increased by 15% when: a. Development devotes at least 5% of its building or land area to public shoreline access: or b. Development devotes at least 10% of its land area to employee shoreline access. 3. The maximum height for structures under TMC Section 18.44.070.C.3. and this section may be increased by a maximum of 25% when: a. One of the criteria in TMC Section 18.44.100.E.2 is met; and b. The applicant restores or enhances the entire shoreline buffer, including, but not limited to, paved areas no longer in use on the property to offset the impact of the increase in height. Buffer restoration /enhancement projects undertaken to meet the requirements of TMC Section 18.44.100(F) do not qualify as restoration or enhancement for purposes of the height incentive provided in this subsection. c. No combination of incentives may be used to gain more than a 25% total height increase for a structure. 4. The maximum height for structures may be increased for properties that construct a 14- foot -wide paved trail with a 2- foot -wide shoulder on each side for public access along the river in areas identified for new shoreline trail segments, or where, in the case of properties containing or abutting existing public access trails, the existing trail either meets the standard of a 14- foot -wide trail with 2- foot -wide shoulders on either side or the property owner provides any necessary easements and improvements to upgrade the existing trail to that standard along the property frontage. During the project review, the increased height shall be affirmatively demonstrated to: W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 63 of 79 a. Not block the views of a substantial number of residences; b. Not cause environmental impacts such as, but not limited to, shading of the river buffer or light impacts adversely affecting the river corridor; and c. Achieve no net loss of ecological function. In no case shall the building height be greater than 115 feet pursuant to this provision. F. Exemptions from Provision of On -Site Public Access. 1. Requirements for providing on -site general public access, as distinguished from employee access, will not apply if the applicant can demonstrate one or more of the following: a. Unavoidable health or safety hazards to the public exist related to the primary use that cannot be prevented by any practical means. b. Inherent security requirements of the use cannot be satisfied through the application of alternative design features or other solutions. c. The cost of providing the access, easement or other public amenity on or off the development site is unreasonably disproportionate to the total long -term cost of the proposed development. d. Unavoidable environmental harm or net loss of shoreline ecological functions that cannot be adequately mitigated will result from the public access. e. Access is not feasible due to the configuration of existing parcels and structures, such that access areas are blocked in a way that cannot be remedied reasonably by the proposed development. f. Significant undue and unavoidable conflict between the proposed access and adjacent uses would occur and cannot be mitigated. g. Space is needed for water dependent uses or navigation. 2. In order to meet any of the above referenced conditions, the applicant must first demonstrate, and the City determine in its findings through a Type II decision, that all reasonable alternatives have been exhausted including, but not limited to: a. Regulating access by such means as maintaining a gate and /or limiting hours of use; b. Designing separation of uses and activities through fencing, terracing, hedges or other design features; or c. Providing access on a site geographically separate from the proposal such as a street end cannot be accomplished. 3. If the above conditions are demonstrated, and the proposed development is not subject to the Parks Impact Fee, alternative provisions for meeting public access are required and include: W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 64 of 79 M a. Development of public access at an adjacent street end; or b. Protection through easement or setbacks of landmarks, unique natural features or other areas valuable for their interpretive potential; or c. Contribution of materials and /or labor toward projects identified in the Parks and Recreation Master Plan, the Shoreline Restoration Plan, or other City adopted plan; or d. In lieu of providing public access under this section, at the Director's discretion, the applicant may provide restoration /enhancement of the shoreline jurisdiction to a scale commensurate with the foregone public access. Section 11. Shoreline Design Guidelines. TMC Section 18.44.110 is hereby amended to read as follows: 18.44.110 Shoreline Design Guidelines The Green /Duwamish River is an amenity that should be valued and celebrated when designing projects that will be located along its length. If any portion of a project falls within the shoreline jurisdiction, then the entire project will be reviewed under these guidelines as well as the relevant sections of the Design Review Chapter of the Zoning Code (TMC Chapter 18.60). The standards of TMC Chapter 18.60 shall guide the type of review, whether administrative or by the Board of Architectural Review. A. The following standards apply to development, uses and activities in the Urban Conservancy and High Intensity Environments and non residential development in the Shoreline Residential Environment. 1. Relationship of Structure to Site. Development within the shoreline jurisdiction shall demonstrate compliance with the following: a. Respect and reflect the shape of the shoreline; b. Orient building elements to site such that public river access, both visual and physical is enhanced, c. Orient buildings to allow for casual observation of pedestrian and trail activity from interior spaces; d. Site and orient buildings to provide maximum views from building interiors toward the river and the shoreline; e. Orient public use areas and private amenities to the river; f. Clearly allocate spaces, accommodating parking, vehicular circulation and buildings to preserve existing stands of vegetation or trees so that natural areas can be set aside, improved, or integrated into site organization and planning; g. Clearly define and separate public from non public spaces with the use of paving, signage, and landscaping. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 65 of 79 i 2. Building Design. Development within the shoreline jurisdiction shall demonstrate compliance with the following: a. To prevent building mass and shape from overwhelming the desired human scale along the river, development shall avoid blank walls on the public and river sides of buildings. b. Buildings should be designed to follow the curve of the river and respond to changes in topography; buildings must not "turn their back" to the river. c. Design common areas in buildings to take advantage of shoreline views and access; incorporate outdoor seating areas that are compatible with shoreline access. d. Consider the height and scale of each building in relation to the site. e. Extend site features such as plazas that allow pedestrian access and enjoyment of the river to the landward side of the buffer's edge. f. Locate lunchrooms and other common areas to open out onto the water -ward side of the site to maximize enjoyment of the river. g. Design structures to take advantage of the river frontage location by incorporating features such as: (1) plazas and landscaped open space that connect with a shoreline trail system; (2) windows that offer views of the river; or (3) pedestrian entrances that face the river. h. View obscuring fencing is permitted only when necessary for documentable use requirements and must be designed with landscaping per the Vegetation Protection and Landscaping- Section. Other fencing, when allowed, must be designed to complement the proposed and /or existing development materials and design; and i. Where there are public trails, locate any fencing between the site and the landward side of the shoreline trail. 3. Design of Public Access. Development within the shoreline jurisdiction shall demonstrate compliance with the following: a. Public access shall be barrier free, where feasible, and designed consistent with the Americans with Disabilities Act. b. Public access landscape design shall use native vegetation, in accordance with the standards in the Vegetation Protection and Landscaping Section. Additional landscape features may be required where desirable to provide public /private space separation and screening of utility, service and parking areas. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 66 of 79 c. Furniture used in public access areas shall be appropriate for the proposed level of development, and the character of the surrounding area. For example, large urban projects should provide formal benches; for smaller projects in less- developed areas, simpler, less formal benches or suitable alternatives are appropriate. d. Materials used in public access furniture, structures or sites shall be: (1) Durable and capable of withstanding exposure to the elements; (2) Environmentally friendly and take advantage of technology in building materials, lighting, paved surfaces, porous pavement, etc, wherever practical; and (3) Consistent with the character of the shoreline and the anticipated use. e. Public- Private Separation. (1) Public access facilities shall look and feel welcoming to the public, and not appear as an intrusion into private property. (2) Natural elements such as logs, grass, shrubs, and elevation separations are encouraged as means to define the separation between public and private space. Section 12. Shoreline Restoration Adopted. TMC Section 18.44.120 is hereby amended to read as follows: 18.44.120 Shoreline Restoration A. Shoreline Substantial Development Permit Not Required. Shoreline restoration projects shall be allowed without a Shoreline Substantial Development Permit when these projects meet the criteria established by WAC 173- 27- 040(o) and (p) and RCW 90.58.580. B. Changes in Shoreline Jurisdiction Due to Restoration. 1. Relief may be granted from Shoreline Master Program standards and use regulations in cases where shoreline restoration projects result in a change in the location of the OHWM and associated Shoreline Jurisdiction on the subject property and /or adjacent properties, and where application of this chapter regulations would preclude or interfere with the uses permitted by the underlying zoning, thus presenting a hardship to the project proponent. a. Applications for relief, as specified below, must meet the following criteria: (1) The proposed relief is the minimum necessary to relieve the hardship; W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 67 of 79 i (2) After granting the proposed relief, there is net environmental benefit from the restoration project; and (3) Granting the proposed relief is consistent with the objectives of the shoreline restoration project and with the Shoreline Master Program. (4) Where a shoreline restoration project is created as mitigation to obtain a development permit, the project proponent required to perform the mitigation is not eligible for relief under the provisions of this section. b. The Department of Ecology must review and approve applications for relief. c. For the portion of property that moves from outside Shoreline Jurisdiction to inside Shoreline Jurisdiction as a result of the shoreline restoration project, the City may consider the following, consistent with the criteria in TMC Section 18.44.120. B. 1. a.: (1) permitting development for the full range of uses of the underlying zoning consistent with the Zoning Code, including uses that are not water oriented; (2) waiving the requirement to obtain a shoreline substantial development permit if it is otherwise exempt from the requirement for a substantial development permit; (3) waiving the provisions for public access; (4) waiving the requirement for shoreline design review; and (5) waiving the development standards set forth in this chapter. d. The intent of the exemptions identified above in subparagraphs B.1.c.(1) to B.1.c.(5) is to implement the restoration projects of the Shoreline Master Program Restoration Plan, which reflects the projects identified in the Water Resource Inventory Area (WRIA) 9 Plan pursuant to Policy 5.2 of the SMP. 2. Consistent with the provisions of subparagraphs B.1.a, 1.b and 1.c above, the Shoreline Residential Environment Buffer, High Intensity or Urban Conservancy Environment Buffer width may be reduced to no less than 25 feet measured from the new location of the OHWM for the portion of the property that moves from outside the Shoreline Jurisdiction to inside Shoreline Jurisdiction as a result of the shoreline restoration project, subject to the following standards: a. The 25 -foot buffer area must be vegetated according to the requirements of the Vegetation Protection and Landscaping Section or as otherwise approved by the City; and b. The proponents of the restoration project are responsible for the installation and maintenance of the vegetation. W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 90 CL:bjs Page 68 of 79 3. The habitat restoration project proponents must record with King County a survey that identifies the location of the OHWM location prior to implementation of the shoreline restoration project, any structures that fall within the Shoreline Jurisdiction, and the new location of the OHWM once construction of the shoreline restoration project is completed. 4. Shoreline restoration projects must obtain all U.S. Army Corps of Engineers and Washington State Department of Fish and Wildlife approvals as well as written approval from the City. Section 13. Administration Requirements Adopted. TMC Section 18.44.130 is hereby amended to read as follows: 18.44.130 Administration A. Applicability of Shoreline Master Program and Substantial Development Permit. 1. Development in the Shoreline Jurisdiction. Based on guidelines in the SMA for a Minimum Shoreline Jurisdiction, Tukwila's Shoreline Jurisdiction is defined as follows: The Tukwila Shoreline Jurisdiction includes the channel of the Green /Duwamish River, its banks, the upland area which extends from the OHWM landward for 200 feet on each side of the river, floodways and all associated wetlands within its floodplain. The floodway shall not include those lands that have historically been protected by flood control devices and therefore have not been subject to flooding with reasonable regularity. 2. Applicability. The Tukwila SMP applies to uses, change of uses, activities or development that occurs within the above defined Shoreline Jurisdiction. All proposed uses and development occurring within the Shoreline Jurisdiction must conform to Chapter 90.58 RCW, the SMA, and this chapter whether or not a permit is required. B. Substantial Development Permit Requirements. 1. Permit Application Procedures. Applicants for a Shoreline Substantial Development Permit shall comply with permit application procedures in TMC Chapter 18.104. 2. Exemptions. a. To qualify for an exemption, the proposed use, activity or development must meet the requirements for an exemption as described in WAC 173 -27 -040, except for properties that meet the requirements of the Shoreline Restoration Section, TMC Section 18.44.120. The purpose of a shoreline exemption is to provide a process for uses and activities which do not trigger the need for a Substantial Development Permit, but require compliance with all provisions of the City's SMP and overlay district. W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 69 of 79 IrM b. The Director may impose conditions to the approval of exempted developments and /or uses as necessary to assure compliance of the project with the SMA and the Tukwila SMP, per WAC 173- 27- 040(e). For example, in the case of development subject to a building permit but exempt from the shoreline permit process, the Building Official or other permit authorizing official, through consultation with the Director, may attach shoreline management terms and conditions to building permits and other permit approvals pursuant to RCW 90.58.140. 3. A substantial development permit shall be granted only when the development proposed is consistent with the Shoreline Master Program. C. Shoreline Conditional Use Permit. 1. Purpose. As stated in WAC 173 -27 -160, the purpose of a Conditional Use Permit (CUP) is to allow greater flexibility in the application of use regulations of this chapter in a manner consistent with the policies of RCW 90.58.020. In authorizing a conditional use, special conditions may be attached to the permit by the City or the Department of Ecology to prevent undesirable effects of the proposed use and /or assure consistency of the project with the SMA and the City's SMP. Uses which are specifically prohibited by the Shoreline Master Program may not be authorized with approval of a CUP. 2. Application. Shoreline Conditional Use Permits are a Type 4 Permit processed under TMC Chapter 18.104. 3. Application requirements. Applicants must meet all requirements for permit application and approvals indicated in TMC Chapter 18.104 and this chapter. 4. Approval Criteria. a. Uses classified as shoreline conditional uses may be authorized, provided that the applicant can demonstrate all of the following: (1) The proposed use will be consistent with the policies of RCW 90.58.020 and the policies of the Tukwila Shoreline Master Program; (2) The proposed use will not interfere with the normal public use of public shorelines; (3) The proposed use of the site and design of the project will be compatible with other permitted uses within the area and with uses planned for the area under the Comprehensive Plan and this chapter; (4) The proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and (5) The public interest suffers no substantial detrimental effect. b. In the granting of all Conditional Use Permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if Conditional Use Permits were granted to other developments in the area W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 70 of 79 92 where similar circumstances exist, the total of the conditional uses shall also remain consistent with the policies of RCW 90.58 and all local ordinances and shall not produce substantial adverse effects to the shoreline environment. D. Shoreline Variance Permits. 1. Purpose. The purpose of a Shoreline Variance Permit is strictly limited to granting relief from specific bulk, dimensional, or performance standards set forth in this chapter where there are extraordinary or unique circumstances relating to the physical character or configuration of property such that the strict implementation of this chapter will impose unnecessary hardships on the applicant or thwart the Shoreline Management Act policies as stated in RCW 90.58.020. Reasonable use requests that are located in the shoreline must be processed as a variance, until such time as the Shoreline Management Act is amended to establish a process for reasonable uses. 2. Application requirements. Applicants must meet all requirements for a Type 3 permit application and approvals indicated in TMC Chapter 18.104. 3. Shoreline Variance Permits should be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances the applicant must demonstrate that extraordinary circumstances exist and the public interest will suffer no substantial detrimental effect. 4. Approval Criteria. A Shoreline Variance Permit for a use, activity or development that will be located landward of the ordinary high water mark and /or landward of any wetland may be authorized provided the applicant can demonstrate all of the following: a. The strict application of the bulk, dimensional, or performance standards set forth in this chapter preclude or significantly interfere with a reasonable use of the property not otherwise prohibited by this chapter. b. The hardship described in TMC Section 18.44.130.D.4. is specifically related to the property and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of this chapter, and not from the owner's own actions or deed restrictions; and that the variance is necessary because of these conditions in order to provide the owner with use rights and privileges permitted to other properties in the vicinity and zone in which the property is situated. c. The design of the project will be compatible with other authorized uses within the area and with uses planned for the area under the Comprehensive Plan and SMP and will not cause adverse impacts to adjacent properties or the shoreline environment. d. The variance will not constitute a grant of special privilege not enjoyed by other properties in the area. e. The variance is the minimum necessary to afford relief. f. The public interest will suffer no substantial detrimental effect. W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 71 of 79 5. Shoreline Variance Permits Waterward of OHWM. a. Shoreline variance permits for development and /or uses that will be located either waterward of the ordinary high water mark or within any sensitive area may be authorized only if the applicant can demonstrate all of the following: (1) The strict application of the bulk, dimensional or performance standards set forth in this Master Program preclude all reasonable permitted use of the property; (2) The proposal is consistent with the criteria established under TMC Section 18.44.130.D.4., "Approval Criteria;" and (3) The public rights of navigation and use of the shorelines will not be adversely affected by the granting of the variance. b. In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area such that the total of the variances would remain consistent with RCW 90.58.020 and not cause substantial adverse effects to the shoreline environment. c. Variances from the use regulations of this chapter are prohibited. E. Non- Conforming Development. 1. Non- Conforming Uses. Any non conforming lawful use of land that would not be allowed under the terms of this chapter may be continued as an allowed, legal, non conforming use, defined in TMC Chapter 18.06 or as hereafter amended, so long as that use remains lawful, subject to the following: a. No such non- conforming use shall be enlarged, intensified, increased or extended to occupy a greater use of the land, structure or combination of the two, than was occupied at the effective date of adoption of this chapter except as authorized in TMC Section 18.66.120. b. No non conforming use shall be moved or extended in whole or in part to any other portion of the lot or parcel occupied by such use on the effective date of adoption of this chapter. c. If any such non conforming use ceases for any reason for a period of more than 24 consecutive months, any subsequent use shall conform to the regulations specified by in this chapter for the shoreline environment in which such use is located. Upon request of the owner, prior to the end of the 24 consecutive months and upon reasonable cause shown, the City Council may grant an extension of time beyond the 24 consecutive months using the criteria set forth in TMC Section 18.44.130.E.4. d. If a change of use is proposed to a use determined to be non- conforming by application of provisions in this chapter, the proposed new use must be a permitted use in this chapter or a use approved under a Type 2 permit with public notice process. For purposes of implementing this section, a change of use constitutes a W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 94 CL:bjs Page 72 of 79 change from one permitted or conditional use category to another such use category as listed within the Shoreline Use Matrix. e. A structure that is being or has been used for a non conforming use may be used for a different non conforming use only upon the approval of a Type 2 permit subject to public notice. Before approving a change in non conforming use, the following findings must be made: (1) No reasonable alternative conforming use is practical. (2) The proposed use will be at least as consistent with the policies and provisions of the SMP and as compatible with the uses in the area as the non- conforming use. (3) The use or activity is enlarged, intensified, increased or altered only to the minimum amount necessary to achieve the intended functional purpose. (4) The structure(s) associated with the non conforming use shall not be expanded in a manner that increases the extent of the non conformity. (5) The change in use will not create adverse impacts to shoreline ecological functions and /or processes. (6) The applicant restores and /or enhances the entire shoreline buffer, including but not limited to, paved areas no longer in use on the property, to offset the impact of the change of use per the vegetation management standards of this chapter. This may include the restoration of paved areas to vegetated area if no longer in use. (7) The use complies with the Type 2 permit process of TMC Chapter 18.104. (8) The preference is to reduce exterior uses in the buffer to the maximum extent possible. 2. Non Conforming Structures. Where a lawful structure exists on the effective date of adoption of this chapter that could not be built under the terms of this chapter by reason of restrictions on height, buffers or other characteristics of the structure, it may be continued as an allowed, legal structure so long as the structure remains otherwise lawful subject to the following provisions: a. Such structures may be repaired, maintained, upgraded and altered provided that: (1) The structure may not be enlarged or altered in such a way that increases its degree of nonconformity or increases its impacts to the functions and values of the shoreline environment except as authorized in TMC Section 18.66.120, and (2) The cost of the alterations may not exceed an aggregate cost of 50% of the value of the building or structure in any 3 -year period based upon its most recent assessment, unless the amount over 50% is used to make the building or W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 73 of 79 IM structure more conforming, or is used to restore to a safe condition any portion of a building or structure declared unsafe by a proper authority. b. Should such structure be destroyed by any accidental means, the structure may be reconstructed to its original dimensions and location on the lot provided application is made for permits within 12 months of the date the damage occurred and all reconstruction is completed within two years of permit issuance. In the event the property is redeveloped, such re- development must be in conformity with the provisions of this chapter. c. Should such structure be moved for any reason or any distance whatsoever, it shall thereafter conform to the regulations of this chapter after it is moved. d. When a non conforming structure, or structure and premises in combination, is vacated or abandoned for 24 consecutive months, the structure, or structure and premises in combination, shall thereafter be required to be in conformance with the regulations of this chapter. Upon request of the owner, prior to the end of the 24 consecutive months and upon reasonable cause shown, the City Council may grant an extension of time beyond the 24 consecutive months using the criteria in TMC Section 18.44.130.E.4. e. Residential structures located in any Shoreline Residential Environment and in existence at the time of adoption of this chapter shall not be deemed nonconforming in terms of height, residential use, or location provisions of this title. Such buildings may be rebuilt after a fire or other natural disaster to their original dimensions, location and height, but may not be changed except as provided in the non- conforming uses section of this chapter. f. Single- family structures in the Shoreline Residential Environment that have legally non conforming setbacks from the OHWM per the SMP buffer shall be allowed to expand the ground floor only along the existing building line(s) as long as the existing distance from the nearest point of the structure to the OHWM is not reduced and the square footage of new intrusion into the buffer does not exceed 50% of the square footage of the current intrusion. As a condition of building permit approval, a landscape plan showing removal of invasive plant species within the entire shoreline buffer and replanting with appropriate native species must be submitted to the City. Plantings should be maintained through the establishment period. g. A non conforming use, within a non conforming structure, shall not be allowed to expand into any other portion of the structure. 3. For the purposes of this section, altered or partially reconstructed is defined as work that does not exceed 50% of the assessed valuation of the building over a three -year period. W: Word Processing \Ordinances\SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 96 CL:bjs Page 74 of 79 4. Requests for Time Extension Non conforming Uses and Structures. a. A property owner may request, prior to the end of the 24 consecutive months, an extension of time beyond the 24 consecutive months. Such a request shall be considered as a Type 2 permit under TMC Chapter 18.104 and may be approved only when: (1) For a non conforming use, a finding is made that no reasonable alternative conforming use is practical. (2) For a non conforming structure, special economic circumstances prevent the lease or sale of said structure within 24 months. (3) The applicant restores and /or enhances the shoreline buffer on the property to offset the impact of the continuation of the non conforming use. For non- conforming uses, the amount of buffer to be restored and /or enhanced will be determined based on the percentage of the existing building used by the non- conforming use for which a time extension is being requested. Depending on the size of the area to be restored and /or enhanced, the Director may require targeted plantings rather than a linear planting arrangement. The vegetation management standards of this program shall be used for guidance on any restoration /enhancement. For non- conforming structures, for each six -month extension of time requested, 15% of the available buffer must be restored /enhanced. b. Conditions may be attached to the permit that are deemed necessary to assure compliance with the above findings, the requirements of the Master Program and the Shoreline Management Act and to assure that the use will not become a nuisance or a hazard. 5. Building Safety. Nothing in this SMP shall be deemed to prevent the strengthening or restoring to a safe condition of any non conforming building or part thereof declared to be unsafe by order of any City official charged with protecting the public safety. a. Alterations or expansion of a non conforming structure that are required by law or a public agency in order to comply with public health or safety regulations are the only alterations or expansions allowed. b. Alterations or expansions permitted under this section shall be the minimum necessary to meet the public safety concerns. 6. Non Conforming Parking Lots. a. Nothing contained in this chapter shall be construed to require a change in any aspect of a structure or facility covered thereunder including, without limitation, parking lot layout, loading space requirements and curb -cuts, for any structure or facility which existed on the date of adoption of this chapter. b. If a change of use takes place or an addition is proposed that requires an increase in the parking area by an increment less than 100 the requirements of this chapter shall be complied with for the additional parking area. W: Word Processing \Ordinances \SMP- Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 CL:bjs Page 75 of 79 M c. If a change of use takes place or an addition is proposed that requires an increase in the parking area by an increment greater than 100 the requirements of this chapter shall be complied with for the entire parking area. 7. Non- Conforming Landscape Areas. a. Adoption of the vegetation protection and landscaping regulations contained in this chapter shall not be construed to require a change in the landscape improvements for any legal landscape area that existed on the date of adoption of this chapter, unless and until the property is redeveloped or alteration of the existing structure is made beyond the thresholds provided herein. b. At such time as the property is redeveloped or the existing structure is altered beyond the thresholds provided herein and the associated premises does not comply with the vegetation protection and landscaping requirements of this chapter, a landscape plan that conforms to the requirements of this chapter shall be submitted to the Director for approval. Section 14. Appeals. TMC Section 18.44.140 is hereby amended to read as follows: 18.44.140 Appeals Any appeal of a decision by the City on a Shoreline Substantial Development Permit, Shoreline Conditional Use or Shoreline Variance must be appealed to the Shoreline Hearing Board. Section 15. Enforcement and Penalties. TMC Section 18.44.150 is hereby amended to read as follows: 18.44.150 Enforcement and Penalties A. Violations. The following actions shall be considered violations of this chapter: 1. To use, construct or demolish any structure, or to conduct clearing, earth moving, construction or other development not authorized under a Substantial Development Permit, Conditional Use Permit or Variance Permit, where such permit is required by this chapter. 2. Any work which is not conducted in accordance with the plans, conditions, or other requirements in a permit approved pursuant to this chapter, provided that the terms or conditions are stated in the permit or the approved plans. 3. To remove or deface any sign, notice, complaint or order required by or posted in accordance with this chapter. 4. To misrepresent any material fact in any application, plans or other information submitted to obtain any shoreline use or development authorization. 5. To fail to comply with the requirements of this chapter. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 98 CL:bjs Page 76 of 79 B. Enforcement. It shall be the duty of the Director to enforce this chapter subject to the terms and conditions of TMC Chapter 8.45. C. Inspection Access. 1. For the purpose of inspection for compliance with the provisions of a permit or this chapter, authorized representatives of the Director may enter all sites for which a permit has been issued. 2. Upon completion of all requirements of a permit, the applicant shall request a final inspection by contacting the planner of record. The permit process is complete upon final approval by the planner. D. Penalties. 1. Any violation of any provision of the SMP, or failure to comply with any of the requirements of this chapter shall be subject to the penalties prescribed in Chapter 8.45 of the Tukwila Municipal Code "Enforcement and shall be imposed pursuant to the procedures and conditions set forth in that chapter. 2. Penalties assessed for violations of the SMP shall be determined by TMC Chapter 8.45.100, Penalties. 3. It shall not be a defense to the prosecution for failure to obtain a permit required by this chapter, that a contractor, subcontractor, person with responsibility on the site, or person authorizing or directing the work, erroneously believed a permit had been issued to the property owner or any other person. E. Remedial Measures Required. In addition to penalties provided in TMC Chapter 8.45, the Director may require any person conducting work in violation of this chapter to mitigate the impacts of unauthorized work by carrying out remedial measures. 1. Remedial measures must conform to the policies and guidelines of this chapter and the Shoreline Management Act. 2. The cost of any remedial measures necessary to correct violation(s) of this chapter shall be borne by the property owner and /or applicant. F. Injunctive Relief. 1. Whenever the City has reasonable cause to believe that any person is violating or threatening to violate this chapter or any rule or other provisions adopted or issued pursuant to this chapter, it may, either before or after the institution of any other action or proceeding authorized by this ordinance, institute a civil action in the name of the City for injunctive relief to restrain the violation or threatened violation. Such action shall be brought in King County Superior Court. 2. The institution of an action for injunctive relief under this section shall not relieve any party to such proceedings from any civil or criminal penalty prescribed for violations of the Master Program. W: Word Processing \Ordinances \SMP- Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 a:bjs Page 77 of 79 3• G. Abatement. Any use, structure, development or work that occurs in violation of this chapter, or in violation of any lawful order or requirement of the Director pursuant to this section, shall be deemed to be a public nuisance and may be abated in the manner provided by the Tukwila Municipal Code 8.45.105. Section 16. Liability. TMC Section 18.44.160 is hereby amended to read as follows: 18.44.160 Liability A. Liability for any adverse impacts or damages resulting from work performed in accordance with a permit issued on behalf of the City within the City limits shall be the sole responsibility of the owner of the site for which the permit was issued. B. No provision of or term used in this chapter is intended to impose any duty upon the City or any of its officers or employees that would subject them to damages in a civil action. Section 17. Applicability of Amended Zoning Code. After the effective date of this ordinance, Chapter 18.44 of the Zoning Code, as hereby amended, shall apply to all properties subject to the shoreline overlay, provided that nothing contained herein shall be deemed to override any vested rights or require any alteration of a non conforming use or non conforming structure, except as specifically provided in Chapter 18.44 of the Zoning Code, as amended. Section 18. Repealer. Ordinance No. 2271 is hereby repealed. Section 19. Repealer. Ordinance Nos. 1796 §3 (part), 1775 §2 (part), and 1758 §1 (part), as codified at Tukwila Municipal Code Chapter 18.44, are hereby repealed. Section 20. Codification Clarification. Due to amendments to TMC Chapter 18.44 as stated in this ordinance, a TMC section formerly numbered 18.44.170 no longer exists. Section 21. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 22. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force upon approval of the Shoreline Master Program by the Washington State Department of Ecology and publication as provided by law. W: Word Processing \Ordinances \SMP Amending shoreline regulations repeal Ord 2271 final 8 -15 -11 100 CL:bjs Page 78 of 79 PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTH E NTI CATE D: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \SMP Amending shoreline regulations- repeal Ord 2271 final 8 -15 -11 CL:bjs Page 79 of 79 101 102 City of Tukwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NO. 2272; AMENDING ORDINANCE NO. 1758 §1 (PART); ADOPTING AND AMENDING DEFINITIONS FOR SHORELINE REGULATIONS, AS CODIFIED IN CHAPTER 18.06 OF THE TUKWILA MUNICIPAL CODE, TO INCORPORATE NEW STATE REQUIREMENTS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a new Comprehensive Plan in 1995 to implement the goals and policies of the Growth Management Act of 1990 and the King County County- wide Planning Policies; and WHEREAS, the Green /Duwamish River, a shoreline of the State regulated pursuant to RCW 90.58, runs through the entire length of the City of Tukwila; and WHEREAS, due to the presence of the Green River in the City, the 1995 Comprehensive Plan included policies addressing shorelines; and WHEREAS, as set forth in RCW 90.58:020, the State Legislature has found that shorelines of the State are among the most valuable and fragile of its natural resources and unrestricted construction on privately- and publicly -owned shorelines of the State is not in the best public interest; and WHEREAS, in RCW 90.58.020 the State Legislature directed local governments developing Shoreline Master Programs for shorelines of State -wide significance to give preference to the following uses, in. order of preference, which: 1) recognize and protect the State -wide interest over local interest; 2) preserve the natural character of the shoreline; 3) result in long -term over short -term benefit; 4) protect the resources and ecology of the shoreline; 5) increase public access to publicly -owned areas of shore- lines; 6) increase recreational opportunities for the public in the shoreline; and 7) provide for any other element, as defined in RCW 90.58.100, deemed appropriate or necessary, and W: Word Processing \Ordinances \SMP Update definitions- repeal Ord 2272 final 8 -15 -11 CL:bjs Page 1 of 16 103 WHEREAS, in 2003 the Washington State Department of Ecology (DOE) adopted new rules, pursuant to RCW 90.58.200, to carry out provisions of the Shoreline Management Act; and WHEREAS, DOE's new rules are set forth in WAC 173 -26, and these new rules provide direction to local jurisdictions concerning the regulation of uses on shorelines of the State; and WHEREAS, RCW 90.58.080 directs local governments to develop or amend their shoreline master programs consistent with the required elements of the guidelines adopted by DOE, in accordance with a schedule established in that section; and WHEREAS, the timetable set forth in RCW 90.58.080(2)(a)(ii) required the City of Tukwila to amend its Shoreline Master Program by December 1, 2009; and WHEREAS, the City began an update of its Shoreline Master Program in 1998, established a Citizens Advisory Panel for initial policy and regulation guidance, prepared background studies and used consultant services to prepare technical documents; and WHEREAS, the City renewed and continued its updating of the Shoreline Master Program in 2008; and WHEREAS, an environmental checklist was prepared for the staff draft Shoreline Master Program update, accompanied by a draft "Cumulative Impacts Analysis," an "Inventory and Characterization Report" and draft "Restoration Plan," and a Determination of Non Significance was issued August 13, 2008; and WHEREAS, the Planning Commission reviewed a staff draft Shoreline Master Program, held a public hearing on August 27, 2008, continued the hearing to October 9, 2008 to allow additional public input, and recommended adoption of a revised Shoreline Master Program to the City Council in February 2009; and WHEREAS, the City Council held a public hearing on April 20, 2009, continued the hearing to July 13, 2009 and July 20, 2009 and conducted ten in -depth work sessions to review the Planning Commission Recommended Draft Shoreline Master Program; and WHEREAS, pursuant to WAC 173 -26 -186, City staff has analyzed the cumulative impacts of the staff draft Shoreline Master Program, the Planning Commission Recommended Draft Shoreline Master Program, and the Council revisions to the Planning Commission Recommended Draft Shoreline Master Program and determined that the Shoreline Master Program and accompanying goals, policies and regulations will achieve no net loss of shoreline ecological functions, as compared to current "baseline" conditions; and W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 104 CL:bjs Page 2 of 16 WHEREAS, pursuant to WAC 173 -26 -186, the proposed Shoreline Master Program contains policies and regulations to ensure no net loss of shoreline ecological functions, to address adverse cumulative impacts and to fairly allocate the burden of addressing cumulative impacts among proposed developments; and WHEREAS, the City Council reviewed written and verbal testimony and approved revisions to the Planning Commission Recommended Draft Shoreline Master Program to address issues raised by interested parties, individual Councilmembers, staff and the Department of Ecology; and WHEREAS, throughout the process of updating the Shoreline Master Program, a variety of methods were used to notify the general public and property owners along the shoreline of the proposed Shoreline Master Program update, including mailings to property owners and tenants, notice boards along the Green River Trail, postings on the City's web site, creation of a broadcast email group that received updates of the shoreline review process and articles in the City's newsletter; and WHEREAS, on December 14, 2009, the City Council adopted several ordinances that adopted by reference the components of a new Shoreline Master Program; and WHEREAS, those ordinances included Ordinance No. 2272, which amended definitions pertaining to the shoreline in Chapter 18.06 of the Tukwila Municipal Code; and WHEREAS, Section 48 of Ordinance No. 2272 provided that it would not be effective until the later of five days after passage and publication or approval by the Washington State Department of Ecology of the Shoreline Master Program; and WHEREAS, the City thereafter submitted Ordinance No. 2272 to the Department of Ecology for review and approval; and WHEREAS, the Department of Ecology accepted written public comments on the City's December 14, 2009 Shoreline Master Program, and held a public hearing on September 29, 2010; and WHEREAS, the Department of Ecology reviewed the adopted Shoreline Master Program and required and recommended certain changes to the Program before it can receive final state approval; and WHEREAS, notice of the review of DOE's required and recommended changes was provided via postings on the City's web site, e -mails to the broadcast e-mail group, and articles in the "Hazelnut" and "Tukwila Reporter;" and WHEREAS, the City Council conducted a work session on May 11, 2011, to consider the DOE required and recommended changes, and held a public hearing on June 27, 2011 to receive public testimony on the DOE required and recommended changes; and W: Word Processing \Ordinances \SMP Update definitions- repeal Ord 2272 final 8 -15 -11 CL:bjs Page 3 of 16 105 WHEREAS, the City Council concurs with and desires to adopt the Department of Ecology's required changes and some of its recommended changes; and WHEREAS, the updated Shoreline Master Program will be implemented by revised shoreline regulations, codified in Tukwila Municipal Code (TMC) Chapter 18.44; and WHEREAS, new and revised Zoning Code definitions, codified in Chapter 18.06 of the Tukwila Municipal Code, are required to implement the changes to TMC Chapter 18.44 and the updated Shoreline Master Program; and WHEREAS, notice was provided to the Washington State Department of Commerce pursuant to RCW 36.70A.106; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Appurtenance" means a structure that is necessarily connected to the use and enjoyment of a single family residence, including a garage, deck, driveway, utilities, fences, installation of a septic tank and drain field and grading that does not exceed 250 cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark (WAC 173 -27 -040 (2) (g)). Section 2. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Armoring" means the control of shoreline erosion with hardened structures, such as bulkheads, sea walls, and riprap. Section 3. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Bank" means the rising ground bordering a water body and forming an edge or slope. Section 4. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Bioengineering" means integrating living woody and herbaceous materials with organic (plants, wood, jute mats, coir logs, etc) and inorganic materials (rocks, soils) to increase the strength and structure of the soil along a riverbank, accomplished by a dense matrix of roots that hold the soil together. The above ground vegetation increases the resistance to flow and reduces flow velocities by dissipating energy. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 106 cL:bjs Page 4 of 16 Section 5. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Bulkhead" means vertical structures erected parallel to and near the ordinary high water mark for the purpose of protecting adjacent uplands from erosion from the action of waves or currents. Section 6. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Channel migration zone" means the area along a river within which the channel(s) can be reasonably predicted to migrate over time as a result of natural and normally occurring hydrological and related processes when considered with the characteristics of the river and its surroundings. Section 7. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Dike" means an embankment or structure built in the river channel to contain or redirect flow within the channel and prevent shoreline destabilization. Section 8. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Development, shoreline" means, when conducted within the Shoreline Jurisdiction on shorelands or shoreland areas as defined herein, a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; construction of bulkheads; driving of piling; placing of obstructions; or any project of a permanent or temporary nature that interferes with the normal public use of the waters overlying lands subject to the Shoreline Management Act at any stage of water level. Section 9. Definition Added.. A new definition is added to TMC Chapter 18.06 to read as follows: "Ecological /ecosystem functions (or shoreline functions)" means the work performed or role played by the physical, chemical, and biological processes that contribute to the maintenance of the aquatic and terrestrial environments that constitute the shoreline's natural ecosystem. See WAC 173 -26 -200 (2)(c). Section 10. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Ecosystem -wide processes" means the suite of naturally occurring physical and geologic processes of erosion, transport, and deposition; and specific chemical processes that shape landforms within a specific shoreline ecosystem and determine both the types of habitat and the associated ecological functions. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 CL:bjs Page 5 of 16 107 Section 11. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Environment designation" means the term used to describe the character of the shoreline in Tukwila based upon the recommended classification system established by WAC 173 -26 -211 and as further refined by Tukwila's Shoreline Master Program (SMP). Section 12. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Feasible" means, for the purpose of the Shoreline Master Program, that an action such as a development project, mitigation, or preservation requirement, meets all of the following conditions: 1. The action can be accomplished with technologies and methods that have been used in the past in similar circumstances, or studies or tests have demonstrated in similar circumstances that such approaches are currently available and likely to achieve the intended results; 2. The action provides a reasonable likelihood of achieving its intended purpose; and 3. The action does not physically preclude achieving the project's primary intended legal use. In cases where these guidelines require certain actions unless they are infeasible, the burden of proving infeasibility is on the applicant. In determining an action's infeasibility, the reviewing agency may weigh the action's relative public costs and public benefits, considered in the short- and long -term time frames. Section 13. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Flood plain" means that land area susceptible to inundation with a one percent chance of being equaled or exceeded in any given year (synonymous with 100 -year flood plain). The limit of this area shall be based upon flood ordinance regulation maps or a reasonable method that meets the objectives of the Shoreline Management Act. Section 14. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Flood hazard reduction" means actions taken to reduce flood damage or hazards. Flood hazard reduction measures may consist of nonstructural or indirect measures, such as setbacks, land use controls, wetland restoration, dike removal, use relocation, bioengineering measures, and storm water management programs; and of structural measures such as dikes and levees intended to contain flow within the channel, channel realignment, and elevation of structures consistent with the National Flood Insurance Program. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 108 CL:bjs Page 6 of 16 Section 15. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. Section 16. Definition Amended. Ordinance 1758 §1 (part), as codified in TMC Chapter 18.06, "Definitions," at TMC Section 18.06.370, "Grading is amended to read as follows: 18.06.370 Grading "Grading" means activity that results in change of the cover or topography of the earth, or any activity that may cause erosion, including clearing, excavation, filling and stockpiling. Section 17. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Large Woody Debris (LWD)" means whole trees with root wads and limbs attached, cut logs at least 4 inches in diameter along most of their length, root wads at least 6.5 feet long and 8 inches in diameter. Large woody debris is installed to address a deficiency of habitat and natural channel forming processes. Section 18. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Levee" means a broad embankment of earth built parallel with the river channel to contain flow within the channel and prevent flooding from a designated design storm. Section 19. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Levee, Minimum Profile" means the minimum levee profile for any new or reconstructed levees is the King County "Briscoe Levee" profile -2.5:1 overall slope with 15 -foot mid -slope bench for maintenance access and native vegetation plantings. Section 20. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Mean Higher High Water (MHHW)" means the average of the higher high water height of each tidal day, and used in determining the ordinary high water mark for the tidally influenced portions of the river. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 CL:bjs Page 7 of 16 109 Section 21. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Native Vegetation" means vegetation with a genetic origin of Western Washington, Northern Oregon and Southern British Columbia, not including cultivars. Section 22. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "No Net Loss" means a standard intended to ensure that shoreline development or uses, whether permitted or exempt, are located and designed to avoid loss or degradation of shoreline ecological functions that are necessary to sustain shoreline natural resources. Section 23. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Nonconforming use, shoreline" means a use or development that was lawfully constructed or established prior to the effective date of the Shoreline Management Act or the Shoreline Master Program or amendments thereto, but which does not conform to present regulations or standards of the program. Section 24. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Non- water- oriented uses" means those uses that are not water dependent, water related, or water enjoyment. Section 25. Definition Amended. Ordinance 1758 §1 (part), as codified in TMC Chapter 18.06, "Definitions," at TMC Section 18.06.605, "Ordinary High Water Mark is amended to read as follows: 18.06.605 Ordinary High Water Mark "Ordinary High Water Mark" means the mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters (all lakes, streams, and tidal water) are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the Department of Ecology. In any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 110 CL:bjs Page 8 of 16 Section 26. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Overwater Structure" means any device or structure projecting over the ordinary high water mark, including, but not limited to bridges, boat lifts, wharves, piers, docks, ramps, floats or buoys. Section 27. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Public Access" means the ability of the general public to reach, touch or enjoy the water's edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. Public access may be provided by an owner by easement, covenant, or similar legal agreement of substantial walkways, corridors, parks, or other areas serving as a means of view and /or physical approach to public waters. The Director may approve limiting public access as to hours of availability, types of activity permitted, location and area. Section 28. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Regional Detention Facility" means a stormwater detention and /or retention facility that accepts flow from multiple parcels and /or public right -of -way. The facility may be public or private. Section 29. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Revetment" means a sloping structure built to increase bank strength and protect an embankment or shore against erosion by waves or river currents. A revetment is usually built of rock rip -rap, wood, or poured concrete. One or more filter layers of smaller rock or filter cloth and "toe" protection are included. A revetment typically slopes and has a rough or jagged face. The slope differentiates it from a bulkhead, which is a vertical structure. Section 30. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Riparian" means the land along the margins of rivers and streams. Section 31. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Riverbank analysis and report" means a scientific study or evaluation conducted by qualified experts and the resulting report to evaluate the ground and /or surface hydrology and geology, the geomorphology and hydraulic characteristics of the river, the affected land form and its susceptibility to mass wasting, erosion, scouring and other geologic hazards or fluvial processes. The report shall include conclusions and W: Word Processing \Ordinances \SMP Update definitions- repeal Ord 2272 final 8 -15 -11 CL:bjs Page 9 of 16 111 recommendations regarding the effect of the proposed development on geologic and /or hydraulic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development, and measures to mitigate potential site specific and cumulative geological, hydrological and hydraulic impacts of the proposed development, including the potential adverse impacts to adjacent and down- current properties. Geotechnical /hydrological /hydraulic reports shall conform to accepted technical standards and must be prepared by qualified professional engineers or geologists who have professional expertise about the regional and local shoreline geology and processes. Section 32. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shorelands or shoreland areas" means those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous flood plain areas landward 200 feet from such floodways; and all wetlands and river deltas associated with the streams, lakes and tidal waters that are subject to the provisions of the Shoreline Management Act. Section 33. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shoreline areas" means all "shorelines of the state" and "shorelands" as defined in RCW 90.58.030. Section 34. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shoreline Jurisdiction" means the channel of the Green /Duwamish River, its banks, the upland area which extends from the ordinary high water mark landward for 200 horizontal feet on each side of the river, floodways and all associated wetlands within its 100 -year flood plain. For the purpose of determining shoreline jurisdiction only, the floodway shall not include those lands that have historically been protected by flood control devices and therefore have not been subject to flooding with reasonable regularity. Section 35. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shoreline modifications" means those actions that modify the physical configuration or qualities of the shoreline area, through the construction or alteration of a physical element such as a dike, breakwater, pier, weir, dredged basin, fill, bulkhead, or other shoreline structure. "Shoreline modifications" may also include other actions, such as clearing, grading, or application of chemicals. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 112 CL:bjs Page 10 of 16 Section 36. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shoreline restoration or ecological restoration" means the re- establishment or upgrading of impaired ecological shoreline processes, functions or habitats, including any project that is approved by the Federal, State, King County, or City government or the WRIA 9 Steering Committee, is intended to provide habitat restoration and where the future use of the site is restricted through a deed restriction to prohibit non habitat uses. This may be accomplished through measures including, but not limited to, re- vegetation, removal of intrusive shoreline structures and removal or treatment of toxic materials. Restoration does not imply a requirement for returning the shoreline area to aboriginal or pre- European settlement conditions. Section 37. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Shoreline Stabilization" means actions taken to protect riverbanks or adjacent uplands from erosion resulting from the action of waves or river currents. "Hard" structural stabilization includes levees, bulkheads and revetments. "Soft" shoreline stabilization includes use of bioengineering measures where vegetation, logs, and /or certain types of rock is used to address erosion control and /or slope stability. Section 38. Definition Deleted. Ordinance No. 1758 §1 (part), as codified in TMC Chapter 18.06, "Definitions," at TMC Section 18.06.765, "Shoreline zone," is deleted. Section 39. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Significant Tree, Shoreline" means a single trunked tree that is 4 inches or more in diameter at a height of 4 feet above the ground or a multi trunked tree with a diameter of 2 inches or more (such as willows or vine maple). Section 40. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Significant vegetation removal" means the removal or alteration of trees, shrubs, and /or ground cover by clearing, grading, cutting, burning, chemical means, or other activity that causes significant ecological impacts to functions provided by such vegetation. The removal of invasive or noxious weeds does not constitute significant vegetation removal. Tree pruning, not including tree topping, where it does not affect ecological functions, does not constitute significant vegetation removal. Section 41. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Substantial development" means any development of which the total cost or fair market value exceeds $5,000.00 or any development that materially interferes with the normal public use of the water or shorelines of the state. The dollar threshold W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 CL:bjs Page 11 of 16 113 established in this definition must be adjusted for inflation by the Office of Financial Management every five years, beginning July 1, 2007, based upon changes in the Consumer Price Index during that time period. "Consumer Price Index" means, for any calendar year, that year's annual average Consumer Price Index, Seattle, Washington area, for urban wage earners and clerical workers, all items, compiled by the Bureau of Labor and Statistics, United States Department of Labor. The following shall not be considered substantial developments for the purpose of the Shoreline Management Act, but are not exempt from complying with the substantive requirements of this Shoreline Master Program: 1. Normal maintenance or repair of existing structures or developments, including repair of damage caused by accident, fire, or elements. 2. Emergency construction necessary to protect property from damage by the elements. 3. Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels. A feedlot of any size, all processing plants, other activities of a commercial nature, and alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and /or grazing, nor shall it include normal livestock wintering operations. 4. Construction or modification of navigational aids such as channel markers and anchor buoys. 5. Construction on shorelands by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his or her family, which residence does not exceed a height of 35 feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter. 6. Construction of a dock, including a community dock, designed for pleasure craft only, for the private non commercial use of the owner, lessee, or contract purchaser of single and multiple family residences. This exception applies if either: $2,500; or (a) In salt waters, the fair market value of the dock does not exceed (b) in fresh waters, the fair market value of the dock does not exceed $10,000, but if subsequent construction having a fair market value exceeding $2,500 occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this chapter. W: Word Processing \Ordinances \SMP Update definitions- repeal Ord 2272 final 8 -15 -11 114 CL:bjs Page 12 of 16 7. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored groundwater for the irrigation of lands. 8. The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water. 9. Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system. 10. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if: a. The activity does not interfere with the normal public use of the surface waters; b. The activity will have no significant adverse impact on the environment including, but not limited to, fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values; c. The activity does not involve the installation of a structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity; d. A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure the site is restored to preexisting conditions; and e. The activity is not subject to the permit requirements of RCW 90.58.550 (Oil and Natural Gas exploration in marine waters). 11. The process of removing or controlling an aquatic noxious weed, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the department jointly with other state agencies under chapter 43.21 C RCW. 12. Watershed restoration projects, which means a public or private project authorized by the sponsor of a watershed restoration plan that implements the plan or a part of the plan and consists of one or more of the following activities: a. A project that involves less than 10 miles of stream reach, in which less than 25 cubic yards of sand, gravel, or soil is removed, imported, disturbed or discharged, and in which no existing vegetation is removed except as minimally necessary to facilitate additional plantings. b. A project for the restoration of an eroded or unstable stream bank that employs the principles of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water. W: Word Processing\Ord in ances\SMP-Upd ate definitions repeal Ord 2272 final 8 -15 -11 CL:bjs Page 13 of 16 115 c. A project primarily designed to improve fish and wildlife habitat, remove or reduce impediments to migration of fish, or enhance the fishery resource available for use by all of the citizen of the state, provided that any structure, other than a bridge or culvert or instream habitat enhancement structure associated with the project, is less than 200 square feet in floor area and is located above the ordinary high water mark of the stream. 13. Watershed restoration plan, which means a plan, developed or sponsored by the Department of Fish and Wildlife, the Department of Ecology, the Department of Natural Resources, the Department of Transportation, a federally recognized Indian tribe acting within and pursuant to its authority, a city, a county or a conservation district that provides a general program and implementation measures or actions for the preservation, restoration, re- creation, or enhancement of the natural resources, character, and ecology of a stream, stream segment, drainage area or watershed for which agency and public review has been conducted pursuant to the State Environmental Policy Act. 14. A public or private project that is designed to improve fish or wildlife habitat or fish passage, when all of the following apply: a. The project has been approved in writing by the Department of Fish and Wildlife; b. The project has received hydraulic project approval by the Department of Fish and Wildlife pursuant to chapter 77.55 RCW; and c. The local government has determined the project is substantially consistent with the local shoreline master program. The local government shall make such determination in a timely manner and provide it by letter to the project proponent. Additional criteria for determining eligibility of fish habitat projects are found in WAC 173 -27 -040 2 (p) and apply to this exemption. Section 42. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Water dependent" means a use or portion of a use that cannot exist in a location that is not adjacent to the water and that is dependent on the water by reason of the intrinsic nature of its operations. Examples of water dependent uses include ship cargo terminal loading areas, marinas, ship building and dry docking, float plane facilities, sewer outfalls, and shoreline ecological restoration projects. Section 43. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Water enjoyment" means a recreational use or other use that facilitates public access to the shoreline as a primary characteristic of the use. The use must be open to the general public and the shoreline- oriented space within the project must be devoted to the specific aspects of the use that fosters shoreline enjoyment. Examples of water- W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 116 CL:bjs Page 14 of 16 enjoyment uses include parks, piers, museums, restaurants, educational /scientific reserves, resorts and mixed use projects. Section 44. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Water oriented" means a use that is water dependent, water related or water enjoyment or a combination of such uses. Section 45. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "Water related" means a use or portion of a use that is not intrinsically dependent on a waterfront location but whose economic viability is dependent upon a waterfront location because: a. The use has a functional requirement for a waterfront location such as the arrival or shipment of materials by water or the need for large quantities of water; or b. The use provides a necessary service supportive of the water dependent uses and the proximity of the use to its customers makes its services less expensive and /or more convenient. Examples of water related uses are warehousing of goods transported by water, seafood processing plants, hydroelectric generating plants, gravel storage when transported by barge, and log storage or oil refineries where transport is by tanker. Section 46. Definition Added. A new definition is added to TMC Chapter 18.06 to read as follows: "WRIA" means Water Resource Inventory Area —river basin planning and management areas formalized under Washington Administrative Code (WAC) 173 -500- 04 and authorized under the Water Resources Act of 1971, Revised Code of Washington (RCW) 90.54. WRIA 9 refers to the Green /Duwamish River Basin within which Tukwila is located. Section 47. Repealer. Ordinance No. 2272 is hereby repealed. Section 48. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 49. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force upon approval of the Shoreline Master Program by the Washington State Department of Ecology and publication as provided by law. W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 CL:bjs Page 15 of 16 117 PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \SMP Update definitions repeal Ord 2272 final 8 -15 -11 118 CL:bjs Page 16 of 16 s a) ca a� U) Printed May 2011 1 =400' Location of OHWM, wetland sizes locations are approximate only. Watercourses shown on this map have not been surveyed. 119 City of Tukwila Shoreline Environment Designations NE Qua 04 See Page 4 See Page 8 Ordinary High Water Mark U Aquatic Environment o o ooType 2 Stream (100' Buffer) High Intensity -100' Buffer o Type 2 Stream in Pipe High Intensity Outside Buffer Type 3 Stream (80' Buffer) Urban Conservancy Levee -125' Buffer Type 3 Stream in Pipe Urban Conservancy Levee Outside Buffer Type 4 Stream (50' Buffer) Urban Conservancy No Levee -100' Buffer Type 4 Stream in Pipe Urban Conservancy No Levee Outside Buffer LLA Fish and Wildlife Habitat Areas (100' Buffer) Shoreline Residential Min. 50' Buffer LULA Potential Wetlands Shoreline Residential Outside Buffer Category 11 Wetland (100' Buffer) Tukwila City Limits IM Category III Wetland (80' Buffer) `Potential Annexation Area MI Category IV Wetland (50' Buffer) Printed May 2011 1 =400' Location of OHWM, wetland sizes locations are approximate only. Watercourses shown on this map have not been surveyed. 119 City of Tukwila Shoreline Environment Designations NE Qua 04 See Page 4 120 COUNCIL AGENDA SYNOPSIS Initials ITEM NO. Meeting Date Prepared by Mayor' review Council review 08/08/11 KAM "IE- 08/15/11 KM 6. C. ITEM INFORMATION CAS NUMBER: 11-079 I ORIGINAL AGENDA DATE: AUGUST 8, 2011 AGi;NDA ITEM Trr1..E Advisory Vote regarding social card rooms for November 8, 2011 General Election CA'I'1 GORY ®Discussion E] Motion ki Resolution E] Ordinance ❑BidAavard ❑Public Hearing Other Mtg Date 08108111 Mt Date Mtg Date8/ 15/ 1:'�Mtg Date Mtg Date Mtg Date Mtg Date SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal P&'R Police PA% SPONSOR'S Per discussion under Miscellaneous at the July 18, 2011, Regular Council meeting, this SUMMARY item has been placed on the agenda for further Council discussion. Specifically, it includes the discussion of consideration of placing an advisory ballot measure on the November 8, 2011, General Election relative to social card rooms. R!VIE \V ID BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: RECOMMENDATIONS: SPONSOR /ADMIN. Council President C0MMI'1"rEE COST IMPACT FUND SOURCE EYPI;NDITUR.E RI'QUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: MTG. DATE j RECORD OF COUNCIL ACTION 8/8/11 IForward to next Regular Meeting with Resolution to place an Advisory vo on November is b a l l o t MTG. DATE j ATTACHMENTS 8/8/11 1 Informational Memorandum dated 8/4/11 121 122 City of Tukwila Washington Resolution No. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ESTABLISHING NOVEMBER 8, 2011, AS THE DATE FOR AN ADVISORY ELECTION ON THE QUESTION OF WHETHER THE CITY COUNCIL SHOULD ALLOW LICENSED GAMBLING IN THE FORM OF THE OPERATION OF SOCIAL CARD ROOMS WITHIN THE TUKWILA CITY LIMITS. WHEREAS, on February 22, 2011, the City Council of the City of Tukwila, Washington, passed Ordinance No. 2323, which prohibits social card rooms in the City effective January 1, 2016; and WHEREAS, the City Council has heard and considered many differing opinions from City residents as to whether social card rooms should be allowed or prohibited within the Tukwila city limits; and WHEREAS, the City Council wishes to provide an opportunity for all voters within the City to express their opinions regarding social card rooms; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. An election shall be held within the City of Tukwila on Tuesday, November 8, 2011, for the purpose of submitting to the qualified electors of the City the question as to whether or not licensed social card rooms should be allowed to operate in the City of Tukwila. Section 2. The results of this election are advisory in nature and may assist the City Council in considering legislation related to social card rooms. Section 3. The Director of Records and Elections of King County, Washington, is requested to conduct this election on the November 8, 2011 ballot. W: \Word Processing \Resolutions \Social card rooms advisory election 8 -10 -11 SK:bjs Page 1 of 2 123 Section 4. The City Clerk is directed to certify to the Director of Records and Elections of King County, Washington, by a date no later than August 16, 2011, a copy of this resolution and the proposition to be submitted at that election in the form of a ballot title as follows: ADVISORY MEASURE NO. XXXX LICENSED CARD ROOMS IN THE CITY OF TUKWILA Tukwila Resolution No. 1745 submits the following question to the voters of the City of Tukwila regarding social card rooms in the City: Should gambling in the form of social card rooms be allowed in Tukwila? Yes No PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 1 2011. ATTEST /AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk Allan Ekberg, Council President APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Resolution Number: Shelley M. Kerslake, City Attorney W: \Word Processing \Resolutions \Social card rooms advisory election 8 -10 -11 SK:bjs Page 2 of 2 124 COUNCIL AGENDA SYNOPSIS Initials ITEM NO. Meetin Date Prepared by Mayor's_yrevieu I CounEil revienr 08/15/11 1 JP Air I U-/ 1 10/03/11 JP 7 ITEM INFORMATION CAS NUMBER: 11-081 I STAFF SPONSOR: JACK PACE ORIGINAI.AGENDA DATE: 8/15/11 AGENDA ITEM Trmj Moratorium on medical cannabis collective gardens and dispensaries CATEGORY N Discussion Motion Resolution N Ordinance BidAwatd N Public Hearing Other Mtg Date 8/15/11 Mtg Date Mtg Date Mtg Date 8/15/11 Mtg Date Mtg Date 1013111 Mtg Date I SPONSOR Council Mayor HR N DCD Finance Fire IT P&'R Police PII SPONSOR'S Recent amendments to RCW 69.51A, the medical marijuana law, now allow "collective SUMMARY gardens However portions of the law were vetoed by the Governor and possession and distribution of cannabis remain a violation of federal law. Given the contradictory legal framework and the lack of clarity in RCW 69.51A the City needs additional time to study the issue and analyze the impacts. The Council is being asked to approve this emergency ordinance and schedule a public hearing for October 3, 2011. RE /IE\wI;D BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: N/A COMMITTEE CHAIR: RECOMMENDATIONS: SPONSOR /ADMIN. Department of Community Development COMMIT 'TEE None emergency action COST IMPACT FUND SOURCE EXPENDITURE REOUIRF_D AMOUNT BUDGETED APPROPRIATION REQUIRED $0 Fund Source: Comments: No direct expenses are expected, work plan will be performed with existing staff MTG. DATE 1 RECORD OF COUNCIL ACTION 8/15/11 MTG. DATE I ATTACHMENTS 8/15/11 Informational Memorandum dated 8/8/11 Moratorium Ordinance WCIA Risk Management Bulletin 125 126 City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Tukwila City Council FROM: Jack Pace, Community Development Director DATE: August 8, 2011 SUBJECT: Moratorium on Medical Cannabis Collective Gardens and Dispensaries ISSUE Should a moratorium on medical cannabis collective gardens and dispensaries be enacted? BACKGROUND The voters of Washington State passed initiative Measure No. 692 on November 30, 1998 allowing for the medical use of marijuana (cannabis). This has been codified as RCW Ch. 69.51A and created a limited defense to charges under state, not federal, law if the person charged can demonstrate that he or she was a qualifying patient or designated provider. In 2007, the state legislature amended the law, and again in 2011, the state legislature passed a third amendment to the law, portions of which the Governor vetoed. The newly amended law took effect on July 22, 2011. These recent amendments to RCW 69.51A change the scope and effect of the law affecting the rights of qualifying patients and their designated providers. The law now allows "collective gardens" that provide for growing and cultivating up to 45 plants to serve no more than 10 qualifying patients. The new law, however, clearly delegates to cities the authority to implement zoning requirements, business licensing requirements, health and safety requirements, and business taxes as those requirements and taxes relate to the production, processing, or dispensing of medical marijuana. In particular, local regulations could address ambiguities concerning the location and operation of collective gardens, and ensure that provisions related to designated providers are not used to establish a de facto dispensary when the authority for such uses was vetoed. Despite this legislation the possession or distribution of cannabis has been and continues to be a violation of state law pursuant to RCW 69.50 (Washington's Uniform Controlled Substances Act), and federal law, through the Controlled Substances Act "CSA Washington's two U.S. Attorneys state that marijuana is a Schedule I controlled substance under federal law and, as such, "growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities." These U.S. Attorneys also concluded, "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA." 127 INFORMATIONAL MEMO Page 2 DISCUSSION The Washington Cities Insurance Authority (WCIA) has issued an update to its earlier risk management bulletin emphasizing the need for cities to proceed cautiously in this uncharted area, see Attachment 2. Given the contradictory legal framework and the lack of clarity in RCW 69.51A the City of Tukwila needs additional time to study the issue and analyze the impacts of allowing these uses and facilities in residential zones as well as impacts arising from the proximity of these uses and facilities to schools, daycares, parks, religious and cultural facilities, jails and courthouses. Establishing a moratorium on these uses would allow the City time to perform this analysis and develop a legally sound approach to the issue. Within 60 days of adoption of the moratorium the City is required to hold a public hearing. RECOMMENDATION The Council is being asked to approve this ordinance for a 12 -month period, which will become effective immediately, at the August 15, 2011 Regular Meeting. A public hearing will be conducted on October 3, 2011. ATTACHMENTS Moratorium Ordinance WCIA Risk Management Bulletin WA2011 Info Memos \MarijuanaCollectiveGardens.doc 128 City of TUkwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ADOPTING A 12 -MONTH MORATORIUM WITHIN THE CITY OF TUKWILA ON THE ESTABLISHMENT, LOCATION, OPERATION, LICENSING, MAINTENANCE OR CONTINUATION OF MEDICAL CANNABIS COLLECTIVE GARDENS OR DISPENSARIES, ASSERTED TO BE AUTHORIZED OR ACTUALLY AUTHORIZED UNDER E2SSB 5073, CHAPTER 181, LAWS OF 2011, CHAPTER 69.51A REVISED CODE OF WASHINGTON, OR ANY OTHER LAWS OF THE STATE OF WASHINGTON; SETTING A DATE FOR A PUBLIC HEARING ON THE MORATORIUM; PROVIDING FOR SEVERABILITY; AND DECLARING AN EMERGENCY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the possession or distribution of cannabis (marijuana) has been and continues to be a violation of state law pursuant to Chapter 69.50 Revised Code of Washington (Washington's Uniform Controlled Substances Act), and federal law, through the Controlled Substances Act "CSA" and WHEREAS, Initiative Measure No. 692, approved by the voters of Washington State on November 30, 1998, and now codified as Chapter 69.51A RCW, created a limited defense to marijuana charges under state, not federal, law if the person charged could demonstrate that he or she was a qualifying patient or designated provider as those terms are defined in Ch. 69.51A RCW; and in 2007, the state legislature amended the law; and in 2011 the state legislature passed a third amendment to the law, E2SSB 5073, Chapter 181, Laws of 2011, portions of which the Governor vetoed, and the newly amended law took effect on July 22, 2011; and WHEREAS, prior to issuing her partial veto, the Governor received a letter signed by Washington's two U.S. Attorneys, Michael Ormsby and Jennifer Durkan, and in their letter they wrote that marijuana is a Schedule I controlled substance under federal law and, as such, "growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities;" and these U.S. Attorneys also concluded, "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA and W: Word Processing \Ordinances \Moratorium on marijuana collective gardens 8 -10 -11 NG:bjs Page 1 of 5 Mt WHEREAS, because the Governor vetoed 36 of the 58 sections of the legislature's bill amending Chapter 69.51A RCW, the law, in its final form, understandably has inconsistencies and ambiguities; for example, certain sections that were not vetoed make reference to other sections that were vetoed; and WHEREAS, the recent amendments to Chapter 69.51A RCW change the scope and effect of the law, including new sections that affect the rights of qualifying patients and their designated providers; and the law now allows "collective gardens" that provide for growing and cultivating up to 45 plants to serve no more than 10 qualifying patients, and provides other changes to the rights and responsibilities of medical marijuana patients and their designated providers; and WHEREAS, the new law, however, clearly delegates to cities the authority to implement zoning requirements, business licensing requirements, health and safety requirements, and business taxes as those requirements and taxes relate to the production, processing, or dispensing of medical marijuana; and in particular, local regulations could address ambiguities concerning the location and operation of collective gardens, and ensure that provisions related to designated providers are not used to establish a de facto dispensary when the authority for such uses was vetoed; and WHEREAS, the City Council requires time to conduct appropriate research to understand the extent of the changes provided in the new law, to analyze impacts and potential liabilities under federal law, and to determine an appropriate regulatory framework for any new uses that are allowed under these laws; and WHEREAS, the City must ensure that proposed locations for these operations are appropriate and that any potential secondary impacts arising from the operation of these uses or facilities are minimized and mitigated; and these secondary impacts may include, but are not limited to, burglaries associated with the cash and marijuana maintained on the site, or an increase of other illegal activities, such as drug use, within the vicinity of these dispensaries; and WHEREAS, in particular, and without limitation, staff should analyze the impacts of allowing these uses and facilities in residential zones as well as impacts arising from the proximity of these uses and facilities to schools, daycares, parks, religious and cultural facilities, jails and courthouses; and accordingly, the City Council finds that a zoning, licensing, and permitting moratorium should be established pending local review of appropriate locations and design requirements of these operations and impacts of the newly amended law and its interaction with federal law; and WHEREAS, although the City Council determines that a moratorium is necessary for the reasons established above, the City Council emphasizes that it understands the needs of persons suffering from debilitating or terminal conditions, as well as the benefits that approved medical use of marijuana may provide these persons; nevertheless, given the complex legal and regulatory framework surrounding this issue, a moratorium remains necessary until the City Council can adequately address the competing interests at play; W: Word Processing \Ordinances \Moratorium on marijuana collective gardens 8 -10 -11 130 NG:bjs Page 2 of 5 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Preliminary Findings. The recitals and findings set forth above are hereby adopted as the City Council's preliminary findings in support of the moratorium imposed by this ordinance. The City Council may, in its discretion, adopt additional findings at the conclusion of the public hearing referenced in Section 6 below. Section 2. Moratorium Imposed. Pursuant to the provisions of Article 11, Section 11 of the Washington State Constitution, RCW 35A.63.220, and RCW 36.70A.390, a moratorium is hereby enacted prohibiting within the City of Tukwila, the establishment, location, operation, licensing, maintenance, or continuation of any medical cannabis collective garden or any medical marijuana dispensary, whether for profit or not for profit, asserted to be authorized or actually authorized under E2SSB 5073, Chapter 181, Laws of 2011, Chapter 69.51A RCW, or any other laws of the state of Washington. No building permit, occupancy permit, or other development permit or approval shall be issued for any of the purposes or activities listed above, and no business license shall be granted or accepted while this moratorium is in effect. Any land use permits, business licenses or other permits for any of these operations that are issued as a result of error or by use of vague or deceptive descriptions during the moratorium are null and void and without legal force or effect. Section 3. Definitions. As used in this ordinance, the following terms have the meanings set forth below: A. "Medical marijuana dispensary" means any business, agency, organization, cooperative, network, consultation operation, or other group or person, no matter how described or defined, including its associated premises and equipment, which has for its purpose or which is used to grow, select, measure, package, label, deliver, sell, or otherwise transfer (for consideration or otherwise) marijuana for medical use. One individual person who is the designated provider for only one qualified patient during any 15 -day period and who complies with Chapter 69.51A RCW, shall not be deemed a medical marijuana dispensary for the purposes of this moratorium. B. "Medical marijuana collective garden" means a group of qualifying patients that share responsibility for acquiring and supplying the resources required to produce and process marijuana for medical use. Examples of collective garden resources would include, without limitation, the following: property used for a collective garden; or equipment, supplies, and labor necessary to plant, grow and harvest marijuana; marijuana plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of marijuana plants. A medical marijuana collective garden shall satisfy the above definition regardless of its formation, ownership, management, or operation as a business, agency, organization, cooperative, network, consultation operation, group, or person. One individual person who is the designated provider for only one qualified patient during any 15 -day period and who complies with Chapter 69.51A RCW, or an individual person who is a qualified patient and who complies with 69.51A RCW, shall not be deemed a medical marijuana collective garden for the purposes of this moratorium. W: Word Processing \Ordinances \Moratorium on marijuana collective gardens 8 -10 -11 NG:bjs Page 3 of 5 131 Section 4. No Non conforming Uses. No use that constitutes or purports to be a medical marijuana dispensary or medical marijuana collective garden as those terms are defined in this ordinance, that was engaged in that activity prior to the enactment of this ordinance shall be deemed to have been a legally established use under the provisions of the Tukwila Municipal Code and that use shall not be entitled to claim legal non conforming status. Section 5. Effective Period for Moratorium. The moratorium set forth in this ordinance shall be in effect for a period of 12 months from the date this ordinance is passed and shall automatically expire at the conclusion of that 12 -month period unless the same is extended as provided in RCW 35A.63.220 and RCW 36.70A.390, or unless terminated sooner by the City Council. Section 6. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390, the City Council will hold a public hearing at the City Council's regular meeting at 7:00 p.m. in Council Chambers on October 3, 2011, or as soon thereafter as the business of the City Council shall permit, and which date is no more than 60 days after the date of adoption herein, in order to take public testimony and to consider adopting further findings. Section 7. Work Program. The Director of Community Development and /or his /her designee is hereby authorized and directed to address issues related to determining the legality of medical marijuana dispensaries, production facilities, and processing facilities including but not limited to review of the pending dispute between state and federal law enforcement authorities regarding the legality of medical marijuana under any circumstances and notwithstanding the enactment by the legislature of RCW 69.51A. In the event that such uses are ultimately determined to be legal, the work program should also develop appropriate land use regulations pursuant to the newly amended law for review and recommendation for inclusion in the zoning regulations or other provisions of the Tukwila Municipal Code. The Finance Director and /or his /her designee is hereby authorized and directed to develop appropriate business licensing and other regulations pursuant to the newly amended law for review and recommendation for inclusion in the zoning regulations or other provisions of the Tukwila Municipal Code. Section 8. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 9. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. W: Word Processing \Ordinances \Moratorium on marijuana collective gardens 8 -10 -11 NG:bjs Page 4 of 5 132 Section 10. Effective Date. The City Council hereby finds and declares that there is a potential that persons seeking to engage in marijuana collective garden or dispensary uses could claim vesting under E2SSB 5073 and /or that the presence of any marijuana collective gardens in the City of Tukwila could have negative secondary effects if not first addressed by adequate and appropriate regulations, and that, therefore, an emergency exists which necessitates that this ordinance become effective immediately in order to preserve the public health, safety and welfare. This ordinance shall become effective immediately upon passage. The City Clerk is directed to publish a summary of this ordinance at the earliest possible publication date. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2011. ATTEST /AUTH ENTICATED: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \Moratorium on marijuana collective gardens 8 -10 -11 NG:bjs Page 5 of 5 133 134 Risk Management Bulletin Administration #46 June, 2011 Medical Mariivana Law: Post 2011 Washington Legislative Session By Mark R. Bucklin, WCIA General Counsel Keating Bucklin McCormack, Inc. P.S. A WCIA Risk Management Bulletin was issued 12/28/2010 addressing the then existing state of the law regarding medical marijuana in Washington and the rise of business license applications for medical marijuana "Dispensaries" across the state. In short, the Bulletin concluded that such "dispensaries" were not legal under the law at that time as they inevitably involved the possession and sale of marijuana not allowed by law. It was recommended that business license applications for dispensaries be denied or revoked. The Bulletin predicted that the topic would be addressed in the 2011 Washington State Legislative Session and changes could occur. The topic did arise, legislation was passed and then the legislation was partially vetoed by the Governor. This Bulletin Supplement will address the law as it now exists, post 2011 Legislative Session. In April 2011, the Washington State Legislature passed Engrossed Second Substitute Senate Bill 5073 through both houses amending Initiative 692 and sent it on to the Governor for signature into law. The bill, as passed, offered sweeping changes to the medical marijuana law in Washington and would have put in place a regulatory licensing scheme for the growth and distribution of medical marijuana through licensed dispensaries to "qualified patients" who had been designated as such by their "health care professionals." The production and sale of medical cannabis and the dispensing standards would have been under regulation by the State Department of Health. Dispensers could sell seeds, plants, usable cannabis, and cannabis products directly to qualifying patients. The bill also provided for optional "collective gardens" where individuals who were qualified patients, or their individual providers, could grow for their own use medical marijuana collectively so long as the participants did not exceed 10 in number or more that 15 plants per person and up to 45 plants total. Before the Governor could sign the bill, the U.S. Attorney's in Seattle and Spokane sent the Governor an advisory letter, (which she had solicited) approved by U.S. Attorney General Holder, warning and advising the Governor that substantial portions of the bill approved by the Legislature was in direct conflict with Federal Drug Laws and that state employees could be at risk of federal prosecution for aiding and abetting illegal drug possession and sale if they processed licenses for production and sale of medical cannabis under the proposed new bill. The letter of April 14, 2011 to Governor Gregoire signed by U.S Attorney Jenny Durkin and U.S. Attorney Michael Ormsby stated, in part: "The Washington legislative proposals will create a licensing scheme that permits large scale marijuana cultivation and distribution. This would authorize conduct contrary to federal law and thus, would undermine the federal government's efforts to regulate the possession, manufacturing and trafficking of controlled substance. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up 135 marijuana growing facilities and dispensaries as they will be doing so in violation of federal law. Others who knowingly facilitate the action of the licensees, including property owners, landlords, and financier should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative nroposals would not be immune from liability under the CSA (controlled substances act)." (emphasis added).' Citing this letter, Governor Gregoire issued a partial veto of ESSSB 5073 on April 29, 2011. The Governor vetoed all the new sections dealing with the state licensing of production and licensed dispensing of medical marijuana. The portions of the bill not vetoed and signed by Governor Gregoire amend the original medical marijuana Initiative 692 passed by the people. So, the question becomes: What is left of ESSSB 5073 after the line item veto of the Governor? What Are the Significant Changes in the Law Under ESSSB 5073 as Signed? 1. New stronger protections to qualified medical marijuana users and providers from criminal arrest, prosecution and conviction. Previously qualified users and providers were given an affirmative defense to assert at trial if they were charged with a marijuana crime. Now, sec. 401 of the new act provides: "Sec. 401 The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited Section 102 of the new act states: "(a) Qualifying patients with terminal or debilitating ((illnesses)) medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of ((marijuana)) cannabis, shall not be ((found guilty of a crime under state law for their possession and limited use of marijuana)) arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of cannabis, notwithstanding any other provision of law; (b) Persons who act as designated providers to such patients shall also not be ((found guilty of a crime under state law for)) arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law, notwithstanding any other provision of law, based solely on their assisting with the medical use of ((marijuana)) cannabis; I Letter attached Partial veto letter attached -2- 4 Author's Supplemental Note: Did the act, as partially vetoed, really make medical marijuana possession and use exempt from arrest and prosecution? It has been pointed out that section 401 may have been intended to only relate to those qualified users who obtained registry cards provided in Sec. 401(2) and Sec. 901. The Governor vetoed Sec. 901 which would have created the State Registry system. Does the Sec. 102's similar language stand alone and reach the same result? If not, then the language of Sec. 402(1) and (2) which provides an affirmative defense to criminal arrest and charges for qualified patients who do not have registry cai may be the operative law. Court decisions may have to clarify this issue. 2. Health Care Professionals are given greater protection but with greater restrictions regarding issuing "valid documentation" to qualifying patients authorizing medical use of cannabis. a. Health Care Professionals have been given the same protections as qualifying patients and providers as noted above. (Sec 301(1)) b. The new act states: "Sec. 301(2)(a) A health care professional may only provide a patient with valid documentation authorizing the medical use of cannabis or register the patient with the registry established in section 901 of this act if he or she has a newly initiated or existing documented relationship with the patient, as a primary care provider or a specialist, relating to the diagnosis and ongoing treatment or monitoring of the patient's terminal or debilitating medical condition, and only after: (1) Completing a physical examination of the patient as appropriate, based on the patient's condition and age, (ii) Documenting the terminal or debilitating medical condition of the patient in the patient's medical record and that the patient may benefit from treatment of this condition or its symptoms with medical use of cannabis; (iii) Informing the patient of other options for treating the terminal or debilitating medical condition; and (iv) Documenting other measures attempted to treat the terminal or debilitating medical condition that do not involve the medical use of cannabis. (b) A health care professional shall not: (1) Accept, solicit, or offer any form of pecuniary remuneration from or to a licensed dispenser, licensed producer, or licensed processor of cannabis products; (ii) Offer a discount or any other thing of value to a qualifying patient who is a customer of, or agrees to be a customer of, a particular licensed dispenser, licensed producer, or licensed processor of cannabis products; (iii) Examine or offer to examine a patient for purposes of diagnosing a terminal or debilitating medical condition at a location where cannabis is produced, processed, or dispensed; (iv) Have a business or practice which consists solely of authorizing the medical use of cannabis; -3- 137 (v) Include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice; or (vi) Hold an economic interest in an enterprise that produces, processes, or dispenses cannabis if the health care professional authorizes the medical use of cannabis. (3) A violation of any provision of subsection (2) of this section constitutes unprofessional conduct under chapter 18.130 RCW." 3. Use of medical cannabis at work or in jails requires no accommodation and may be prohibited. Drug free work places may be continued. Medical insurance is not required to cover medical cannabis. Medical cannabis may not be smoked in public but it is now an infraction, not a crime. Persons under supervised probation or parole may be prohibited from the use medical cannabis. The use of medical cannabis is not a defense to Driving Under the Influence. "Sec. 501. RCW 69.51A.060 and 2010 c 284 s 4 are each amended to read as follows: (1) It shall be a ((misdemeanor)) class 3 civil infraction to use or display medical ((marijuana)) cannabis in a manner or place which is open to the view of the general public. (2) Nothing in this chapter ((requires any health insurance provider)) establishes a right of care as a covered benefit or requires any state purchased health care as defined in RCW 41.05.011 or other health carrier or health plan as defined in Title 48 RCW to be liable for any claim for reimbursement for the medical use of ((marijuana)) cannabis. Such entities may enact coverage or noncoverage criteria or related policies for payment or nonpayment of medical cannabis in their sole discretion. (3) Nothing in this chapter requires any health care professional to authorize the medical use of ((medical marijuana)) cannabis for a patient. (4) Nothing in this chapter requires any accommodation of any on- site medical use of ((marijuana)) cannabis in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking ((medical marijuana)) cannabis in any public place ((as that term is defined in RCW 70.160.020)) or hotel or motel. (5) Nothing in this chapter authorizes the use of medical cannabis by any person who is subject to the Washington code of military justice in chapter 38.38 RCW. (6) Employers may establish drug -free work policies. Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug -free work place." "Sec. 1105. (1)(a) The arrest and prosecution protections established in section 401 of this act may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision. 138 (b) The affirmative defenses established in sections 402, 405, 406, and 407 of this act may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision. (2) The provisions of RCW 69.51A.040 and sections 403 and 413 of this act do not apply to a person who is supervised for a criminal conviction by a corrections agency or department, including local governments or jails, that has determined that the terms of this chapter are inconsistent with and contrary to his or her supervision. (3) A person may not be licensed as a licensed producer, licensed processor of cannabis products, or a licensed dispenser under section 601, 602, or 701 of this act if he or she is supervised for a criminal conviction by a corrections agency or department, including local governments or jails, that has determined that licensure is inconsistent with and contrary to his or her supervision." "Sec. 501(8) (8) No person shall be entitled to claim the ((affirmative defense provided in RCW 69.51A.040)) protection from arrest and prosecution under RCW 69.51A.040 or the affirmative defense under section 402 of this act for engaging in the medical use of ((marijuana)) cannabis in a way that endangers the health or well -being of any person through the use of a motorized vehicle on a street, road, or highway, including violations of RCW 46.61.502 or 46.61.504, or equivalent local ordinances." 4. A "designated provider" who has been terminated by a "qualified patient" cannot become a designated provider for another qualified patient until 15 days have elapsed. "Sec. 404. (1) A qualifying patient may revoke his or her designation of a specific provider and designate a different provider at any time. A revocation of designation must be in writing, signed and dated. The protections of this chapter cease to apply to a person who has served as a designated provider to a qualifying patient seventy -two hours after receipt of that patient's revocation of his or her designation. (2) A person may stop serving as a designated provider to a given qualifying patient at any time. However, that person may not begin serving as a designated provider to a different qualifying patient until fifteen days have elapsed from the date the last qualifying patient designated him or her to serve as a provider." 5. Qualifying patients may, under restrictions, create "collective gardens" to produce medical cannabis. "Sec. 403. (l) Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use subject to the following conditions: -5- 139 (a) No more than ten qualifying patients may participate in a single collective garden at any time; (b) A collective garden may contain no more than fifteen plants per patient up to a total of forty -five plants; (c) A collective garden may contain no more than twenty -four ounces of useable cannabis per patient up to a total of seventy -two ounces of useable cannabis; (d) A copy of each qualifying patient's valid documentation or proof of registration with the registry established in section 901 of this act, including a copy of the patient's proof of identity, must be available at all times on the premises of the collective garden; and (e) No useable cannabis from the collective garden is delivered to anyone other than one of the qualifying patients participating in the collective garden. (2) For purposes of this section, the creation of a "collective garden" means qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use such as, for example, a location for a collective garden; equipment, supplies, and labor necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants. (3) A person who knowingly violates a provision of subsection (1) of this section is not entitled to the protections of this chapter." (Author's Note: Sec 501(1) makes the public disalav of medical cannabis a civil infraction and this would presumably apply to the display of medical cannabis in a collective garden hence some sort of screening from public view seems to be built into the act.) G. Cities and Counties may but are not required to, zone, license, regulate and tax the production, processing and dispensing of cannabis. This would appear to be now limited to collective gardens since that is the only new activity allowed under the act and individual single production of medical cannabis by a qualified user or provider. "Sec. 1102. (1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes. Nothing in this act is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. (2) Counties may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction in locations outside of the corporate limits of any city or town: 01 MK Zoning requirements, business licensing requirements, and health and safety requirements. Nothing in this act is intended to limit the authority of counties to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers." (Author's Note: The Governor vetoed all other sections of the act that would have created legal licensed dispensers of medical cannabis so presumably the language in this section addressing the zoning of licensed dispensers is null and void.) 7. Police and local jurisdictions are given limited immunity under the act for good faith actions. "Sec. 1101. (1) No civil or criminal liability may be imposed by any court on the state or its officers and employees for actions taken in good faith under this chapter and within the scope of their assigned duties. (2) No civil or criminal liability may be imposed by any court on cities, towns, and counties or other municipalities and their officers and employees for actions taken in good faith under this chapter and within the scope of their assigned duties." Challenges and Issues for Local Government Under the New Act 1. What to do with existing medical marijuana /cannabis dispensaries and business license applications for the same? As previously noted, the Governor's line item veto took out all provisions of the law that would have made dispensaries licensed and legal. Hence the law remains the same as before and there is no credible argument that medical cannabis dispensaries that sell cannabis are legal under state or federal law. (See prior WCIA Bulletin of 12/28 /2010 Medical Mariivana Dispensaries -Are Thev Legal The sale of mariivana in the State of Washington remains illeLyal and subiect to criminal prosecution. (RCW 69.50.401 410.) Nothing in the new act makes the sale of medical marijuana/cannabis legal. Existing dispensaries that are selling marijuana/cannabis are subject to police investigation, arrest and prosecution. Priority of enforcement is up to the local jurisdictions and decisions on resource allocation. Pending or new applications for business licenses dispensaries of medical cannabis should be denied as illegal businesses if there is any evidence that the sale of cannabis is part of the operational scheme or business plan. 2. Should local governmental entities do zoning or zoning moratoriums regarding medical marijuana /cannabis dispensaries? SO 141 There does not appear to be any current urgency to do so as the legislation that would have allowed legal dispensaries starting in 2012 has been vetoed. However, the political backers of ESSSB 5073 have vowed they will come back with a new proposal in the next legislative session. Preemptive zoning in anticipation that someday dispensaries may become legal under state law is a consideration for local jurisdictions that may be concerned about a future applicant becoming vested to a site that is inconsistent with the overall zoning scheme of the jurisdiction. 3. Should local jurisdictions get involved in the zoning, regulation or licensing of "collective gardens This is a difficult issue. The new act does not require any local action but does allow it under Sec. 1102. The possession of marijuana for any reason under federal law may be a crime and the federal law does not recognize exceptions for medical use of cannabis and marijuana except in authorized clinical situations. Hence, an argument can be made that if local jurisdictions specifically allow, license and regulate collective marijuana gardens they and the employees executing the laws could run a fowl of the U.S. Attorney warnings expressed in letter of April 14, 201 delivered to Governor Gregoire. They could be viewed as aiding and abetting a violation of the federal controlled substances act. Some may argue the threat is remote but no one can say it is impossible. The other side of the argument is that unregulated and uncontrolled collective gardens could become a public safety threat and therefore regulation and licensing is a means of reducing the threat. Under the new law collective gardens may be planted and marijuana grown by qualified patients of up to ten in number. There are no provisions in the state law as to where in a local jurisdiction such gardens may be started nor is there any provisions for fencing, screening, security or safety. It is easy to envision that such collective gardens could become the locus of thefts of marijuana plants and finished product and potentially violent confrontations could occur. Collective gardens could be started next to schools and churches. Some citizens may not appreciate relatively large scale open marijuana cultivation next to their back yards, businesses, churches or schools. There could be political pressure on local elected officials to regulate and license cannabis production via "collective gardens." They may demand regulation and licensing under the authority of Sec. 1102 "Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes." (Author's Note: Business taxes on collective gardens is likely not legal as "sales" of medical cannabis is not authorized by the partially vetoed act.) 142 Local police authorities may feel that zoning, licensing and regulation of collective gardens would assist them in tracking and distinguishing legal grow operations from illegal ones. There does not appear to be any express authority or provision in the new act that would allow the outright banning of collective gardens by local jurisdictions. Sec. 401 of the act directly empowers qualified users to start and maintain collective gardens. This would appear to preempt local authorities from doing outright bans on collective gardens on private property. Likewise, local jurisdictions could not ban individual qualified patients or their providers from cultivation of medical marijuana/cannabis on private property or at their homes so long as they have the proper documentation and limit their possession to 15 plants or 24 ounces of useable cannabis. If the decision is made to zone, license and regulate collective gardens by the local jurisdiction care will be need to make sure that an appropriate legislative history is developed to document the negative impacts of unregulated collective gardens and to narrowly fashion regulations tailored to address those negative impacts. Failure to do so could lead to challenges that the regulations or zoning violated substantive due process protections under the Constitution. Members are advised to work closely with their legal counsel on these issues. If Members think that zoning regulation and licensing of collective gardens is in their best interest they may wish to quickly impose a moratorium prohibiting their establishment for a brief period of time to develop the necessary legislative history and to adopt appropriate ordinances for zoning. licensing and regulating collective gardens. WC11A strongly advises against Members allowing use of public property or public "pea patches" for use as "collective gardens" where medical marijuana /cannabis is grown. It would expose the jurisdiction to unnecessary liability claims as a landlord under premises liability law if other legal users of the public lands were injured due to criminal activity /thefts potentially associated with the production of the cannabis products. Conclusion The truncated and partially vetoed version of ESSSB 5073 signed into law by Governor Gregoire becomes effective on July 22, 2011. Medical marijuana/cannabis dispensaries that sell cannabis products remain illegal. The fact that the Legislature went to great lengths to try and make them legal and then failed by virtue of the Governor's veto; re- enforces the argument that they were never legal. Nevertheless, proponents of medical cannabis will continue to argue to the contrary and will continue to urge novel schemes and models for the distribution of medical cannabis to local jurisdictions in hopes of obtaining business licenses and therefore apparent legitimacy. It is suggested that any such new model be closely analyzed to determine where the profit may be W .lam made in the business model. If it ultimately involves a sale of marijuana or cannabis products it is likely illegal under both state and federal law. The political battle promises to be carried on in the future. Governor Gregoire's signing letter partially vetoing ESSSB 5073 states she remains open to legislation that would exempt qualifying patients and their providers from criminal penalties when they join a cooperative to distribute medical marijuana. The proponents of ESSSB 5073 promise to return in the next legislative session to have another go at it. It is not clear how any future effort will have success as long as the federal law remains intact and continues to criminalize possession and sale of marijuana regardless of its designation as for medical treatment. Future case law may also clarify or further obscure the picture. It appears the only certainty is more uncertainty as to what future law in this area may develop. -10- 144 Upcoming Meetings Events August 2011 15th (Monday) 16th (Tuesday) 17th (Wednesday) 18th (Thursday) 19th (Friday) 20th (Saturday) Transportation Finance Parks Tukwila Peanut Butter and Tukwila Days Cmte, Safety Cmte, Commission, Historical Jam Concert Event: 5:00 PM 5:00 PM 5:30 PM Society, Series Community Heritage (CR 91) (CR 93) (Connnunity 7:00 PM FREE family fun! Culture Celebration Center) (Tuk-wila 12:00 Noon 12:00 -4:00 PM Tukwila Heritage Heritage Heritag Center, Cultural (ConununityCenter Cultural Center Library Advisory 14475 59" Ave by the Spray Park) (14475 59" Ave S) City Council Board, S) This week: This new event Regular Mtg., 7:00 PM Harmonica Pocket includes vendor booths 7:00 PM (Foster Librar)) displays, food, local (Council Summer Outdoor entertainment, a Chambers) Cinema Series Goodwill Vintage Fashion Show, and the Regular Mtg. to FREE! Donation of 8 1 annual Tukwila be immediately two cans of food per Vintage Car Show. followed by family member Call 206 768 -2822 for Executive Primary Election requested to support more information. Session Day the Tukwila Food VOTE! 0 Pantry Cottage Creek (Conununio Restoration party For a link to Movie starts at dusk. 9:00 AM —Noon Tukwila Pool Today's movie: (meet by flagpole at Metropolitan Park Alpha Ome g a City Hall) District voter fact (Alovie will be shown For more infornmtion sheet, visit inside in the event of call: 206 -431 -3684 or www.mkwilawa.eov inclement weather.) a -mail: brandon. miles@ nrkwilava.gov 22nd (Monday) 23rd (Tuesday) 24th (Wednesday) 25th (Thursday) 26th (Friday) 27th (Saturday) Community Utilities Crate, COPCAB, Planning Tukwila Int'l. Affairs Parks 5:00 PM 6:30 PM Commission, Blvd. Action Crate, (CR 91) (CR 95) 6:30 PM Cmte's 5: 00 PM (Council Trash Pickup Day (CR 93) Budget Work Chambers) 9:00 10:00 AM Session 6:00 8:00 Prof r F f City Council (Council Committee of Chambers) the Whole Mtg., 7:00 PM Tukwila For location contact (Council International Rick at Chambers) Boulevard rick @forschler.org Committee of Action Cmte, the Whole to be 7:00 PM immediately (Community followed by a Center) Special Mtg. Chamber of Commerce's Tukwila Government and Community Affairs Committee: Ist Tues., 12:00 Noon, Chamber Offices. Contact Lynn Wallace at 206 -575 -1633. City Council Committee of Whole (C.O.W.) Meeting: 2nd 4th Mon., 7:00 PM, Council Chambers at City Hall. City Council Regular Meeting: 1st 3rd Mon., 7:00 PM, Council Chambers at City Hall. Civil Service Commission: 1st Mon., 5:00 PM, Conf. Room #3. Contact Hunnan Resources at 206 -431 -2187. Community Affairs Parks Committee: 2nd 4th Mon., 5:00 PM, Conf. Room #3. Equity Diversity Commission: 1st Thurs., 5:15 PM, Conf. Room #3. Contact Joyce Tr•antina a1206- 433 -1850. Finance Safety Committee: I st 3rd Tues., 5:00 PM, Conf. Room 43. (A) Investment Report for 2 Quarter of 2011. Human Services Advisory Bird: 2nd Fri. of odd months, 10:00 AM, Human Services Office. Contact Evie Boykan at 206- 433 -7180. Library Advisory Board: 3rd Wed., 7:00 PM, Foster Library. Contact Stephanie Gardner at 206- 767 -2342. Parks Commission: 3rd Wed., 5:30 PM, Senior Game Room at Community Center. Contact Stephanie Gardner at 206- 767 -2342. Planning Commission/Board of Architectural Review: 4th Thurs., except 2nd Thursday in Nov. Dec., 6:30 PM, Council Chambers at City Hall. Contact Wynetta Bivens at 206 -431 -3670. Sister City Committee: Quarterly (7/6 10/5), 5:30 PM, Conf Room #3. Contact Tracy Gallaway at 206- 767 -2305. Transportation Committee: 1st 3rd Mon., 5:00 PM, Conf. Room #1. (A) Transportation hnprovennent Board Funding Programs —Authorize the Submittal of Grant Applications. (B) 2011 Overlay Program Consultant Selection and Contract for Construction Management. (c) TUC Pedestrian Bridge Present Type, Size and Location Study. Tukwila Int'I. Blvd. Action Crate: 2nd Tues., 7:00 PM, Tukwila Community Center. Contact Chief Mike Villa at 206 -433 -1812. Utilities Committee: 2nd 4th Tues., 5:00 PM, Conf. Room #1 145 Tentative Agenda Schedule MONTH MEETING 1- MEETING 2 MEETING 3 MEETING 4 REGULAR C.O.W. REGULAR C.O.W. August 1 8 15 22 See agenda packet SuecialPresentation: cover sheet for this Swearing in of 1 week's agenda Police Officer and 1 (August 15, 2011 Transport Officer Regular Meeting) Financial Status Report 2 ^d Quarter 2011 Special Issues: Regulations regarding chickens King County Transfer Station Interlocal Agreement September 6 (Tuesday) 12 19 26 Appointments: Special Presentations: COPCAB Treasures of Tukwila Appointments Safe Routes to School Unfinished Business: Regulations regarding chickens King County Transfer Station Interlocal Agreement Public Hearing: UUP Blue Star Gas Unfinished Business: UUP Blue Star Gas 146