City of Bellingham Municipal Code

16.55.080 - EXEMPTIONS

A. Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the Director that describes the activity and states the exemption listed in this section that applies.

The Director shall review the exemption request to verify that it complies with this Chapter and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this Chapter. The Director may add conditions for exemption to ensure the level of activity remains consistent with the provisions of this Chapter.

B. Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas and their buffers. To be exempt from this Chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense within a reasonable time and in an appropriate manner.

C. Required Use of Best Management Practices. All exempted activities shall be conducted using the best management practices that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The City shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense within a reasonable time and in a reasonable manner.

D. Exempt Activities. The following activities, developments, and associated uses shall be exempt from the provisions of this Chapter, provided that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements.

1. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to public or private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this Chapter. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the City within one week following commencement of the emergency activity. Within 30 days, the Director shall determine if the action taken was within the scope of the emergency actions allowed in this Subsection. If the Director determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions shall apply.

After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical area report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical area report, and mitigation plan shall be reviewed by the City in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner.

2. Normal Operation, Maintenance, or Repair. Normal maintenance, or repair of lawfully established existing buildings, improvements, utilities, public or private roads, dikes, levees, or drainage systems and landscaping that does not require construction permits, provided the activity does not increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed activity. Normal maintenance includes activities performed in accordance with best management practices that are part of normal ongoing maintenance and do not expand further into the critical area and do not directly impact an endangered or threatened species.

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching are permitted

4. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure. Said modification shall not further alter or increase any code nonconformity or impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement. Restoration of structures substantially damaged by fire, flood, or act of nature must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

5. Activities Within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a City authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater; subject to the following:

a. Critical Area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

6. Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the Director in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s), provided that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased stormwater. Such allowed minor utility projects shall meet the following criteria:

a. There is no practical alternative to the proposed activity with less impact on critical areas;

b. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and

c. The activity involves disturbance of an area less than 100 square feet;

7. Select Vegetation Removal Activities. The following vegetation removal activities are allowed, provided that no vegetation shall be removed from a critical area or its buffer without approval from the Director;

a. Removal of noxious weeds using non-motorized equipment or light equipment if approved by the Director. If herbicides are used to control these weeds, a licensed applicator is required, unless otherwise authorized by the Director. Bare areas remaining after weed removal shall be re-vegetated with native plant material and covered with at least 3 inches of mulch as soon as practicable.

b. Removal and pruning of hazard trees provided that an ISA (International Society of Arboriculture) certified arborist documents the hazard and provides a report to the Director for review and approval. The landowner shall replace any cut tree with three replacement trees (3:1 replacement ratio) within six months of cutting, in accordance with an approved replacement plan. Replacement trees shall be native species indigenous to the vicinity and approved by the Director. Size of trees shall be approved by the Director. The landowner shall ensure 100% survival of replacement trees.

c. Cut vegetation (other than noxious weeds) shall be left within the critical area or buffer where practicable unless removal is warranted due to the presence of an established disease infestation or other hazard, or because of access or maintenance needs if the area is a utility or access right-of-way.

d. Root systems and bases of cut trees shall be left intact and undisturbed. When possible the cut tree shall be left as a snag and be as tall as safely possible. The snag shall be retained as a habitat feature.

e. Prior to removal of hazard trees on temperature impaired waterbodies, as determined by Washington State Department of Ecology’s 303(d) listing, Planning staff shall consult with Public Works staff to weigh the negative impacts of removing or pruning the tree(s) on the waterbody.

f. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the Director provided that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this Chapter.
8. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, as deemed necessary, and, approved by the City, provided that their use shall be restricted in accordance with state Department of Fish and Wildlife Management Recommendations and the regulations of the state Department of Agriculture and the U.S. Environmental Protection Agency;

9. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored. Septic excavation pits are prohibited in wetlands or areas suspected of being wetlands;

10. Fish, wildlife, and/or wetland restoration or enhancement activities not required as project mitigation provided that the project is approved by the Washington State Department of Fish and Wildlife, Washington State Department of Ecology, Army Corps of Engineers, or other appropriate local, state, federal, or tribal jurisdiction.

11. Construction of Essential Public Facilities.

a. Essential Public Facilities Qualifying for Exemption. Only those essential public facilities listed below may apply for an exemption under this section:

i. Streets
(1) James Street multi-modal improvements
(2) San Juan Boulevard
(3) Birchwood Avenue - James Street connector
(4) Horton Road (between Northwest Avenue and Cordata Parkway)

ii. Water
(1) Water Treatment Plant expansion
(2) Upper Yew reservoir, pump station, access road and mains

iii. Sewer
(1) Waste Water Treatment Plant expansion
(2) Meridian Street capacity improvements near Bakerview Road

iv. Stormwater
(1) Padden Creek daylighting

v. Trails
(1) Bay to Baker Trail from Roeder Avenue to City limits
(2) Interurban Trail improvements through Arroyo Park and proposed connections to Woodstock Farm
(3) West Bakerview Trails (between Eliza and Northwest)
(4) Aldrich/Horton Trails (in newly annexed area)
(5) Padden Creek Trail
(6) Samish Crest Trail
(7) Northridge Park Neighborhood Trail connectors
(8) Cordata Park Neighborhood Trail connectors

vi. Parks
(1) Northridge Park
(2) Cordata Park
(3) Sunset Pond Park

b. Requirements.

i. The proponent of the proposed essential public facility must comply with subsections A through C above; and

ii. The proponent has the burden of showing that:
(1) There is no practical alternative to the proposed development with less impact on the City's critical areas;
(2) Any proposed alteration of a critical area to construct the essential public facility is the minimum necessary to accommodate the essential public facility;
(3) The construction of the essential public facility minimizes the adverse impacts on the critical area; and
(4) The construction of the essential public facility utilizes best available science and results in no net loss of function to the type of critical area being impacted.

c. Decision. The Director's decision on the exemption is a Type II decision and shall comply with the provisions of BMC 21.10.110.