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Ordinance No. 2024-04 Utility Regulations (Approved 092424)Page 1 of 21 ORDINANCE NO. 2024-04 AN ORDINANCE of the City of Bainbridge Island, Washington, relating to requirements for primary utility development permits, amending BIMC Section 16.20.100.E.1, Section 16.20.050, Section 16.20.140.G.2, Section 16.20.140.H.5, Section 16.20.190, Section 18.09.030.F.2, Table 18.12.020- 2, Table 18.12.020-3, and Table 18.12.040. WHEREAS, Goal U-14 of the Utility Element of the City’s Comprehensive Plan includes a commitment to plan together with the electric service provider to undertake energy efficiency improvements and other alterations to provide capacity for future growth and encourages the electric service provider to improve reliability, with particular attention to adding transmission redundancy and mitigating impacts on service from storms or other natural events; and WHEREAS, Puget Sound Energy (PSE) has requested several amendments to Bainbridge Island’s Municipal Code in order to continue to maintain, upgrade, and install new electric infrastructure that supports reliability and capacity needs for the City of Bainbridge Island; and WHEREAS, primary utilities are defined in the City’s municipal code to include both parcel-based facilities such as electrical substations as well as linear facilities such as electrical distribution or transmission lines that may involve many parcels; and WHEREAS, in accordance with BIMC.2.16.180, Puget Sound Energy applied for a request to amend the Bainbridge Island municipal code in April 20, 2022; WHEREAS, City planning staff and PSE engaged in collaborative discussion of the scope of the request; and WHEREAS, an updated application for legislative review of land use regulations was submitted by Puget Sound Energy on February 6, 2024; and WHEREAS, the Planning Commission considered the Puget Sound Energy application and draft Ordinance No. 2024-04 on February 22, 2024, March 14, 2024, March 28, 2024, April 25, 2024, May 23, 2024, June 27,2024, August 23, 2024; and WHEREAS, after timely and proper notice the Planning Commission held a public hearing on Ordinance No. 2024-04 on August 23, 2024; and WHEREAS, the Planning Commission moved to recommend approval related to amendments to the BIMC code sections 16.20.100.E.1, 16.20.050, 16.20.140.G.2, 16.20.140.H.5, 16.20.190, and 18.09.030.F.2 and tables 18.12.020-2, 18.12.020-3 and 18.12.040 to the City Council; and Page 2 of 21 WHEREAS, notice was given on July 3, 2024, to the Office of Community Development at the Washington State Department of Commerce in conformance with RCW 36.70A.106; and WHEREAS, on July 3, 2024, the City’s SEPA Responsible Official issued a Determination of Nonsignificance in accordance with State Environmental Policy Act regulations (WAC 197-11-340(2)); and WHEREAS, on September 10, 2024 the City Council discussed the Planning Commission recommendation on Ordinance No. 2024-04. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. Section 16.20.100.E.1 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 1. Any proposed development or activity requiring a site assessment review (SAR) pursuant to Chapters 15.19 and 15.20 BIMC located within the R-0.4, R-1 or R-2 zoning designations requires designation of an ARPA; except, designation of an ARPA is not required for the following: a. Removal of invasive species; b. Construction of public trails provided the standards set forth in BIMC 16.20.110.G.5.a through e are met; c. Replacement of hard surfaces; and d. Development and activities located on properties protected in perpetuity by a legal instrument acceptable to the city attorney wherein at least 65 percent of the site meets the development standards for aquifer recharge protection areas of this section; and e. Activities related to the installation, upgrade, and maintenance of primary utility facilities, when located on property not owned in fee by the utility, provided the applicant submits a vegetation restoration plan for approval by the City Arborist unless the vegetation management and mitigation provisions within BIMC 16.12 and/or BIMC 16.20 provide greater net functions and values within the shoreline or for a critical area. A proposed vegetation restoration plan shall include: i. Tree inventory showing all trees to be removed within the project area including location, number, and size of proposed trees to be Page 3 of 21 removed. Size shall be provided in both diameter at breast height (DBH) in inches and estimated canopy square footage. ii. A minimum of the following ratios for each tree removed: 2:1 for trees removed that are up to 24 inches at diameter breast height (DBH), 3:1 for trees between 25 inches and 47 inches DBH, and 4:1 for trees 48 inches DBH and larger, or demonstrate equal canopy coverage replacement within 30 years. Replacement trees may be planted at a nearby location. Additional tree planting may be required based on site specific conditions, to the satisfaction of the City Arborist. iii. Shrubs and other vegetation may be substituted for trees in locations where trees are infeasible or inappropriate due to compatibility with utility use, pending review and approval by the City Arborist. iv. Replacement vegetation shall demonstrate an emphasis on the use of native and/or climate resilient species. Section 2. Section 16.20.050 of the Bainbridge Island Municipal Code is hereby amended to read as follows: A. Existing Structures and Related Improvements. Structures and related improvements that were legally built or vested prior to the effective date of the ordinance codified in this chapter that do not meet the requirements of this chapter may continue to exist in their present form, and may be altered, including remodeled, reconstructed, or expanded, if such alteration complies with the provisions of this section and all other applicable sections of this chapter. B. Existing buildings that were legally built or vested prior to the effective date of the ordinance codified in this chapter may be altered only one time within the lifetime of the structure, and: 1. The expansion of the footprint is outside a landslide hazard area or landslide hazard area setback unless required for safety or seismic upgrades; 2. Any expansion of the footprint is located only within a critical area buffer. No expansion of the footprint is allowed within a wetland or fish and wildlife habitat conservation area; 3. Any expansion of the footprint within a critical aquifer recharge area is located outside the aquifer recharge protection area pursuant to BIMC 16.20.100.E. 4. Cantilevers over critical areas are not allowed; Page 4 of 21 5. The expansion of the footprint at ground level does not exceed 500 square feet; 6. Any expansion of the footprint is used only as indoor living space or to accommodate accessibility; 7. Any expansion of the footprint is no closer to the critical area than the existing footprint; and 8. If a building is harmed or destroyed by more than 50 percent of its square footage, the building must be reconstructed in compliance with the requirements of this chapter. C. Existing property improvements other than buildings, including driveways, parking areas, yards and landscaped areas, play areas, storage areas, decks less than five feet in height, patios, and similar improvements that were legally established or vested prior to the effective date of the ordinance codified in this chapter may be altered if: 1. Any alteration is in substantially the same location as the original property improvement; 2. Any expansion of the footprint is located only within the required buffer. No expansion of the footprint is allowed within the critical area itself and cantilevers over critical areas are not allowed; 3. Any expansion of the footprint is no closer to the critical area than the existing footprint; and 4. Any expansion of the footprint within a critical aquifer recharge area is located outside the aquifer recharge protection area pursuant to BIMC 16.20.100.E. D. Existing electric transmission and distribution lines that traverse or are directly located in wetlands, may be altered, maintained and upgraded in ways that do not meet the precise terms of an exempt activity in BIMC 16.20.040 if: 1. The applicant demonstrates that the proposed alterations, maintenance or upgrades provide the least impact to regulated wetlands necessary in order to provide utility services to the public; 2. The alteration, maintenance or upgrade is the minimum necessary and there is no practicable alternative location or construction activity with less adverse impact on the functions and values of the critical area; 3. Replaced poles shall not be moved more than 20 feet from the original location. New poles added as part of an upgrade must be installed within a 20 foot distance of the existing distribution and/or transmission line infrastructure. Page 5 of 21 a. If the applicant can demonstrate a lower overall impact to the wetland, new or replaced poles may be located farther than 20 feet from existing infrastructure with a minor conditional use permit. 4. Proposed vegetation removal is unavoidable and is demonstrated to be a present or future danger to the transmission or distribution lines. Vegetation removal shall follow the procedure under BIMC 16.20.090.C. Any area of disturbance shall be revegetated with appropriate native vegetation at not less than preconstruction functions and values or greater, upon completion of construction or within a timeframe proposed to and approved by the Director. The Director retains the right to require additional mitigation if the proposed revegetation does not sufficiently protect the functions and values of the wetland and its buffer. The utility shall ensure that such vegetation survives or is replanted if the replanting fail within a minimum of five years; 5. The alteration, maintenance or upgrade does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site; and 6. The alteration, maintenance or upgrade avoids and minimizes the impact on critical areas in accordance with required mitigation sequencing under BIMC 16.20.030 and demonstrates no net loss as defined in BIMC 16.20.190.A.59, and is consistent with best available science. 7. The Director may require additional mitigation measures if they are deemed necessary in accordance with the required mitigation sequencing described in BIMC 16.20.030. D. E. Buffer modifications pursuant to BIMC 16.20.110 and 16.20.140 shall not be granted for existing development. E. F. Alterations permitted by this section must comply with other applicable city code or land use review requirements and require submittal of a critical areas permit application in accordance with the permit and review procedures required for the affected critical area(s). (Ord. 2018-01 § 2 (Exh. A), 2018) Section 3. Section 16.20.140.G.2 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 2. The following development, uses and activities are prohibited in Category I and II wetlands: a. Fish hatchery; b. Golf course; c. Mineral extraction; d. Public facility; e. Public communications tower; Page 6 of 21 f. New public road/street; g. New private access road or driveway; h. Stormwater retention/detention facility; or i. Primary utility. Exceptions for electric transmission and distribution lines may apply under BIMC 16.20.050.D for existing development or under BIMC 16.20.140.H.5 for new development. Section 4. Section 16.20.140.H.5 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 5. Utilities. Installation of utilities within wetlands or their required buffers may be allowed when the following standards are met: a. Construction of new utilities outside the road right-of-way or an existing utility corridor may be permitted in wetlands or wetland buffers, only when no reasonable alternative location is available and the utility meets the requirements for installation, replacement of vegetation and maintenance outlined below, and as required in the filing and approval of applicable permits and special reports required by this chapter. b. Sewer or On-Site Sewage Utility. Construction of sewer lines or on-site sewage systems may be permitted in wetland buffers only when: i. The applicant demonstrates it is necessary to meet state and/or local health code minimum design standards (not requiring a variance for either horizontal setback or vertical separation); and/or ii. There are no other practicable or reasonable alternatives available and construction meets all other applicable requirements of this section. Joint use of the sewer utility corridor by other utilities may be allowed. c. New utilities shall not be allowed when the wetland or buffer has known locations of federal- or state-listed endangered, threatened, monitored or sensitive species, heron rookeries or nesting sites of raptors which are listed as species of concern, except in those circumstances where an approved habitat management plan indicates that the utility corridor will not significantly impact the wetland or wetland buffer. d. New utility construction and maintenance shall protect the wetland and buffer environment by utilizing the following methods: i. New utilities shall be aligned to avoid tree removal to the greatest extent practicable. ii. Any area of disturbance resulting from installation of a utility shall be revegetated with appropriate native or equivalent vegetation at Page 7 of 21 preconstruction densities or greater, immediately upon completion of construction, or as soon thereafter as possible, if due to seasonal growing constraints. The utility or landowner responsible for installation shall ensure that such vegetation survives. iii. Any access for maintenance shall be provided as much as possible at specific points, rather than by parallel roads. If parallel roads are necessary, they shall be of a minimum width but no greater than 15 feet; and shall be contiguous to the location of the utility corridor on the side away from the wetland. Mitigation will be required for any additional access through restoration of vegetation in disturbed areas. iv. The director may require additional mitigation measures. v. Utility maintenance shall include the following measures to protect the wetland and buffer environment: A. Painting of utility equipment such as power towers shall not be sprayed or sandblasted. Lead-based paints are prohibited. B. No pesticides, herbicides or fertilizers may be used in wetland areas or their buffers except those approved by the U.S. Environmental Protection Agency (EPA) and Washington Department of Ecology and applied by a licensed applicator in accordance with the safe application practices on the label. e. Construction of new distribution and transmission utility lines in Category III and IV wetlands shall follow the provisions in BIMC 16.20.140.H.5.a through d. Construction of new distribution and transmission lines may be permitted in Category II wetlands and their buffers provided all the other applicable sections of this chapter are met, and: i. The applicant demonstrates that the inability to impact Category II wetlands would unnecessarily restrict the ability to provide utility services to the public; ii. There is no practicable alternative location with less adverse impact on the functions and values of the impacted Category II wetland. iii. Construction of the utility where impacts to a Category II wetland cannot be avoided is within or directly adjacent to an existing road right-of-way; iv. The construction of new distribution and transmission utility lines does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site; and Page 8 of 21 v. The construction of new distribution and transmission utility lines avoids and minimizes the impact on critical areas in accordance with required mitigation sequencing and demonstrates no net loss as described in BIMC 16.20.030, and is consistent with best available science. Section 5. Section 16.20.190 of the Bainbridge Island Municipal Code is hereby amended to read as follows: A. For the purposes of this chapter, the following definitions shall apply: 1. “Accessibility” means that a building or structure can be independently used by people with a variety of disabilities. 2. “Adverse impact” means a condition that creates, imposes, aggravates, or leads to inadequate, unsafe, or unhealthy conditions on a site. 3. “Agricultural activities” means the normal actions associated with the production of crops such as plowing, cultivating, minor drainage, and harvesting; and/or raising or keeping of livestock, including operation and maintenance, and repair of farm and stock ponds, drainage ditches, irrigation systems, and normal operation, maintenance, and repair of existing serviceable agricultural structures, facilities, or improved areas. 4. “Alteration” means a human-induced action that changes the existing conditions of a critical area or its buffer and results in the modification of the existing topography, stability, vegetation, hydrology, wildlife or wildlife habitat. 5. “Alteration, structure” means a change, modification or adjustment. 6. “Anadromous fish” means fish whose life cycle includes time spent in both salt and fresh water. 7. “Applicant” means a person, corporation, or organization that files an application for a land use or development permit with the city and that is either the owner of the land on which that proposed activity would be located, or the authorized agent of such a person. 8. “Aquifer recharge protection area” means a portion of a development site comprised of native or equivalent vegetation in which existing vegetation, topography and supporting soils are free of development, uses or activities detrimental to the aquifer recharge of the total site area. 9. “Arborist” means an individual engaged in the profession of arboriculture who, through experience, education, and related training, possesses the competence to Page 9 of 21 provide for or supervise the management of trees and other woody plants. Must be concurrently an International Society of Arboriculture (ISA) certified arborist to perform any role required of a certified arborist. 10. “Arborist, ISA certified” means an arborist holding a current International Society of Arboriculture (ISA) certified arborist credential. 11. “Arborist, tree risk assessment qualified (TRAQ)” means an arborist who has successfully completed the International Society of Arboriculture (ISA) TRAQ training course and assessment and holds a valid ISA TRAQ credential. 12. “Bank stabilization” means modification used for the purpose of preventing erosion, protecting channels, and retaining uplands. 13. “Biodiversity areas and corridors” means areas of habitat that are relatively important to various species of native fish and wildlife. a. Biodiversity Areas. i. The area has been identified as biologically diverse through a scientifically based assessment conducted over a landscape scale (e.g., ecoregion, county- or city-wide, watershed, etc.). Examples include but are not limited to WDFW local habitat assessments, Pierce County biodiversity network, and Spokane County’s wildlife corridors and landscape linkages; or ii. The area is within a city or an urban growth area (UGA) and contains valuable fish or wildlife habitat and is mostly comprised of native vegetation. Relative to other vegetated areas in the same city or UGA, the mapped area is vertically diverse (e.g., multiple canopy layers, snags, or downed wood), horizontally diverse (e.g., contains a mosaic of native habitats), or supports a diverse community of species as identified by a qualified professional who has a degree in biology or closely related field and professional experience related to the habitats or species occurring in the biodiversity area. These areas may have more limited wildlife functions than other priority habitat areas due to the general nature and constraints of these sites in that they are often isolated or surrounded by highly urbanized lands. b. Corridors. Corridors are areas of relatively undisturbed and unbroken tracts of vegetation that connect fish and wildlife habitat conservation areas, priority habitats, areas identified as biologically diverse, or valuable habitats within the city. 14. “Best available science” (BAS) means scientifically valid information derived in accordance with WAC 365-195-900 through 365-195-925, or as amended, that is used to develop and implement critical areas policies or regulations. 15. “Best management practices” (BMPs) means conservation practices or systems of practices and management measures that: Page 10 of 21 a. Control soil loss and protect water quality from degradation caused by nutrients, animal waste, toxins, and sediment; b. Minimize adverse impacts to surface water and groundwater flow, and to the chemical, physical, and biological characteristics of critical areas; c. Protect trees, vegetation and soils designated to be retained during and following site construction and use native plant species appropriate to the site for revegetation of disturbed areas; and d. Provide standards for proper use of chemical herbicides within critical areas. e. BMPs are defined by the United States Department of Agriculture, the State of Washington Department of Agriculture, the Washington State Department of Ecology, Washington State Department of Health, Kitsap conservation district, and other professional organizations. 16. “Bog” means a low-nutrient, acidic wetland with organic soils and characteristic bog plants, as described in Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-29, October 2014). 17. “Buffer” means a designated area contiguous to a wetland or stream intended to protect the wetland or stream and be an integral part of the wetland or stream ecosystem. 18. “Coppicing” means managing of strongly regenerative species of trees and shrubs by an initial heading cut (leaving a stump) and allowing new shoots to grow to maintain live roots. Shoots may be reduced to their point of origin at appropriate intervals of time without disturbing the resulting coppice head (stump). 19. “Critical aquifer recharge area” means areas with a critical recharging affect on aquifers used for potable water, including areas where an aquifer that is a source of drinking water is vulnerable to contamination that would affect the potability of the water, or is susceptible to reduced recharge. 20. “Critical areas” means aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands. 21. “Critical facilities” means facilities that are essential to the health and welfare of the community, including services that protect life and property. Such facilities include, but are not limited to, hospitals, emergency clinics, police and fire stations, emergency vehicle and equipment storage facilities, emergency operations centers, aviation control centers, and utility facilities such as sewage treatment plants and electric transmission substations. 22. “Critical habitat” means a habitat identified by U.S. Fish and Wildlife Service or the National Marine Fisheries Service as habitat necessary for survival of endangered or threatened species. Page 11 of 21 23. “Cutting, vegetation” means the removal of the main trunk or stem of a small tree for the purposes of controlling aggressive or weedy species. 24. “Designated centers” means those areas of the Island referred to as Winslow, Lynwood Center, Island Center, Rolling Bay, Day Road and Sportsman Triangle and shown on Figure LU-3 in the city’s 2017 comprehensive plan. 25. “Development” means any action that would require land use review or other approval from the city or other local, state or federal jurisdiction. “Development” includes, but is not limited to: land division; construction, reconstruction, structural alteration, relocation, or enlargement of any structure; clearing or grading; and changes to surface or groundwaters. 26. “Development area” means the area of land disturbing activity on a site. 27. “Director” means the director of the city’s planning and community development department or his/her designee. 28. “Educational or scientific activities” means controlled and/or supervised scientific activities or educational activities that are associated with an educational or scientific program that result in no adverse impacts to critical areas or their buffers. 29. “Engineering geologist” means a practicing engineering geologist who has at least four years of professional employment as an engineering geologist with experience in landslide evaluation, and a Washington State specialty license in engineering geology as specified in Chapter 18.220 RCW. 30. “Erosion hazard area” means those areas containing soils which, according to the United States Department of Agriculture Natural Resource Conservation Service Soil Survey Program, may experience significant erosion. Erosion hazard areas also include coastal erosion-prone areas and channel migration areas. 31. “Estuarine, wetland” means a vegetated wetland that is predominantly tidal, as described in Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-29, October 2014). 32. “Existing development” means a development that was lawfully constructed, approved or established prior to the effective date of the ordinance codified in this chapter. 33. “Fish” means species of the vertebrate taxonomic groups Cephalospidomorphi and Osteichthyes. 34. “Fish and wildlife habitat conservation areas” means areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the Page 12 of 21 ecosystem and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. “Fish and wildlife habitat conservation areas” does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of, and are maintained by, a port district or an irrigation district or company. 35. “Fish habitat” means habitat which is used by any fish at any life stage at any time of the year, including potential habitat likely to be used by fish which could be recovered by restoration or management and includes off-channel habitat. 36. “Fisheries biologist” means a person with experience and training in fisheries who is able to submit substantially correct reports on fish population surveys, stream surveys and other related data analyses of fisheries resources. “Substantially correct” means that technical or scientific errors, if any, are minor and do not delay or affect the site plan review process. Qualifications of a fisheries biologist include: a. Either: i. Certification by the American Fisheries Society; or ii. Bachelor of Science degree in fisheries or the biological sciences from an accredited institution and five years of professional fisheries experience; and b. The prior successful completion of at least three habitat management plans. 37. “Frequently flooded areas” means lands subject to at least a one percent or greater chance of flooding in any given year, or within areas subject to flooding due to high ground water. These areas include, but are not limited to, streams, lakes, coastal areas, wetlands and areas where high ground water forms ponds on the ground surface. (See Chapter 15.16 BIMC, Flood Damage Prevention.) 38. “Functions and values” means the natural processes and beneficial roles performed or provided by critical areas including, but not limited to, water quality and quantity protection and enhancement, providing fish and wildlife habitat, supporting terrestrial and aquatic food chains, providing flood storage, conveyance and attenuation, groundwater recharge and discharge, erosion control, wave attenuation, protecting aesthetic value, and providing recreational and educational opportunities. These roles are not listed in order of priority. 39. “Geologically hazardous areas” means areas susceptible to significant erosion, sliding, or other geological events. They pose a threat to the health and safety of citizens when used as sites for incompatible commercial, residential or industrial development. Geologically hazardous areas include erosion hazard areas, landslide hazard areas, and seismic hazard areas. Page 13 of 21 40. “Geotechnical engineer” means a practicing geotechnical/civil engineer who has a valid Washington engineering license and a valid certificate of registration in civil engineering, at least four years of professional employment as a geotechnical engineer with experience in landslide evaluation, and appropriate training and experience as specified in Chapter 18.43 RCW. 41. “Habitat management plan” (HMP) means a report prepared by a professional wildlife biologist or fisheries biologist which discusses and evaluates critical fish and wildlife habitat functions and identifies and evaluates measures necessary to maintain, enhance and improve terrestrial and/or aquatic habitat on a proposed development site. 42. “Habitat of local importance” means an area representing either high quality habitat for native terrestrial or aquatic species or habitat which is of limited availability, highly vulnerable to alteration, or provides landscape connectivity which contributes to the integrity of the surrounding landscape and which is not adequately protected by other city, state or federal policies, laws, regulations, or nonregulatory tools that prevent degradation of the habitat or its associated species. These may include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors such as breeding areas or human- made ponds. 43. “Hazard tree” means a tree that has significant structural defects that are likely to lead to failure and possibly cause injury or damage as identified in a report from an International Society of Arboriculture (ISA) tree risk assessment qualified (TRAQ) arborist. In the case of steep slopes, a hazard tree can also be a tree that is a hazard to stability of the slope, as determined by a geotechnical engineer. 44. “Hazardous substances” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics or criteria of hazardous waste as specified in RCW 70.105.010. 45. “Hedge” means a line of closely-spaced trees and/or shrubs intentionally planted and/or maintained along a property boundary or landscape border for privacy, screening, safety, or similar function, which typically requires ongoing pruning or shearing to maintain its intended function and/or reasonable use of nearby developed areas. 46. “Hydric soil” means soil which is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part. 47. “Hydrogeologist” means a practicing hydrogeologist who has at least four years of professional employment as a hydrogeologist with experience in the specific subject area in which they are providing a report, and a Washington specialty license in hydrogeology as specified in Chapter 18.220 RCW. Page 14 of 21 48. “Hydrophyte or hydrophytic vegetation” means plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. 49. “Invasive/exotic species” means (a) nonnative (or alien) to the ecosystem under consideration and (b) whose introduction causes or is likely to cause economic or environmental harm or harm to human health, or as amended by the United States Department of Agriculture National Invasive Species Information Center (NISIC). 50. “Land disturbing activity” means any activity that results in a change in the existing soil cover (both vegetative and nonvegetative) and/or the existing soil topography. Land disturbing activities include, but are not limited to, clearing, grading, filling and excavation. Compaction that is associated with stabilization of structures and road construction shall also be considered a land disturbing activity. Vegetation maintenance practices are not considered land disturbing activity. Stormwater facility maintenance is not considered “land disturbing activity” if conducted according to established standards and procedures. 51. “Land divisions” means any division of land subject to the city’s subdivision design standards (Chapter 17.12 BIMC). 52. “Landslide hazard areas” means areas which are at risk of mass movement due to a combination of geologic, topographic, and hydrologic factors. Landslide hazard areas include the following: a. Areas characterized by slopes greater than 15 percent having springs or groundwater seepage and having impermeable soils (typically silt and clay) overlain or frequently interbedded with permeable granular soils (predominantly sand and gravel); b. Any area potentially unstable due to rapid stream incision or stream bank erosion; c. Any area located on an alluvial fan, debris flow deposit, or in a debris flowpath, presently or potentially subject to impacts or inundation by debris flows or deposition of stream-transported sediments; d. Any area with a slope of 40 percent or greater and with a vertical relief of 10 or more feet except areas composed of competent consolidated rock; e. Any area designated or mapped as class U, UOS, or URS by the Department of Ecology Coastal Zone Atlas and/or mapped as a landslide or scarp on the USGS Surface Geology Map of Bainbridge Island (Haugerud, 2001). 53. “Landslide hazard area setback” means an area contiguous to a landslide hazard area sufficient in depth to meet the development standards set forth in BIMC 16.20.130 as determined by a geological hazards assessment prepared in accordance with BIMC 16.20.180, Critical area reports. 54. “Liquefaction” means a process in which a water-saturated soil, upon shaking, suddenly loses strength and behaves as a fluid. Page 15 of 21 55. “Low impact development (LID)” means a stormwater and land use management strategy that strives to mimic predisturbance hydrologic processes of infiltration, filtration, storage, evaporation and transpiration by emphasizing conservation, use of on-site natural features, site planning, and distributed stormwater management practices that are integrated into a project design. 56. “Low impact development best management practices (LID BMPs)” mean distributed stormwater management practices, integrated into a project design, that emphasize predisturbance hydrologic processes of infiltration, filtration, storage, evaporation and transpiration. LID BMPs include, but are not limited to: bioretention, rain gardens, permeable pavements, roof downspout controls, dispersion, soil quality and depth, minimal excavation foundations, vegetated roofs, and water reuse. 57. “Native or equivalent vegetation” means species which are indigenous to the Puget Sound lowlands ecoregion; or a species that is equivalent in providing the same site-specific functional arrays as would the native species. “Functional arrays” may include forage, floodwater restraint, hiding habitat, or other physical or biologic roles in the ecosystem, that singly or in combination correspond to those of the native species. As with natives, the role of an equivalent species may vary depending on the site and its surrounding ecosystem. Invasive/exotic species shall not be considered equivalent species. 58. “Natural pruning system” means a pruning system intended to maintain a tree’s characteristic growth pattern and adaptations that may allow for changes in appearance to achieve certain specified objectives per ANSI A300 (Part 1 – 2017). 59. “No net loss” means the maintenance of the aggregate total of the city’s critical areas functions and values over time. The no net loss standard requires that the impacts of a proposed use and/or development, whether permitted or exempt from permit requirements, be identified and mitigated on a project-by-project basis, so that as development occurs critical areas functions and values stay the same. 60. “Normal maintenance” means those usual acts to prevent a decline, lapse or cessation from a lawfully established condition. Normal maintenance does not include: a. Use of fertilizer or pesticide application in wetlands, fish and wildlife habitat conservation areas, or their buffers; b. Redigging ditches in wetlands or their buffers to expand the depth or width beyond the original ditch dimensions; c. Redigging existing drainage ditches to drain wetlands on lands not classified as existing and ongoing agriculture under BIMC 16.20.040 (Exemptions). 61. “Normal repair” means activities to restore a structure or use to a state comparable to original condition, including but not limited to size, shape, Page 16 of 21 configuration, location and external appearance, within a reasonable period after decay or partial destruction. 62. “Ordinary high water mark” means the mark on the shores of all waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters 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; provided, that in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining freshwater shall be the line of mean high water. 63. “Pollarding” means a pruning system that maintains crown size by initial heading of branches on young trees, followed by removal of shoots to their point of origin at appropriate intervals without disturbing the resulting pollarding head. 64. “Pruning” means the selective removal of plant parts to achieve defined objectives. 65. “Pruning amount” means the quantity of plant parts removed at one pruning, expressed in terms of a number of branches or other parts removed, and/or percentage of the crown or buds removed on an entire tree or specific branches. 66. “Ravine” means a V-shaped landform generally having little to no floodplain and normally containing steep slopes, which is deeper than 10 vertical feet as measured from the centerline of the ravine to the top of the slope. Ravines are typically created by the wearing action of streams. The top of the slope is determined where there is a significant change in the slope to generally less than a 15 percent slope. 67. “Reasonable alternative” means an activity that could feasibly attain or approximate a proposal’s objectives, but at a lower environmental cost or decreased level of environmental degradation. 68. “Reasonable use exception (RUE)” is a means of relief that is available for a property that is encumbered to such an extent by critical areas and/or critical area buffers that application of this chapter would deny all reasonable use of the subject property, as further defined by the decision criteria of BIMC 16.20.080. 69. “Redevelopment” means, on a site that is already substantially developed (i.e., has 35 percent or more of existing impervious surface coverage), the creation or addition of impervious surfaces; the expansion of a building footprint or addition or replacement of a structure; construction, installation or expansion of a building or other structure; replacement of impervious surface that is not part of a routine maintenance activity; and land disturbing activities. Page 17 of 21 70. “Removal, vegetation” means to eliminate the presence or hazard of unwanted vegetation. 71. “Seismic hazard areas” means areas subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, soil liquefaction, debris flows, or tsunamis. The following areas are considered seismic hazard areas: a. Seismic Landslide Hazard Areas. Slopes which are stable in nonearthquake periods, but fail and slide during ground shaking; b. Liquefaction Hazard Areas. Areas of cohesionless, loose or soft saturated soils of low density in association with a shallow groundwater table that are subject to settlement and/or liquefaction from ground shaking; or c. Fault Hazard Areas. Areas of known surface rupture or significant surface deformation as a result of an active fault movement, including 50 feet on either side. 72. “Shrub” means a woody perennial plant, usually with several stems that may be erect or close to the ground, generally smaller than a tree. 73. “Significant tree” means a deciduous tree greater than 12 inches in diameter at four feet high and an evergreen tree greater than 10 inches in diameter at four feet high. 74. “Site” means the entire lot, series of lots, or parcels on which a development is located or proposed to be located, including all contiguous undeveloped lots or parcels under common ownership. 75. “Species of local importance” means those species that are of local concern due to their population status or their sensitivity to habitat alteration. 76. “Streams” means those areas in the city of Bainbridge Island where the surface water flows are sufficient to produce a defined channel or bed. A defined channel or bed is an area which demonstrates clear evidence of the passage of water and includes but is not limited to bedrock channels, gravel beds, sand and silt beds, and defined-channel swales. The channel or bed need not contain water year round. This definition is not meant to include irrigation ditches, canals, storm or surface water runoff devices, or other artificial watercourses unless they are used by fish or used to convey streams naturally occurring prior to construction. 77. “Stream types” means a streams classification system based on fish usage and perennial or seasonal water regime as found in WAC 222-16-030 and meeting the standards listed below: a. “Type F stream” means a stream that has fish habitat. Waters having the following characteristics are presumed to meet the physical criteria for fish use: Stream segments having a defined channel of two feet or greater within the bankfull width and having a gradient of 16 percent or less. Also, stream segments having a defined channel of two feet or greater within the bankfull Page 18 of 21 width and having a gradient greater than 16 percent and less than or equal to 20 percent, and having greater than 50 acres in contributing basin size based on hydrographic boundaries. b. “Type Np” means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. “Perennial streams” are waters that do not go dry any time of a year of normal rainfall. However, for the purpose of water typing, Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. c. “Type Ns” means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an aboveground channel system to marine waters, Type F, or Np waters. 78. “Tree” means a woody perennial plant with single or multiple trunks, which typically develop a mature size of over several inches diameter, and 10 or more feet in height. 79 “Upgrade” means activities that involve replacement of existing infrastructure, or replacing equipment with equipment that meets different operational standards and/or adds capacity to the system. Upgrades shall not include expansions or extensions of existing infrastructure. 79 80. “Wetland” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include, but are not limited to, swamps, estuaries, marshes, bogs, ponds less than 20 acres, including their submerged aquatic beds and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, stormwater facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. “Wetlands” include those legally established artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. 80 81. “Wetland boundary” means the boundary or outer edge of a wetland as delineated in accordance with the federal wetland delineation manual and applicable regional supplements (as updated), as required by WAC 173-22-035. 81 82. “Wetland category” means category as defined in Washington State Wetland Rating System for Western Washington – 2014 Update (Ecology Publication No. 14-06-029, October 2014), or as revised and adopted by the department. Page 19 of 21 82 83. “Wetlands specialist” means a person with experience and training in wetland issues who is able to submit substantially correct reports on wetland delineations, classifications, functional assessments and mitigation plans. “Substantially correct” means that errors, if any, are minor and do not delay or affect the site plan review process. Qualifications of a wetlands specialist include: a. Either: i. Certification as a professional wetland scientist (PWS) or wetland professional in training (WPIT) through the Society of Wetland Scientists; or ii. Bachelor of Science degree in the biological sciences from an accredited institution and five years of professional field experience; and b. The prior successful completion of at least three wetland reports. 83 84. “Wildlife biologist” means a person with experience and training in the principles of wildlife management and with practical knowledge in the habits, distribution and environmental management of wildlife. Qualifications include: a. Either: i. Certification as a professional wildlife biologist through the Wildlife Society; or ii. Bachelor of Science or Bachelor of Arts degree in wildlife management, wildlife biology, ecology, zoology, or a related field from an accredited institution and five years of professional field experience; and b. The prior successful completion of at least three habitat management plans. 84 85. “Wildlife habitat” means a seasonal range or habitat element with which a given species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long-term. These include areas of relative density or species richness, breeding habitat, winter range, and movement corridors. These also include habitats of limited availability or high vulnerability to alteration, such as cliffs, streams and wetlands. 85 86. “Zone of influence” means an area, usually upslope from a geologically hazardous area, where changes in land use and hydrology can affect the stability of the geologically hazardous area. The “zone of influence” is defined as 300 feet upslope from slopes greater than 40 percent, and 200 feet upslope from slopes greater than 15 percent but less than 40 percent that are determined to be geologically hazardous areas. (Ord. 2018-01 § 2 (Exh. A), 2018) Section 6. Section 18.09.030.F.2 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 2. Utility, Primary. Page 20 of 21 a. Primary utility facilities and equipment are subject to standards in BIMC 16.12.030.C.7, Utilities (Primary and Accessory), and BIMC 16.20.130.C.11, critical areas regulations. b. Replacement, maintenance or upgrade of existing poles and equipment within or adjacent to an existing utility corridor or right-of-way is considered a permitted (“P”) use. A new pole added along an existing distribution or transmission line that is within 20 feet of the existing infrastructure and does not exceed the height of both adjacent poles is considered part of an upgrade to that utility corridor. New distribution or transmission line poles that exceed the height of both adjacent poles require minor conditional use approval. i. Replacement, maintenance or upgrade of a distribution utility pole or a transmission utility pole exceeding the height and/or location standards established in Table 18.12.040 Table 18.12.020-2 and Table 18.12.020-3 or moving more than 20 feet from the original location shall require minor site plan review minor conditional use approval in accordance with BIMC 2.16.040 prior to installing the replacement pole. Section 7. Table 18.12.020-2 of the Bainbridge Island Municipal Code is hereby amended as shown in Exhibit A. Section 8. Table 18.12.020-3 of the Bainbridge Island Municipal Code is hereby amended as shown in Exhibit B. Section 9. Table 18.12.040 of the Bainbridge Island Municipal Code is hereby amended as shown in Exhibit C. Section 10. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 11. This ordinance shall take effect and be in force five (5) days from its passage and publication as required by law. PASSED by the City Council this 24th day of September 2024. APPROVED by the Mayor this 24th day of September 2024. Joe Deets, Mayor Page 21 of 21 ATTEST/AUTHENTICATE: Christine Brown, MMC, City Clerk FILED WITH THE CITY CLERK: September 6, 2024 PASSED BY THE CITY COUNCIL: September 24, 2024 PUBLISHED: September 27, 2024 EFFECTIVE DATE: October 2, 2024 ORDINANCE NUMBER: 2024-04 Exhibit A to Ordinance No. 2024-04 EXCERPT Table 18.12.020-2 Standard Lot Dimensional Standards for Residential Zone Districts ZONING DISTRICT R-0.4 R-1 R-2 R-2.9 R-3.5 R-4.3 R-5 R-6 R-8 R-14 DIMENSIONAL STANDARD MAXIMUM BUILDING AND STRUCTURE HEIGHT [4] Note: Bonus may not be available in the shoreline jurisdiction All lots Base 30 ft. 30 ft. 25 ft. 30 ft. 35 Bonus for Nonresidential Uses If Conditional Use Permit Conditions Met 35 ft. 35 ft. 30 ft. 35 ft. 40 ft. 40 ft. See BIMC 18.12.030.B Distribution utility poles 55 feet in height above grade. Alternative height limits may apply if additional conditional use permit provisions of BIMC Title 2.16.050.F are met. See BIMC 18.09.030.F.2 for use standards. Transmission utility poles Up to a 25 percent increase above existing pole height above grade with a maximum height of 100 feet. Alternative height limits may apply if additional conditional use permit provisions of BIMC Title 2.16.050.F are met. See BIMC 18.09.030.F.2 for use standards. Exemption Alternative height limits may apply for nonresidential uses if additional conditional use permit provisions of BIMC Title 2 are met. Some encroachments through height limits are permitted under BIMC 18.12.040. Shoreline Jurisdiction See Table 16.12.030-2, Dimensional Standards Table, and BIMC 16.12.030.B.3.i, Regulations – Shoreline Structure Setback View Requirement. Exhibit A to Ordinance No. 2024-04 [4] For community and educational facilities (as listed in Table 18.09.020), spires, towers and other vertical features with horizontal cross- sections no more than five percent of the footprint of the primary structure may have a maximum height of 10 feet above the maximum base height, and shall be reviewed through a conditional use permit. Exhibit B to Ordinance No. 2024-04 EXCERPT Table 18.12.020-3 Standard Lot Dimensional Standards for Mixed Use Town Center and “Other” Zone Districts ZONING DISTRICT Winslow Mixed Use Town Center HSR I and II NC B/I WD-I DIMENSIONAL STANDARD Central Core Overlay Madison Avenue Overlay Ericksen Avenue Overlay Gateway Overlay Ferry Terminal Overlay [See BIMC 18.12.030.C] MAXIMUM BUILDING AND STRUCTURE HEIGHT [5] Note: Bonus may not be available in the shoreline jurisdiction Base 35 ft.; 25 ft. max. south of Parfitt 25 ft.; 35 ft. north of High School Road 25 ft. 35 ft. BIMC 18.12.030.C standard height north of Winslow Way; 35 ft. south of Winslow Way 35 ft. 35 ft. 35 ft. 35 ft. except that Chapter 16.12 BIMC applies within shoreline jurisdiction Bonus 1 if parking under building [6] 45 ft.; 35 ft. south of Parfitt 35 ft.; 45 ft. north of High School Road 35 ft. 45 ft. BIMC 18.12.030.C optional height north of Winslow Way; 45 ft. south of Winslow Way 45 ft. Bonus 2 for Nonresidential Uses with Major Conditional Use Permit 45 ft. 45 ft. 45 ft. Distribution utility poles 55 feet in height above grade. Alternative height limits may apply if additional conditional use permit provisions of BIMC Title 2.16.050.F are met. See BIMC 18.09.030.F.2 for use standards. Exhibit B to Ordinance No. 2024-04 Transmission utility poles Up to a 25 percent increase above existing pole height above grade with a maximum height of 100 feet. Alternative height limits may apply if additional conditional use permit provisions of BIMC Title 2.16.050.F are met. See BIMC 18.09.030.F.2 for use standards. Bonus 3 Structure Height Alternative height limits may apply if the conditional use permit provisions of BIMC Title 2 are met. Some encroachments through height limits are permitted under BIMC 18.12.040. [5] When property adjoins a lower density residential zone, except in the ferry terminal district, north of Winslow Way, for the first 30 feet of the building from the property line of an adjoining lower density residential zone, the building height shall be the building height of the adjoining lower density residential zone. Optional building height allowed in the adjoining lower density residential district through a conditional use permit may be requested for projects within the mixed use town center and high school road zones through the site plan review process. For building height requirements in the ferry terminal district, north of Winslow Way, reference BIMC 18.12.030.C. [6] The bonus height is available when parking is located underground or under the occupiable space of the planned building. If parking is located under 50 percent or less of the occupiable space, the bonus may only be used for a portion of the building footprint twice as large as the area with parking located beneath. [7] The bonus density is available when provisions of BIMC 18.21.050 are met and all bonus FAR is applied to the residential component of the mixed use development. Exhibit C to Ordinance No. 2024-04 EXCERPT Table 18.12.040: Permitted Setback/Height Modifications Type of Encroachment Encroachment Permitted Conditions Permitted Setback Modifications Fence or combined fence and berm up to 6 feet high In any required setback subject to applicable regulations in BIMC Title 15 Except as provided in BIMC 18.12.040.B and Chapter 16.12 BIMC Nonscreening fences or combined nonscreening fence and berm up to 8 feet high In any required setback subject to applicable regulations in BIMC Title 15 Except as provided in Chapter 16.12 BIMC Chimneys, flues, awnings, bay windows, and greenhouse windows Up to 18 inches into any required setback Covered porches, bay windows and eaves within the Ericksen Avenue overlay district Up to 5 feet into the front yard Bay windows must be cantilevered outward from the wall, and may not result in any portion of the building floor area extending into the setback Any structures, including but not limited to uncovered steps, porches, and decks less than or equal to 30 inches in height Up to 2 feet into front and side setbacks. Up to 5 feet into required rear setbacks. Exhibit C to Ordinance No. 2024-04 Eaves May extend up to 24 inches in any required setback except shoreline structure setback At or near grade structures such as uncovered patios, sidewalks, and driveways In any required setback May not exceed 4 inches in height Signs In any required setback Must conform to Chapter 15.08 BIMC Overhead or underground Primary Utilities and Aaccessory Uutilities when they are not the principal use of the site In any required setback, perimeter or roadside buffer Must conform to Chapters 16.12 and 16.20 BIMC. Does not apply to above ground utilities such as propane tanks. Composting bins In side or rear setback areas Bioretention/rain gardens In any required setback In accordance with Chapter 15.20 BIMC Rain barrels/cisterns In any required setback In accordance with Chapter 15.20 BIMC Wall-mounted on- demand hot water heaters Up to 18 inches into side or rear setbacks Permitted if buffered or enclosed to prevent noise impacts to neighboring properties Below-ground geothermal equipment In any required setback, perimeter or roadside buffer Must conform to Chapters 16.12 and 16.20 BIMC. Permitted Exhibit C to Ordinance No. 2024-04 if any excavated areas are promptly relandscaped after installation is complete. Rockeries and retaining walls less than 4 feet in height In any required setback Rockeries and retaining walls greater than 4 feet in height may be permitted with qualified geotechnical engineer determination, and city concurrence, that it is necessary for slope stabilization. Public communications tower In any required setback subject to applicable regulations in BIMC Title 15 Must conform to Chapters 16.12 and 16.20 BIMC Permitted Height Modifications Small wind energy generators Up to 18 inches above the maximum building height in the district Solar panels Up to 18 inches above the maximum building height in the district Noncommercial, nonparabolic antennas affixed to noncommercial communication towers Up to 50 feet in height above grade One flagpole per parcel Up to 45 feet in height above grade Exhibit C to Ordinance No. 2024-04 Public communications tower Up to 120 feet in height above grade A building permit is required for a public communications tower. A conditional use permit shall be required for a public communications tower to be constructed between 71 feet and 120 feet above grade. A public communications tower shall not exceed 120 feet in height. Distribution utility poles Up to 55 feet in height above grade Replacement poles over 55 feet in height, see BIMC 18.09.030.F.2.b. For new distribution utility facilities or corridors, see Table 18.09.020. Poles shall not be moved more than 20 feet from the original location unless permitted under BIMC 18.09.030.F.2.b. Transmission utility poles Up to a 25 percent increase above existing pole height above grade with a maximum height of 100 feet Replacement poles over the 25 percent increase or 100 feet in height, see BIMC 18.09.030.F.2.b. For new transmission utility facilities or corridors, see Table 18.09.020. Poles shall not be moved more than 20 feet from the original location unless permitted under BIMC 18.09.030.F.2.b. Utility structures existing on the effective date of the ordinance codified in this subsection Existing height May also be replaced or modified; provided, that the structure is not larger or taller than the original structure and is not moved more than 20 feet from its original location.