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ORD 2015-28 RELATING TO FLOOD DAMAGE PREVENTIONORDINANCE NO. 2015-28 AN ORDINANCE of the City of Bainbridge Island, Washington, relating to flood damage prevention, amending Sections 15.16.020, 15.16.030, 15.16.040, and 15.16.050 of the Bainbridge Island Municipal Code. WHEREAS, the City adopted a Comprehensive Plan on September 1, 1994, establishing goals and policies for flood damage prevention and codified those goals and policies in Chapter 15.16 of the Bainbridge Island Municipal Code ("BIMC") to protect against the loss of life, property, and health and safety hazards; and WHEREAS, in accordance with RCW 36.70A, the Growth Management Act, development regulations must be adopted that implement the Comprehensive Plan; and WHEREAS, in order to ensure Bainbridge Island's participation in the National Flood Insurance Program (NFIP), the City is required to administer and enforce the floodplain regulations contained in Chapter 15.16 BIMC, thereby enabling the Federal Emergency Management Agency (FEMA) to continue to allow flood insurance to be sold in the City; and WHEREAS, David Radabaugh, Floodplain Management Specialist from the Washington State Department of Ecology, met with City staff for a Community Assistance Visit to review City procedures for administrating and enforcing Chapter 15.16 BIMC; and WHEREAS, that Community Assistance Visit resulted in suggestions from the Washington State Department of Ecology to amend Chapter 15.16 BIMC in order to ensure City compliance with NFIP and state floodplain regulations; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. Section 15.16.020 of the Bainbridge Island Municipal Code is amended to read as follows: 15.16.020 Definitions. Unless specifically defined below, words or phrases used in this chapter shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application. A.B. "Area of shallow flooding" means a designated AO or AH Zone on the Flood Insurance Rate Map (FIRM). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. AO is characterized as sheet flow and AH indicates ponding. B.E. "Area of special flood hazard" means the land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year. Designation on map always includes the letters A or V. C. "Base flood" means the flood having a 1% chance of being equaled or exceeded in any given year (also referred to as the "100 -year food"). Desi tial d on the Flood Insurance Rate_Map by the letters A or V. D. "Basement" means any area of the building having its floor subgrade (below ground level) on all sides. E. "Breakaway wall" means a wall that is not part of the structural support of the building; and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supportin foundation system. F. "Coastal high hazard area" means an area of special flood hazard extendin from offshore to the inland limit of a primary frontal ([rine along, an open coast and any other area subject to high velocity wave action from storms or seismic sources. TI -ie area is designated on the Flood Insurance Rate Map as Zolle VJ-30, VE or V. EAG. "Critical facility" means a facility for which even a slight chance of flooding might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, installations which produce, use, or store hazardous materials or hazardous waste. F -.H. "Development" means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation, drilling operations or storage of equipment or materials located within the area of flood hazard. 1. "Elevated building" ans for insurance purposes, a non -basement building, that has its lowest elevated floor raised above ground level by foundation walls, shear walls, post, piers, pilings, or columns. J. "Elevation Certificate" means the official farm (FE -MA Form 8.1_-31) used to track development, provide elevation information necessary_ to ensure compliance with community floodplain management ordinances, and determine the proper insurance premium rate with Section B completed by community officials. G -:K. "Flood" or "flooding" means a general and temporary condition of partial or complete inundation of normally dry land areas from: 1. The overflow of inland or tidal waters; and/or 2. The unusual and rapid accumulation or runoff of surface waters from any source. 2 ISL. "Flood Insurance Rate Map" or "(FIRM)" means the official map on which the Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. L.M. "Flood Insurance Study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary- floodway map, and the water surface elevation of the base flood. -J.-N. "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. O. "Increased cost of compliance" or "ICC" means a flood insurance claim payinent of tip to `30,000 made directly to a property owner for the cost to comply with floodplain manag_einent regulations alter a direct physical loss caused by a flood. Eligibility for an ICC claim can be through a single instance of"substantial damage" or as a result of a "cumulative substantial damage." ISP. "Lowest floor" means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood- resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this chapter. &Q "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes the term "manufactured home" does not include park trailers, travel trailers, and other similar vehicles. M R. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. N -.S. "New construction" means structures for which the start of construction commenced on or after the effective date of the ordinance codified in this chapter. O -T. "Recreational vehicle" means a vehicle: 1. Built on a single chassis; 2. Four hundred square feet or less when measured at the largest horizontal projection; 3. Designed to be self-propelled or permanently towable by a light duty truck; and 3 4. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel or seasonal use. € U. "Start of construction" includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, tile_ actual start of construction mcajis the first alteration of any wall ceiling, floor, or other structural part of a buildings whether or not that alteration affects the external dimensions of the building. Q -.V. "Structure" means a walled and roofed building including a gas or liquid storage tank that is principally above ground. W. "Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring; the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. R—X. "Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: 1. Before the improvement or repair is started; or 2. If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: Any project for improvement of a structure toal'° solely neeessa:ryto aa: -safe living correct nre-cited existing violations of state or local health, sanitary, or safety code specifications which have been previously identified by the local code enforcement official and which are the minimum necessary to ensure safe living conditions; or 2. Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places. 8-.Y. "Variance" means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter. T -.Z. "Water dependent" means a structure for commerce or industry which cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations. Section 2. Section 15.16.030.13 of the Bainbridge Island Municipal Code is amended to read as follows: B. Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled, "The Flood Insurance Study for Kitsap County and Incorporated Areas" dated November 4, 2010, with accompanying Flood Insurance Maps and any revisions thereto, is adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file at the office of the city clerk. The best available inforn-iation for flood hazard area identification as outlined in BIMC 15.16.040.D.2 shall be the basis for ret;ulation._until a new FIRM is issued that incorporates data utilized under BIMC 15.16.040.D.2. Section 3. Section 15.16.040.E of the Bainbridge Island Municipal Code is amended to read as follows: E. Variance Procedure. 1. Appeal Board. a. Pursuant to BIMC 2.16.100, the hearing examiner shall hear and decide appeals and requests for variances from the requirements of this chapter, and appeals alleging error in any requirement, decision, or determination made by the building official in the enforcement or administration of this chapter. b. The decision of the hearing examiner shall be final unless, within 21 days after issuance, it is appealed in accordance with Chapter 36.70C RCW. c. In passing upon such applications, the applicable city official or appeal entity shall consider all technical evaluations, all relevant factors, standards specified in other sections of this chapter, and: i. The danger that materials may be swept onto other lands to the injury of others; ii. The danger to life and property due to flooding or erosion damage; E iii. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; iv. The importance of the services provided by the proposed facility to the community; v. The necessity to the facility of a waterfront location, where applicable; vi. The availability of alternative locations for the proposed uses which are not subject to flooding or erosion damage; vii. The compatibility of the proposed use with existing and anticipated development; viii. The relationship of the proposed use to the comprehensive plan and floodplain management program for that area; ix. The safety of access to the property in times of flood for ordinary and emergency vehicles; x. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and xi. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges. d. Upon consideration of the above factors and the purposes of this chapter, the applicable official or city entity may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter. e. The building official shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request. 2. Conditions for Variances. a. Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subsections E.l.c.i through E.I.c.xi of this section have been fully considered. As the lot size increases, the technical justification required for issuing the variance increases. b. Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places that will not preclvide the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure without regard to the procedures set forth in this section. c. Variances shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result. Co d. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. e. Variances shall only be issued upon: i. A showing of good and sufficient cause; ii. A determination that failure to grant the variance would result in exceptional hardship to the applicant; iii. A determination that the granting of a variance will not result in increased expense, create nuisances, cause fraud on or victimization of the public as identified in subsection E. Lc of this section, or conflict with existing local laws or ordinances. f. Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare. g. Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry-floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except subsection (2)(a) of this section, and otherwise complies with BIMC 15.16.050. h. Any applicant to whom a variance is granted shall be given written notice, signed by the building, o['licial, that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. Section 4. Section 15.16.050.0 of the Bainbridge Island Municipal Code is amended to read as follows: C. Utilities. 1. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system. Water wells shall be located on high ground that is not in the floodway; 2. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into floodwaters; and 3. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5. Section 15.16.050.F.3 of the Bainbridge Island Municipal Code is amended to read as follows: 7 3. Critical Facility. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the base floodplain. Construction of new critical facilities shall be permissible within the base floodplain if no feasible alternative site is available. Critical facilities constructed within the base floodplain shall have the lowest floor elevated to three feet or more above the level of the base flood elevation at the site or to the height of the 500- ear flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the base floodplain shall be provided to all critical facilities to the extent possible. Section 6. Section 15.16.050 of the Bainbridge Island Municipal Code is amended to add the following sections following Section 15.16.050.H: 1. Habitat Impact Assessment. Unless allowed under 131MC 15.16.050.x a permit application to develop in the regulatory floodplain shall include an assessment of the impact of the pyoject on federal state or locally protected species and habitat water duality and aquatic and riparian habitat. The assessment shall be performed by a qualified professional as defined by BIMC 16.20. The assessment shall be: 1. A biological evaluation or biolo ical assessment developed per 50 QFR 402.12 to initiate federal interagency consultation under Endan =egered Species Act Section 7(a)(2) 2. Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or 3. Documentation that the activit fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act, where any such assessment has been prepared or is otherwise made availably or 4. An assessment prepared in accordance with Floodplain Habitat Assessment and Mitigation Draft Regional Guidance. 201 l , FEMA Region 10. The assessment shall determine if the project would adversely affect: a. Species that are federal state, or local listed as threatened or e_ndang,ered, b. Therp imary constituent elements for critical habitat, _ when designated, c. Essential fish habitat designated by the National Marine Fisheries Service (NMFS), d. Fish and wildlife habitat conservation areas e. Other protected area: and elements necessM t'or specie conservation. ,i. Habitat Mitigation flan. 1. If the assessment conducted under subsection I of this section concludes the project is expected to have an adverse effect on water equality and/or aquatic or ri aritm habitat or habitat functions flie applicant shrill arovidc a plan to mitigate those impacts, in accordance with Floodplain Habitat Assessment and Mitigation Draft Re ioval Guidance, 2011, FEMA Re ion n 10. a. If the USFWS or NMFS issues an incidental take pennit under Section 10 of the Endangered Species Act,_ur biological opinion under this section, the permit can be considered to qualify as a plan to mitigate those impacts. b. If the project is located outside the protected area, the mit ation Calan shall include such avoidance, minimization, restoration, or compensation measures so that indirect adverse effects of development in the floodplain ,effects to stormwater, riparian vegetation, bank stability, channel migration, hyporheic zones, wetlands, large woody debris, etc.) are mitigated such that equivalent or better habitat protection is provided. c. No new stream crossings are allowed outside the protected area unless approval has been obtained as stated in subsection J. La. of this section. d. If the project is located in the protected area, the mitigation plan shall stipulate avoidance measures as are needed to ensure that there is no adverse effect dewing any_plrase of the project. 2. Theplan's habitatmitigation ation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components. 3. As required in BIMC 15.16.040, the building official shall not issue a certification of use or a certificate of occupancy until all work identified in the habitat assessment and mitigation plan has been completed or the applicant has provided the necessary assurance that unfinished portions of the project will be completed, in accordance with BIMC 15.16.030.E. K. The following activities do not require the habitat impact assessment required under BIMC. 15.16,050.1, provided that all other requirements are met, including federal, state, and local requirements: ^ 1. Repair or remodel of an existing structure, if the repair or remodel is not a substantial improvement or a repair of substantial damage. 2. Expansion of an existing ,structure that is not greater than 10 percent beyond its existing footprint; provided, that the repair or remodel is not a substantial improvement or a repair of substantial damage. This measurement is counted cumulatively from September 22, 2011. 3. Activities with the sole purpose of creating, restoring, or enhancing natural functions associated with floodplains streams lakes estuaries, marine areas, habitat, and riparian areasprovided the activities do not include structures, grading, fill, or impervious surfaces. 4. Development of open space and recreational facilities, such as parks and trails, that do not include structures, fill, impervious surfaces or removal of more than five percent of the native vegetation on that portion of the property in the reatlatory floodplain. S. Repair to on-site septic systems provided the ground disturbance is the minimal necessary, 6. Alterations in response to emergencies which threaten the public health, safety and welfare or which pose an imminent risk of damage to private property consistent with the requirements of BIMC 16.12.060.B. 7. Routine maintenance of landscaping that does not involve gradin excavation, or filling. 8. Removal of noxious weeds and replacement of nonnative vegetation with native vegetation provided no earth movement occurs. 9. Removal of hazard trees consistent with the requirements of BIMC 18.15.010, Chapter 16.18 BIMC, and BIMC 16.12.030, 10. Normal maintenance of structures, such as reroofing and replacing siding, provided such work does not qualify as a substantial improvement. 11. Normal maintenance of above -p -round utilities and facilities, such as replacing downed power lines and utility poles. 12. Normal street and road maintenance, including filling potholes. repaving.. and lnstallingsigns and traffic sumpals, but not including expansion of paved areas. 13. Normal maintenance of a_levee or other flood control facility_ prescribed in the operations and maintenance plan for the levee or flood control facility are allowed in the regulatory floodplain without need for a floodplain development permit. Normal maintenance does not include repair from flood damage, expansion of the prism, expansion of the face or toe or addition for protection on the face or toe with rock armor. 14. Normal maintenance, operation or repair of publicly improved recreation areas as lop as as any such activity does not include expansion of uses and/or facilities into a previously unimproved portion of the re u�ry floodplain and is consistent with the standards of Chapter 16.20 BIMC Critical Areas, best available science or adaptive management Plans as recognized by the city. 10 IS. Site investigative work and studies necessM for preparing land Use applications. Section 7. To the extent that the requirements set forth in the provisions of this ordinance amending or adding sections to the Bainbridge Island Municipal Code are inconsistent with requirements set forth in other City code provisions, the requirements set forth in this ordinance shall supersede the requirements in the other City code provisions. Section 8. This ordinance shall take effect on and be in force five days from and after its passage, approval, and publication as required by law. PASSED BY THE CITY COUNCIL this 22"0 day of September, 2015. APPROVED BY THE MAYOR this 22nd day of September, 2015. Anne S. Blair, Mayor ATTEST/AUTHENTICATE: Rosalind D. Lassoff, City Clerk FILED WITH THE CITY CLERK: September 10, 2015 PASSED BY THE CITY COUNCIL: September 22, 2015 PUBLISHED: September 25, 2015 JEFFECTIVE DATE: September 30, 2015 ORDINANCE NO: 2015-28 11