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ORD 18-856ORDINANCE NO. 18-856 AN ORDINANCE of the City of Federal Way, Washington, relating to floodplain development and permitting processes within the City; amending FWRC 19.142.040, 19.142.050, 19.142.060; and repealing Chapter 15.15 FWRC. (Amending Ordinance Nos. 06-536, 09-593, and 09-597.) WHEREAS, the City recognizes the need to periodically modify Title 19 of the Federal Way Revised Code ("FWRC"), "Zoning and Development Code," in order to conform to state and federal law, codify administrative practices, clarify and update zoning regulations as deemed necessary, and improve the efficiency of the regulations and the development review process; and WHEREAS, this ordinance, containing amendments to development regulations and the text of Title 19 FWRC, has complied with Process VI review, Chapter 19.80 FWRC, pursuant to Chapter 19.35 FWRC; and WHEREAS, it is in the public interest for the City Council to adopt amended development regulations for Chapter 19.142 FWRC regarding development within frequently flooded areas; and WHEREAS, the State developed new language regarding flood prevention that has not been incorporated into Chapter 19.142 FWRC; and WHEREAS, the State Department of Ecology, through its Community Assistance Visit, informed the City that the new State language needed to be added to the chapters of the FWRC that regulate development within the areas designated as floodplains by the Federal Emergency Management Agency ("FEMA"); and Ordinance No. 18-856 Page I of 13 WHEREAS, the absence of such language necessitates amendment to the FWRC to incorporate the State -required language; and WHEREAS, Chapters 15.15 and 19.142 FWRC are identical, and such duplication is not necessary and has the potential to create inconsistencies when those chapters are amended in the future; and WHEREAS, the repeal of Chapter 15.15 FWRC eliminates the duplicative chapter; and WHEREAS, the Planning Commission conducted public discussion of these code amendments on June 20, 2018; and WHEREAS, an Environmental Determination of Nonsignificance ("DNS") was properly issued for the Proposal on September 13, 2018, and no comments or appeals were received and the DNS was finalized on September 27, 2018; and WHEREAS, the Planning Commission properly conducted a duly noticed public hearing on these code amendments on September 19, 2018 and forwarded a recommendation of approval to the City Council as follows: (1) repeal Chapter 15.15 FWRC; (2) amend FWRC 19.142.040 by adding and amending definitions for "Development" and "Start of Construction"; (3) amend FWRC 19.142.050 by changing the reference to the correct flood study title; (4) amend FWRC 19.142.060 to indicate that the section is related to floodplain development permits and to identify those activities that do not require a floodplain development permit; and (5) amend FWRC 19.142.060 by adding required actions that must be accomplished in order to receive a floodplain development permit, including identifying conditions under which a habitat impact assessment must be performed, and when a habitat mitigation plan must be completed; and Ordinance No. 18-856 Page 2 of 13 WHEREAS, the Land Use & Transportation Committee of the Federal Way City Council considered these code amendments on October 1, 2018, and recommended adoption of the text amendments as recommended by the Planning Commission. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings. The City Council of the City of Federal Way makes the following findings with respect to the proposed amendments: (a) These code amendments are in the best interest of the residents of the City and will benefit the City as a whole by clarifying requirements of State regulation and correcting textual duplication within the Code that will mitigate the need for interpretation when reviewing projects proposed within the identified floodplain. (b) These code amendments comply with Chapter 36.70A RCW, Growth Management. (c) These code amendments are consistent with the intent and purpose of Title 19 and Title 15 FWRC and will implement, and are consistent with, the applicable provisions of the Federal Way Comprehensive Plan. (d) These code amendments bear a substantial relationship to, and will protect and not adversely affect, the public health, safety, and welfare. (e) These code amendments have followed the proper procedure required under the Federal Way Revised Code. Section 2. Conclusions. Pursuant to Chapter 19.80 FWRC and Chapter 19.35 FWRC, and based upon the recitals and the findings set forth in Section 1, the Federal Way City Council Ordinance No. 18-856 Page 3 of 13 makes the following Conclusions of Law with respect to the decisional criteria necessary for the adoption of the proposed amendments: (a) The proposed FWRC amendments are consistent with, and substantially implement, the following Federal Way Comprehensive Plan goals and policies: Goals: NEG 1 To preserve the City's natural systems in order to protect public health, safety, and welfare, and to maintain the integrity of the natural environment. NEP4 The City will continue to work with internal departments, state and regional agencies, neighboring jurisdictions, and tribes to protect environmentally critical areas and the City's natural environment. NEP6 Mitigation sequencing steps, which begin with avoiding impacts altogether by not taking certain action or parts of an action, should be applied to all projects where impacts to environmentally critical areas are proposed. NEP7 Implement and periodically update environmentally critical area regulations consistent with Best Available Science while also taking into consideration the City's obligation to meet urban -level densities and other requirements under the GMA. NEG6 To prevent the loss of life, property, and habitat in frequently flooded areas. NEP41 New improvements should not be located in floodplains unless fully mitigated via best building practices within areas of special flood hazard, shallow flooding, coastal high hazard, and floodways. FWCP — Chapter Nine, Natural Environment Revised 2015 IX -10 NEP42 Any approved construction should follow the mitigation recommendations of a Habitat Assessment report. (b) The proposed FWRC amendments bear a substantial relationship to the public health, safety, and welfare because they provide clarification and additions to the sections of the Ordinance No. 18-856 Page 4 of 13 Code designed to prevent flood damage to life and property located in identified floodplains within the City of Federal Way. (c) The proposed amendments are in the best interest of the public and the residents of the City of Federal Way because they eliminate a duplication within the Code, which can result in inconsistent implementation when amendments are made to such sections within the Code, and provide greater safety, clarity, and certainty to applicants wishing to develop projects within floodplains. Section 3. Chapter 15.15 of the Federal Way Revised Code is hereby repealed. Section 4. FWRC 19.142.040 is hereby amended to read as follows: 19.1.42.040 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. Terms not defined here are defined according to Chapter 19.05 or 16.05 FWRC or FWRC 1.05.020 in that order. "Actual start of'construction " 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, 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 foundations 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. "Actual start of construction," for a substantial improvement, means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building. "Appeal" means a request for a review of the interpretation of any provision of this chapter or a request for a variance. "Area of shallow flooding" means designated as AO or AH zone on the flood insurance rate map (FIRM). AO zones have base flood depths that range from one to three feet above the natural ground; 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; AH indicates ponding, and is shown with standard base flood elevations. Ordinance No. 18-856 Page 5 of 13 "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 maps always includes the letters A or V. "Base flood " means the flood having a one percent chance of being equaled or exceeded in any given year (also referred to as the "100 -year flood"). Designated on flood insurance rate maps by the letters A or V. "Basement" means any area of the building having its floor sub -grade (below ground level) on all sides. "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 supporting foundation system. "Coastal high hazard area " means an area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. The area is designated on the FIRM as zone VI -30, VE or V. "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, and installations which produce, use, or store hazardous materials or hazardous waste. "Development" means any man-made change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavations, drilling operations, or storage of equipment or materials located within the area of special flood hazard. "Director" means the director of the city of Federal Way community development department or his or her designee. "Elevated building" means, for insurance purposes, a nonbasement building that has its lowest elevated floor raised above ground level by foundation walls, shear walls, post, piers, pilings, or columns. "Elevation certificate" means the official form (FEMA Form 81-31) 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 Federal Way. "Existing manufactured home park or subdivision " means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the Ordinance No. 18-856 Page 6 of'] 3 manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the adopted floodplain management regulations. "Expansion to an existing manufactured home park or subdivision" means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). "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 aerumutation of runoff of surface waters from any source. "Flood insurance rate map (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. "Flood insurance study (FIS) " 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. "Floodway" means the chamiel 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. "Lowest floor" means the lowest enclosed area (including basement), except that where 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 built in compliance with the applicable non - elevation design requirements of FWRC 19.142.140(t)(b), the next lowest enclosed area is the lowest floor. "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 attached to the required utilities, but does not include a recreational vehicle. "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. "New construction " means structures for which the "start of construction" commenced on or after the effective date of the ordinance codified in this chapter. Ordinance No, 18-856 Page 7 of 13 "New manufactured home park or subdivision " means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of adopted floodplain management regulations. "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 pennanently towable by a light duty truck; and (4) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. "Start of construction " includes substantial improvement, and means the date the building permit was issued, where the actual start of construction, repair, reconstruction, placement or other improvement occurs within 180 days of the permit date. See also "actual start of construction." "Structure" means a walled and roofed building, including a gas or liquid storage tank that is principally above ground. "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. "Substantial improvement" means any improvement of a stricture, including any repair or reconstruction, where the cost of the improvement equals or exceeds 50 percent of the market value of the structure either before the improvement is started or, if the structure has been damaged and is being restored, before the damage occurred. Substantial improvement does not include: any project for improvement of a structure to correct pre -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 assure safe living conditions; or any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places. Substantial improvement begins 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. Ordinance No. 18-856 Page 8 of 13 "Variance" means a grant of relief from the requirements of this chapter that permits construction in a manner that would otherwise be prohibited by this chapter. "Water -dependent" means a structure for commerce or industry that cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations. Section 5. FWRC 19.142.050 is hereby amended to read as follows: 19.142.050 General provisions. (1) Application of chapter. This chapter shall apply to all areas of special flood hazards within the jurisdiction of Federal Way. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled "The Flood Insurance Study for FederalWay King County, Washington and Incorporated Areas" dated May 16, 1995, and any revisions thereto, with an accompanying flood insurance rate map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this chapter. The flood insurance study and the FIRM are on file at Federal Way City Hall. The best available information for flood hazard area identification as outlined in FWRC 19.142.070 shall be the basis for regulation until a new FIRM is issued that incorporates data utilized under FWRC 19.142.070. (2) Penalties for noncompliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. (3) Summary abatement. Whenever any violation of this chapter causes or creates a condition which constitutes or contributes to an immediate and emergent threat to the public health, safety or welfare or to the environment, the director may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after abatement. The costs of such summary abatement shall be recoverable via procedures for recovery of abatement costs as set forth in Chapter 1.15 FWRC, Civil Enforcement of Code. (4) Abrogation and greater restrictions. This chapter is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this chapter and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (5) Interpretation. In the interpretation and application of this chapter, all provisions shall be: (a) Considered as minimum requirements; (b) Liberally construed in favor of the governing body; and Ordinance No. 18-856 Page 9 of 13 (c) Deemed neither to limit nor repeal any other powers granted under state statutes. (6) Warning and disclaimer of liability. The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This chapter does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of Federal Way, any officer or employee thereof, or the Federal Insurance Administration for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder. Section 6. FWRC 19.142.060 is hereby amended to read as follows: 19.1.42.060 Development Activities Subiect to Floodplain Development Permits. (1) Floodplain Ddevelopment permit required. A floodplain development permit shall be obtained before construction or development begins within any area of special flood hazard established in FWRC 19.142.050(1). The permit shall be for all structures including manufactured homes, as set forth in FWRC 19.142.040, and for all development including fill and other activities, also as set forth in FWRC 19.142.040. (2) Non -development Activities. Activities that do not meet the definition of "Development" in this chapter are allowed in the regulatory floodplain without the need for a floodplain development permit under this chapter, provided all other federal, state, and local requirements are met. The following are examples of activities not considered development or manmade changes to improved or unimproved real estate: (a) Routine maintenance of landscaping that does not involve grading, excavation, or fillip (b) Removal of noxious weeds and hazard trees and replacement of nonnative vegetation with native vegetation; (c) Normal maintenance of structures, such as re-roofingand replacing siding, as long as such work does not qualify as a substantial improvement; (d) Normal maintenance of above ground public utilities and facilities, such as replacing downed power lines; (e) Normal street and road maintenance, including filling potholes, repaving, and installing signs and traffic signals, but not including expansion of paved areas; and (f) Normal maintenance of a levee or other flood control facility prescribed in the operations and maintenance plan for the levee or flood control facility. Ordinance No. 18-856 Page 10 of 13 (3) Other Activities. All other activities not described in subsection (2) of this section are allowed, as long as a floodplain development permit is approved, and, if required, as long as such activities meet all the other requirements of this chapter and the other provisions of the FWRC. (24) Application for floodplain development permit. Application for a floodplain development permit shall be made and shall include, but not be limited to, plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of the area in question, existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing. Specifically, the following information is required: (a) Elevation in relation to mean sea level, of the lowest floor (including basement) of all structures recorded on a current elevation certificate (FEMA Form 81-31) with Section B completed by the city of Federal Way building official; (b) Elevation in relation to mean sea level to which any structure has been floodproofed; (c) Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet floodproofing criteria in FWRC 19.142.140(2); (d) Description of the extent to which a watercourse will be altered or relocated as a result of proposed development. (35) Designation of the administrator. The director or designee is hereby appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions. The director shall: (a) Review all development applications to determine that the requirements of this chapter have been satisfied; (b) Review all development applications to determine that all necessary permits have been obtained from those federal, state, or local governmental agencies from which prior approval is required; and (c) Review all development applications to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of FWRC 19.142.160(1) are met. (6) Project requirements. If the project is located in the regulatory floodplain and includes activities not listed in FWRC 19.142.060(2), the application shall include a habitat impact assessment completed by a professional biologist. If that assessment determines that impacts upon the habitat would result from the project, the application shall also include a habitat mitigation plan. The habitat assessment and the habitat mitigation plan shall be performed as described in FEMA's Regional Guidance for Floodplain Habitat Assessment and Mitigation in the Puget Sound Basin, 2013, and any revisions thereto. Ordinance No. 18-856 Page 11 of 13 (7) Third party review. For any habitat impact assessment or habitat mitigation plan, the city may require a third -party review. Third -party review requires the applicant's habitat impact assessment, habitat mitigation plan, and/or additional technical studies to be reviewed by n independent third -party, paid for by the applicant, but hired by the city. Third -party review shall be conducted by a qualified consultant as defined in the Floodplain Habitat Assessment and Mitigation Regional Guidance, FEMA Region X, 2010, and any revisions thereto. Section 7. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 8. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 9. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 10. Effective Date. This ordinance shall be effective five (5) days after passage and publication as provided by law. 2018. PASSED by the City Council of the City of Federal Way this 6th day of November, [signature page follows] Ordinance No. 18-856 Page 12 of 13 CITY OF FEDERAL WAY: FE ELL, MAYOR ATTEST: 4"tt- &"tvA S EP NIE COURTNEY, C, CITY CLERK APPROVED AS TO FORM: J. RYAN CALL, C'ItY ATTORNEY FILED WITH THE CITY CLERK: 10/10/2018 PASSED BY THE CITY COUNCIL: 11/06/2018 PUBLISHED: 11/09/2018 EFFECTIVE DATE: 11/14/2018 ORDINANCE NO.: 18-856 Ordinance No, 18-856 Page 13 of 13