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City of Yakima Planning Commission
STUDY SESSION
City Hall Council Chambers
Wednesday May 22, 2013
2:00 pm - 5:00 pm
YPC Members:
Chair Ben Shoval, Co -Chair Dave Fonfara, Ron Anderson, Al Rose,
Scott Clark, Paul Stelzer, Bill Cook
:.i Planning Staff:
Steve Osguthorpe, Community Development Director/Planning Manager; Bruce Benson, Supervising
Planner; Jeff Peters and Joseph Calhoun, Associate Planners; Chris Wilson, Assistant Planner; and
Rosalinda Ibarra, Administrative Assistant
Agenda
Announcement: This meeting is a study session on the City's Master Program in which the
general public is invited to participate and comment.
I. Call to Order
II. Roll Call
III. Approval of Minutes for the Meeting of February 13, 2013
IV. General Audience Participation Not Associated with an Item on the Agenda
V. Continuation: Discuss Shoreline Master Program Materials from Previous Meeting
VI. Shoreline Master Program Review:
• Task#1- Review Section 17.03.080 Development Standards
• Task#2 - Review Section 17.07.050 Dredging and Dredge Material Disposal
• Task#3 - Review Section 17.07.080 In -Water Structures
VII. Other Business
VIII. Adjourn to June 12, 2013
J
S,IGN-IN SHEET
�.
City of Yakima Planning Commission
City Hall Council Chambers
Wednesday May 22, 2013
2:00 p.m. — 5:00 p.m.
Study Session
PLEASE WRITE LEGIBLY
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Page 1
DRAFT CITY OF YAKIMA SHORELINE MASTER PROGRAM
YAKIMA SHORELINE MASTER PROGRAM
This document provides draft regulations for the following sections of City of Yakima Shoreline Master
Program (SMP) Update:
* Section 17.03.080 Development Standards
• Section 17.07.050 Dredging and Dredge Material Disposal
* Section 17.07.080 In -Water Structures
The base language is from the Yakima County Regional SMP (except for in -water structures), and then
amended with strikeout/ underline to be more consistent with City conditions or SMP Guidelines.
The draft sections should be read in conjunction with the following documents distributed to the
Planning Commission at prior meetings:
Preliminary Shoreline Environment Designations & Use and Modification Matrix Framework
(updated version distributed at 4/10 meeting)
Excerpts From Ecology's Shoreline Master Program Submittal Checklist (distributed at 3/27 meeting)
SMP Update Guidance — Consistency (distributed at 3/27 meeting)
17.03.080 Development Standards
Consultant Notes:
*Shoreline stabilization is in its own subsection (Section 17.07.150 Shoreline Stabilization) and is
removed from development standards below.
*The Shoreline Management Act generally has a limit of 35 feet in height unless there is an overriding
public interest — in this case we're proposing heights greater than 35 feet for essential public facilities or
public facilities that tend to have particular design needs (e.g. wastewater treatment facilities, bridges,
utilities).
*Last, SMP Guidelines indicate that development standards addressing density or lot dimensions are
appropriate towards managing growth in shorelines. To avoid conflict with the underlying zoning density
standards, we propose lot width and setbacks (based on zoning standards) as a way to get at level of
intensity and shoreline views rather than units per acre which is calculated on a whole lot basis rather
than split between shoreline jurisdiction and remainder of the lot.
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May 22, 2013
CITY OF YAKIMA SHORELINE MASTER PROGRAM
_"f4ke"' 43
DRAFT
9A.There shall be a thirty-five (35) foot maximum building height for all structures, except that
utility towers and poles, water treatment towers,
wastewater treatment facilities and bridges are not required to meet this standard, and specific
height limitations for residential structures are as follows. --
4400e,
B._MNnirnwn shorerne jq1j
ML'd.'L L'q!9LL1h9J Q110-w--irm-la-ki ho -reline I in _e(� environment:
L_A19_hLRt_e LISAL _1_sSe _nti a I P_UW!c 35 feet
Residential: 50 feet
!-!LrLaft-CO-r-ts-e-rv-a"-Ic-Y,-Ll-()-O-d-w-a-y&M—Z: 60 feet
c. Shoreline buffers: see Ymc 17m.m.
Q._MInknum structures .1005 irr sl orel r e unAdic_flonshall be consistent.
Nyfttj.the sande lyli)E -in 5 feet,
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27 05 GENERAIII, RIE"GUI A r1110NS
17.07.050 Dredging and Dredge Material Disposal
Consultant Note: Revisions to the County's SMP language below have been made to provide closer
compliance with the SMP Guidelines, including several verbatim additions.
The, f,94lf ;VW
Felated ffitkal aFea-
& Siting and design. Npw dPVP1nnrnant cknfl ka v;* 4 —A 4--,.-d1 to a—void or i
Possible, to minimize, the need, for new and maintenance dr no. J --not
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±dginRa ji d dred .... ge material dknmat ,hall ho done in a, manner which avoids or minimizes
significanj ecol.oeical i'lmi:)act!s&-aann,dgii,lim2AgI which canngt be avoide �ould be mit
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May 22, 2013
DRAFT CITY OF YAKIMA SHORELINE MASTER PROGRAM
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3. -Maintenance S.
L--Ke_ductlon of floo-ct, hazard
neces,sair for the re tortion of
is to be
C71F. Disposal of channel miergion zone is
Condi ion;al
into the flo el where it ddoes, not
4)-JEfflEgEt2og:
intended
&G.Hydraulic dredging or other techniques that minimize the dispersal and broadcastof bottom |
materials shall bepreferred over agitation forms ofdredging. ^
-F-H.Curtains and other appropriate mechanisms shall be used to minimize widespread dispersal of |
sediments and other dredge materials.
i Dredge spoils are also considered fi|[ and shall not be deposited within the stream except
where such deposit isinaccordance with approved procedures intended topreserve or
May 22, 2013
CITY OF YAKIMA SHORELINE MASTER PROGRAM
DRAFT
J, 1 he Cit ma pRrove five;;Year mane ernont PlLns ado ire sin rrraintenance Bred yin use of
tse,lrnanag w rent ractices and they rhea r res to assure no r et ioss of shoreiirs ecczio icai
functions.
K. All applications for Su4�Nstantiat Allo ftSlioreline Permits that include dredging shall supply
a dredging plan that includes the following information:
a. The quantity of material to be removed.
b. The method of removal.
c. Location of spoil disposal sites and measures that will be taken to protect the
environment around them.
d. Plans for the protection and restoration of the shoreline environment during and after
dredging operations.
L. A dredging operation judged by the Administrator to be insufficient for protection or
restoration of the shoreline environment shall cause denial of a Substantial
tshoreline p !ermit.
17.07.080 In -Water Structures [All New]
Consultant Note: The Yakima County SMP did not have a discrete In -Water Structures regulations
section, although it did contain policies and use/modification matrix assignments. This section has been
generated by Consultant to ensure WAC compliance.
A. Prohibited projects. Projects that damage fish and wildlife resources, degrade recreation and
aesthetic resources, result in a net loss of ecological functions, or result in high flood stages and
velocities are prohibited.
B. Soil stabilization. Upland cut -and -fill slopes and back-filled areas resulting from installation of in -
water structures shall be stabilized with bioengineering approaches, including, but not limited to
brush matting and buffer strips and revegetated with native grasses, shrubs, or trees to prevent
loss of shoreline ecological functions and processes. In order to ensure soil stabilization,
revegetation must include native shrubs or trees and may not be limited to native grasses.
C. Water quality. In -water structures shall be constructed and maintained in a manner that does
not degrade the quality of affected waters. The City shall require conditions to achieve this
objective.
D. Prohibited structures. No motor vehicles, appliances, other similar structures or parts thereof;
nor structure demolition debris; nor any other solid waste shall be used as in -water structures.
E. Natural features. Natural in -water features, such as snags, uprooted trees, or stumps, shall be
left in place unless it can be demonstrated that they are actually causing bank erosion or higher
flood stages or pose a hazard to navigation or human safety.
F. Protect functions, processes and cultural resources. In -water structures shall provide for the
protection and preservation of ecosystem -wide processes, ecological functions, and cultural
resources, including, but not limited to, fish and fish passage, wildlife and water resources,
shoreline critical areas, hydrogeological processes, and natural scenic vistas. The location and
planning of in -water structures shall give due consideration to the full range of public interests,
May 22, 2013
DRAFT CITY OF YAKIMA SHORELINE MASTER PROGRAM
watershed functions and processes, and environmental concerns, with special emphasis on
protecting and restoring priority habitats and species.
G. Design. In -water structures shall be designed by a qualified professional. In -water structures
shall preserve valuable recreation resources and aesthetic values such as point and channel
bars, islands, and braided channels. In -water structures shall not be a safety hazard or obstruct
water navigation as determined by the Shoreline Administrator.
H. Permits. Construction of in -water structures may not commence without having obtained all
applicable f=ederal, State, and local permits and approvals.
I. Public access. Design of in -water structures by public entities, including the City, other local
governments, state agencies, and public utility districts, shall include access to public shorelines
whenever possible, unless it is demonstrated that public access would cause unavoidable public
health and safety hazards, security problems, unmitigatable ecological impacts, unavoidable
conflicts with proposed uses, or unreasonable cost. At a minimum, in -water structures should
not decrease public access or use potential of shorelines.
May 22, 2013
DEPARTAIENT1111
200 South Third Street; Yakima, Washington 95901 (509),575-6030 Fax (,")575-6160
May 22, 2013
TO: City of Yakima Planning Commission
Steve Osguthorpe, AICP, Director, Community Development Department
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Restrictive Covenants — Shoreline Master Program
A question has been raised regarding the use of restrictive covenants in the
administration and enforcement of conditions imposed under the Shoreline Master
Program. The City of Yakima, as part of its obligations to comprehensively plan under
the state's Growth Management Act, is required to develop and implement a Shoreline
Master Program (SMP). The state legislature identified the purposes of the required
shoreline protection as follows:
A. Back round.
RCW 90.58.020
Legislative findings — State policy enunciated — Use preference.
The legislature finds that the shorelines of the state are among the most valuable and fragile of its
natural resources and that there is great concern throughout the state relating to their utilization,
protection, restoration, and preservation. In addition it finds that ever increasing pressures of
additional uses are being placed on the shorelines necessitating increased coordination in the
management and development of the shorelines of the state. The legislature further finds that
much of the shorelines of the state and the uplands adjacent thereto are in private ownership; that
unrestricted construction on the privately owned or publicly owned shorelines of the state is not in
the gest public interest; and therefore, coordinated planning is necessary in order to protect the
public interest associated with the shorelines of the state while, at the same time, recognizing and
protecting private property rights consistent: with the public interest. There is, therefor, a clear and
urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state,
and local governments, to prevent the inherent harm in an uncoordinated and piecemeal
development of'the state's shorelines„
It is the policy of the state to provide for the management of the shorelines of the state by
planning for and fostering all reasonable andappropriate uses. This policy is designed to insure
the development of these shorelines in a manner which, while allowing for limited reduction of
Memorandum to Honorable Mayor and Members of the City Council
May 22, 2013
Page 2
rights of the public in the navigable waters, will promote and enhance the public interest. This
policy contemplates protecting against adverse effects to the public health, the land and its
vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally
public rights of navigation and corollary rights incidental thereto„
The legislature declares that the interest of all of the people shall be paramount in the
management of shorelines of statewide siggnificance. The department, in adopting guidelines for
shorelines of statewide significance, and local government, in developing master programs for
shorelines of statewide significance, shall give preference to uses in the following order of
preference which;
(1) Recognize and protect the statewide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long term over short term benefit;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in RCW 90.58. 100 deemed appropriate or
necessary.
In the implementation of this policy the public's opportunity to enjoy the physical and aesthetic
qualities of natural shorelines of the state shall be preserved to the greatest extent feasible
consistent with the overall best interest of the state and the people generally. To this end uses
shall be preferred which are consistent with control of pollution and prevention of damage to the
natural environment, or are unique to or dependent upon use of the state's shoreline. Alterations
of the natural condition of the shorelines of the state, in those limited instances when authorized„
shall be given priority for single-family residences and their appurtenant structures, ports,
shoreline recreational uses including but not limited to parks, marinas, piers, and other
improvements facilitating public access to shorelines of the state, industrial and commercial
developments which are particularly dependent on their location on or use of the shorelines of the
state and other development that will provide an opportunity for substantial numbers of the people
to enjoy the shorelines of the state. Alterations of the natural condition of the shorelines and
shorelands of the state shall be recognized by the department. Shorelines and shorelands of the
state shall be appropriately classified and these classifications shall be revised when
circumstances warrant regardless of whether the change in circumstances occurs through man-
made causes or natural causes. Any areas resulting from alterations of the natural condition of the
shorelines and shorelands of the state no longer meeting the definition of "shorelines of the state"
shall not be subject to the provisions of chapter 90.58 RW.
Permitted uses in the shorelines of the state shall be designed and conducted in a manner to
minimize, insofar as practical, any resultant damage to the ecology and environment of the
shoreline area and any interference with the public's use of the water.
Memorandum to Honorable Mayor and Members of the City Council
May 22, 2013
Page 3
RCW 90.58.900 provides that the chapter shall be construed liberally:
This chapter is exempted from the rule of strict construction, and it shall be liberally construed to
give full effect to the objectives and purposes for which it was enacted.
A quick survey of SMPs adopted by other jurisdictions includes provisions authorizing
the city or county to use conservation easements or covenants to assure compliance.
See, e.g., City of Renton, City of Tumwater, Thurston County, San Juan County. A
typical phrasing is found in the City of Bainbridge Island Municipal Code:
Where sensitive area replacement activities are proposed, an applicant shall permanently protect
the replacement area through legal instruments such as sensitive area tracts, conservation
easements, or a comparable use restriction.
Bainbridge Island Municipal Code, Section 16.12.080(8). The term "comparable use
restriction" typically includes use of deed restrictions or restrictive covenants.
The use of restrictive covenants is a common protective device in preserving areas of
sensitive environmental concern. For example, the City of Renton has adopted
ordinances requiring preservation of "native growth protection areas." Renton Municipal
Code Section 4-3-050 pertaining to critical areas regulation includes the following:
c. Method of Creation: Native growth protection areas shall be established by one of the following
methods, in order of preference:
i. Conservation Easement: The permit holder shall, subject to the City's approval, convey to
the City or other public or nonprofit entity specified by the City, a recorded easement for the
protection of the critical area and/or its buffer.
ii. Protective Easement: The permit holder shall establish and record a permanent and
irrevocable easement on the property title of a parcel or tract of land containing a critical area
and/or its buffer created as a condition of a permit. Such protective easement shall be held by
the current and future property owner, shall run with the land, and shall prohibit development,
alteration, or disturbance within the easement except for purposes of habitat enhancement as
part of an enhancement project which has received prior written approval from the City, and
from any other agency with jurisdiction over such activity.
Memorandum to Honorable Mayor and Members of the City Council
May 22, 2013
Page 4
iii. Tract and Deed Restriction: The permit holder shall establish and record a permanent
and irrevocable deed restriction on the property title of any critical area management tract or
tracts created as a condition of a permit. Such deed restriction(s) shall prohibit development,
alteration, or disturbance within the tract except for purposes of habitat enhancement as part
of an enhancement project which has received prior written approval from the City, and from
any other agency with jurisdiction over such activity. A covenant shall be placed on the tract
restricting its separate sale. Each abutting lot owner or the homeowners' association shall
have an undivided interest in the tract.
Governmental agencies make common use of restrictive covenants or deed restrictions
when conveying government property. In the City of Olympia SMP, it was noted that
the United States Fish and Wildlife Service (USFWS) had imposed a restrictive
covenant on a portion of Budd Inlet that required the subject property, even though
owned by the City of Olympia, to be "kept in present undeveloped state, in perpetuity,"
and shall not be altered without the prior written consent of the USFWS.
In the City, of Yakima„ 'West "Valley Community Park property was originally acquired
and developed by Yakima. County, using grant funds administered by the Washington
State Recreation and Conservation Office (RCO).. A condition of the grant was a
requirement that the properties remain in use as park property and for the protection of
fish habitat in the adjacent creek. The grant required Yakima County, and any
subsequent owner, to include deed restrictions confirming these requirements and
limitations in any sale or transfer of the property.
1. Notice.
In the public sector, restrictive covenants and "deed restrictions" are
commonly used to provide "notice" to the property owner — and successive
property owners — of the presence and applicability of other codes and
conditions affecting, limiting or controlling use of the property. Such
covenants are often used to notify successive owners that the environmental
codes or laws of the jurisdiction apply to the property. The covenants and/or
deed restrictions identify the applicable codes and describe, generally, the
limitation. This puts the owner on notice of the code and restriction.
Memorandum to Honorable Mayor and Members of the City Council
May 22, 2013
Page 5
For example, in the case of the RCO grant for the City of Yakima West Valley
Community Park, the deed restrictions notify the City of Yakima that the
acquisition of the property is subject to use restrictions.
2. Use in Specific Land Use Decisions.
Another primary purpose is to provide notice of conditions imposed during
approval of a conditional use or special use permit. The availability of the
restrictive covenant, deed restriction, conservation easement, etc., gives tools
to the Hearing Examiner or administrator when considering and granting
permits. If the ability to use restrictive covenants is eliminated in an SMP, a
Hearing Examiner may be left without a tool to fashion a reasonable condition.
For example, in a Shoreline Conditional Use Permit and Substantial
Development Permit hearing in the City of Renton, the Dearing Examiner was
able to approve permits using a restrictive covenant. In that case, the Hearing
Examiner conditioned approval upon the following:
2. The applicant shall prepare a restrictive covenant with the appropriate
signature of the property owners and recorded with King County. The document
shall specify ownership rights and maintenance provisions for the dock and
mooring pilings. The restrictive covenant shall contain a statement that the
covenant shall remain with the property and can only be released by written
permission granted by the City of Renton. Building permits for the dock, boat lifts
and mooring pilings may be issued only subsequent to recording the restrictive
covenant.
The restrictive covenant in this case covered elements such as defining
ownership rights and maintenance of the dock structure. The point is that the
Hearing Examiner's ability to impose conditions specific to the land use is
enabled by the use of the restrictive covenant. The restrictive covenant is then
recorded as a means to bind subsequent owners of the property.
C. Conclusion.
The ability of a municipality to achieve the protection mandates of Chapter 90.58 RCW,
and other environmental protection laws and purposes, can be accomplished in a
number of ways, using a variety of tools. These "tools" include:
• Purchase of the property, fee simple acquisitions;
• Perpetual conservation easements;
Term conservation easements;
Memorandum to Honorable Mayor and Members of the City Council
May 22, 2013
Page 6
• Conservation leases;
• Restrictive Covenants;
• Fee simple / lease back transactions;
• Deferred purchase mechanisms;
Voluntary conservation registries.
See, CONSERVATION TOOLS: An Evaluation and Comparison of the Use of Certain Land
Preservation Mechanisms, prepared for Washington State Recreation and
Conservation Office (December 23, 2009).
Each of the tools has a beneficial use, and any one tool may "fit" the particular needs at
hand. To eliminate the tool is to reduce the ability to fashion a reasonable solution or
condition to address a particular need.
