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A. Authority To Appeal: Any person, the city, or federal, state, county, school district or city government agency, may file an appeal when aggrieved by a decision or interpretation made by the zoning administrator; provided, that the appeal is based on an allegation that:
1. The zoning administrator made an error in interpretation of these regulations; and that
2. The erroneous interpretation specifically aggrieves the appellant.
B. Application And Procedure:
1. Appeals must be filed in the manner provided, and, after payment of fees as prescribed by the city council, within thirty (30) days (but not more than 10 days after start of construction) from the time the officer charged with enforcement of these regulations has made a written interpretation or determination of these regulations.
2. No part of any required fee will be returnable after an appeal is filed and the fee paid, except upon petition by the appellant and approval by the zoning administrator. No fee paid for an action which is declared closed or ruled invalid will be refunded.
3. The zoning administrator will transmit any appeal with all supporting materials to the community development board at least five (5) calendar days prior to the date of their next regularly scheduled meeting.
4. The zoning administrator must fix a reasonable time for the hearing and give notice thereof to the parties of interest and the public by publishing notice in a newspaper of general circulation in the community, at least fifteen (15) calendar days prior to the hearing.
5. Where an appeal concerns a particular piece of property, all property owners within one hundred fifty feet (150') of the subject property must be notified by mail at least fifteen (15) calendar days prior to the hearing. (When the subject property abuts a public right of way, the 150 foot measurement is in addition to this right of way along the abutting side.)
6. An appeal under the terms of these regulations stays all proceedings in the matter appealed from unless the zoning administrator certifies to the community development board that, by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property. In such case, proceedings will not be stayed, except by a restraining order granted by the board hearing the appeal or by a court of record on application and notice to the zoning administrator from whom the appeal was taken and on due cause shown.
7. Decisions of the community development board must be by motion. The basis for the decision on each appeal, and a detailed summary of the facts and basis supporting the determination, must be recorded in the decision and must constitute a part of the record thereof.
8. The concurring vote of four (4) members of the board is necessary to reverse any order, requirement, decision, or determination of the zoning administrator; or to decide in favor of the applicant on any matter.
9. A hearing may be continued at the request of the applicant or upon motion of the board; provided however, that the granting of a continuance is a matter of grace, resting solely in the discretion of the board, and a refusal to continue is not a denial of a right, conditional or otherwise.
10. Decision on continuance of a hearing can be reached by a simple majority, but must be made prior to voting on the application itself.
11. Any person aggrieved by a decision of the board with regard to an appeal may file an appeal with a court of record within thirty (30) days of the filing of the decision.
(Ord. A-407, 3-15-1982; amd. Ord. 23-27, 11-20-2023)
A. Hardships: Certain circumstances exist or arise wherein an unnecessary hardship is created through strict adherence to the provisions of these regulations. There is hereinafter provided provisions for the granting of a variance from the provisions of these regulations, so that the public welfare is secured, and substantial justice can be done to those so affected. Any zoning deviations utilized as incentives received with an approved Housing Mitigation Plan pursuant to section 11-1A-5 of this title are not subject to the provisions of this subsection and are not required to obtain a variance.
B. Application For Variance:
1. Application for a variance may be filed by any property owner or their designated agent for the affected property.
2. The application must be made on a form provided by the planning office. Multiple requests for variance for the same project may be filed on a single application and charged a single fee.
3. The completed application and fee as set by the city council must be submitted to the Zoning Administrator.
4. No part of any required fee will be refundable after an application is filed and the fee paid, except under petition by the applicant and approval by the Zoning Administrator for items requested to be pulled from the agenda prior to a public hearing. On those items, a partial refund may be considered. No fee paid for an action which is denied, declared closed, or ruled invalid shall be refunded.
C. Procedure For Consideration:
1. The Zoning Administrator shall transmit the completed application to the community development board at least five (5) calendar days prior to the date of their next regularly scheduled meeting, together with all supportive materials thereto attached, and will set a hearing date, publish notice as provided for in these regulations and notify all parties of interest. Notice of the hearing will be placed in a newspaper of general circulation in the community at least fifteen (15) calendar days prior to the date of the hearing.
2. Written notice shall be sent by regular mail to all property owners within one hundred fifty feet (150') of the subject property at least fifteen (15) calendar days prior to the hearing. Where the subject property abuts a public right-of-way, the one hundred fifty foot (150') measurement shall be in addition to this right-of-way along the abutting side.
3. Findings are required to be made by the Board for approval of a variance. No variance will be granted unless the Board finds all the following conditions are met or found to be not pertinent to the particular case:
a. Strict compliance with the terms of these regulations will:
(1) Limit the reasonable use of the property; and
(2) Deprive the applicant of rights enjoyed by other properties similarly situated in the district.
b. The hardship is the result of lot size, shape, topography or other circumstances over which the applicant has no control.
c. The hardship is peculiar to the applicant’s property.
d. The hardship was not created by the applicant.
e. The hardship is not economic (when a reasonable or viable alternative exists).
f. Granting the variance will not adversely affect the neighboring properties or the public.
g. The variance requested is the minimum variance which will alleviate the hardship.
h. Granting the variance will not confer a special privilege that is denied other similar properties in the district.
4. Every decision of the Board will be made by motion and be based upon findings of fact, and every finding of fact supported in the record of its proceedings. The enumerated conditions required to grant a variance under these regulations will be construed as limitation on the power of the Board to act. A mere finding or recitation of the enumerate conditions unaccompanied by findings of specific fact will not be deemed in compliance with these regulations.
5. In approving a variance, the Board may impose such conditions as are in its judgment necessary to promote the general provisions of these regulations.
6. It takes the affirmative vote of four (4) members of the Board to grant a variance.
7. A hearing may be continued at the request of the applicant or upon motion of the Board; provided however, that the granting of a continuance is a matter of grace, resting solely in the discretion of the Board, and a refusal to continue is not a denial of a right, conditional or otherwise.
8. Decision on continuance of a hearing can be reached by a simple majority; but must be made prior to voting on the application itself.
9. A variance is valid indefinitely, provided it is exercised within one year of the date of issuance, or as otherwise provided for by the Board.
10. The Board must act upon any application for a variance within sixty (60) days of the date of filing with the Zoning Administrator.
11. A request may be reheard only when there has been a manifest error affecting the Board’s decision, or it appears that a substantial change in facts, evidence or conditions has occurred. The determination will be made by the Zoning Administrator within sixty (60) days of final action by the Board.
12. Any person aggrieved by a decision of the Board may file an appeal with a court of record within thirty (30) days of the filing of the decision by the Board.
(Ord. A-407, 3-15-1982; amd. Ord. 19-11, 6-3-2019; Ord. 21-11, 8-16-2021; Ord. 23-27, 11-20-2023)
A. Conditional Use Permit Required: No structure, building or land will be used, constructed, altered or expanded where a conditional use permit is specifically required by the terms of these regulations until a conditional use permit for the use has been authorized by the city council and issued by the Zoning Administrator.
B. Continuation Of Conditional Use Permit: Any use which was lawfully established prior to the adoption, extension or application of these regulations and the use is now permitted by these regulations subject to a conditional use permit, may continue in the same manner and to the same extent as conducted prior to the adoption or extension of these regulations without securing a conditional use permit; provided that before the structure or building in which the use is conducted may be altered, added to, enlarged, expanded or moved from one location to another on the lot, or before the use may be expanded within the building or extended over the lot on which the use is located, a conditional use permit must be secured from the Zoning Administrator.
C. Alter Or Enlarge Structures: Structures or buildings devoted to any use which is permitted under the terms of these regulations, subject to the securing of a conditional use permit, may be altered, added to, enlarged, expanded or moved from one location to another on the lot only after securing a new conditional use permit.
D. Application:
1. Application for a conditional use permit may be made by the owner of the affected property, or his/her designated agent, on a form obtainable from the planning office.
2. The completed application and fee as set by the city council must be submitted to the Zoning Administrator or his/her designee. The fee is not refundable.
3. All required conditional use permit applications and preliminary plat applications applicable to a single development project shall be submitted for review simultaneously.
E. Procedure For Consideration:
1. After acceptance by the Zoning Administrator or his/her designee, the completed application will be transmitted to the staff of the community development board for their review and evaluation.
2. The planning staff will set a public hearing date and publish a public notice which jointly advertises the public hearing before the community development board and the public hearing before the city council, at least once in a newspaper of general circulation in the community, at least fifteen (15) calendar days prior to the meeting of the community development board at which the application is to be considered.
3. The planning staff must also mail written notice to all adjacent property owners within three hundred feet (300') of the subject property not less than fifteen (15) calendar days prior to the time of formal review by the community development board. Where the subject property abuts a public right-of-way, the three hundred feet (300') measurement must be in addition to the right-of-way along the abutting side.
4. A notice must be posted by the planning department in a conspicuous place on the site at least fifteen (15) working days prior to the public hearing and shall remain on the subject parcel until all the public hearings are complete. It shall be the responsibility of the applicant to ensure the sign is maintained in place and visible during the entire public review process.
5. Written comment from adjacent property owners must be specific when maintaining that the granting of the conditional use permit would adversely or injuriously affect their personal and legal interests.
6. The community development board will consider the application at its next regular meeting following the public notice process. The board will make a recommendation to the city council to approve, conditionally approve or deny the application.
7. Upon receipt of the recommendation of the community development board, the city council will hold a public hearing and render a determination whether to approve, conditionally approve or deny the application for a conditional use permit based on public input, the staff report and findings of the community development board.
8. A decision must be rendered by the city council within ninety (90) days after acceptance of the completed application by the Zoning Administrator and the payment of the appropriate fee unless the time limit has been extended by an agreement between the Zoning Administrator or the city council and the applicant.
F. Approval Of Application, Granting Of Conditional Use Permit: Upon rendering a decision to grant a conditional use permit, with or without stipulations or conditions that must be adhered to by the applicant, the city council will notify the Zoning Administrator of their decision, and he shall issue a conditional use permit, with stipulations if any referred to and itemized in brief on the face of the permit. The application and all subsequent information, correspondence, evaluations, recommendations and decisions will then be placed on permanent file in the Office of the Zoning Administrator.
G. Revocation: In the event of a violation of any of the provisions of these regulations or its amendments, or in the event of a failure to comply with any prescribed condition of approval or stipulations placed upon approval, the Zoning Administrator willl suspend any conditional use permit immediately, notify the city council and set a date for hearing to determine if the suspensions shall be lifted or if the conditional use permit shall be revoked. The city council shall be the hearing body. In the case of a revocation of a conditional use permit, the determination of the city council is final, unless recourse is sought in a court of record.
H. Termination And Transferability: Once granted, a conditional use permit with its terms and conditions, will:
1. Run with the lot, building, structure or use and shall not be affected by changes in ownership.
2. Terminate eighteen (18) months from date of authorization if commencement of the authorized activity has not begun:
a. Unless otherwise spelled out in the conditions of approval; or
b. Unless the applicant can demonstrate and maintain a continuous good faith effort (preparing financing, securing State or Federal permits, undertaking engineering and design, etc.) in commencing the activity.
I. Denial Of Application:
1. In the event an application is denied by the city council, no resubmittal of an application for a conditional use permit may be made for one year from the date of denial, unless sufficient new evidence or conditions are offered to the Zoning Administrator to demonstrate to him/her that circumstances have altered and that further consideration of the application is warranted. In such an event, the resubmitted application must follow the same procedures as the original, and will be treated as a new application.
2. Denial of an application for a conditional use permit may be appealed to a court of record within thirty (30) days from the date of denial.
J. Criteria Required For Consideration Of A Conditional Use Permit (CUP): A CUP may be granted only if the proposal substantially conforms to all of the following criteria standards:
1. Growth policy compliance. The proposal conforms to applicable goals and policies of the Whitefish growth policy.
2. Compliance with regulations. The proposal is consistent with the purpose, intent, and applicable provisions of these regulations.
3. Site suitability. The site must be suitable for the proposed use or development, including:
a. Adequate usable land area,
b. Access that meets the standards set forth in these regulations, including emergency access,
c. Absence of environmental constraints that would render the site inappropriate for the proposed use or development, including, but not necessarily limited to, floodplains, slope, wetlands, riparian buffers/setbacks, or geological hazards.
4. Quality and functionality of design. The site plan for the proposed use or development has effectively dealt with the following design issues as applicable:
a. Parking locations and layout,
b. Traffic circulation,
c. Open space,
d. Fencing/screening,
e. Landscaping,
f. Signage,
g. Undergrounding of new utilities, and
h. Undergrounding existing overhead utilities based on scope and scale of project.
5. Availability and adequacy of public services and facilities. The following services and facilities are available and adequate to serve the use or development as proposed and as applicable:
a. Sewer,
b. Water,
c. Storm water,
d. Fire protection,
e. Police protection,
f. Streets (public or private),
g. Parks (residential only),
h. Sidewalks, and
i. Bike/pedestrian ways (including connectivity to existing and proposed developments and destinations off site).
6. Neighborhood/community impact. The proposed use or development will not have detrimental effects on adjacent properties, nearby neighborhoods, and the community in general. Adverse impacts may include, but are not necessarily limited to:
a. Excessive traffic generation and/or infiltration of neighborhoods,
b. Noise or vibration,
c. Dust, smoke, glare or heat,
d. Smoke, fumes, gas or odors, and
e. Hours of operation.
7. Neighborhood/community compatibility. The use or development is compatible with the surrounding neighborhood and community in general in terms of:
a. Structural bulk and massing,
b. Scale,
c. Context of existing neighborhood,
d. Density, and
e. Community character.
K. Burden On Applicant: The burden of proof for satisfying the aforementioned criteria considered for approval rests with the applicant and not the city council. The granting of a conditional use permit is a matter of grace, resting in the discretion of the City Council and a refusal is not the denial of a right, conditional or otherwise.
L. City Council Decision Based On Findings: Every decision of the city council pertaining to the granting, denial or amendment of a request for a conditional use permit must be based upon findings of fact, and every finding of fact must be supported in the records of its proceedings. The enumerated conditions as provided for in subsection J of this section, required to exist in any matter upon which the city council is required to pass under these regulations will be construed as a limitation on the power of the city council to act in the matter of the issuance of conditional use permits. A mere finding or recitation of the enumerated conditions unaccompanied by findings of specific fact will not be deemed in compliance with these regulations.
M. Administrative Conditional Use Permit Required: An administrative conditional use permit must be obtained by the property owner when specifically required by this title or for minor amendments to an already approved conditional use permit. In no case, may a project requiring a standard conditional use permit be allowed to utilize the administrative conditional use permit process.
1. Application:
a. Application for an administrative conditional use permit must be made on forms provided by the Zoning Administrator.
b. A completed application and fee as set by the city council must be submitted to the Zoning Administrator or designee. The fee is nonrefundable.
2. Procedures For Consideration:
a. Once the application is deemed complete, the planning staff must:
(1) Notify in writing each property owner on a list certified by Flathead County of owners of record within three hundred feet (300') of the subject parcel excluding any right-of-way by regular mail at least fifteen (15) working days prior to the issuance of the permit. The notice must include a site plan and City staff contact information. The notice shall also include instructions for submitting public comments and a deadline for submitting such comments.
(2) Publish a public notice once in a newspaper of general circulation in the community at least fifteen (15) working days prior to the issuance of the permit.
b. Written comments from adjacent property owners expressing concerns or objections, if any, must be specific stating the granting of the conditional use permit would adversely or injuriously affect their personal and/or legal interest.
c. If there are concerns that cannot be mitigated through standard conditions of approval, a public hearing before the community development board and city council will be scheduled according to the process outlined in subsection E of this section.
d. If it appears the administrative conditional use permit is being used to avoid the standard conditional use permit process through phasing or other means, the Zoning Administrator may schedule the matter before the community development board and city council according to the process outlined in subsection E of this section.
(Ord. A-407, 3-15-1982; amd. Ord. 96-10, 6-17-1996; Ord. 07-05, 3-5-2007; Ord. 19-11, 6-3-2019; Ord. 19-25, 12-16-2019; Ord. 23-27, 11-20-2023)
A. Purpose: The purpose of the zoning compliance permit is to ensure proposed changes in use comply with the standards of this title.
B. Zoning Compliance Permit Required: A zoning compliance permit is required prior to a change in use when a building permit is not required. A use is considered changed when it is converted from one type of use to another of a different type that has different development standards or parking requirements. For example, a retail space changing to a restaurant or office space, a commercial space changing to residential use, or the changing of a residential use to a residential short-term rental. Should a change in use be undertaken without first obtaining a zoning compliance permit, and said activity is subsequently found to be not in compliance with applicable codes and regulations, the new use must be abandoned, or, if a legal use, an after the fact zoning compliance permit must be obtained as set forth in subsection H of this section and a review fee will be charged.
C. Preapplication:
1. Prior to submitting an application for zoning compliance, an applicant must schedule a meeting with a city planner to review the application.
2. The purpose of the preapplication meeting is to provide the applicant with the best available information regarding the development proposal and application processing requirement, review the uses permitted in the zoning district, and to assure the availability of complete and accurate information necessary for review prior to the applicant's expenditure of application fee and the scheduling of the application review process.
D. Application:
1. Change In Use; Submittal Requirements:
a. Form Provided: Application for zoning compliance shall be made on a form provided by the city of Whitefish.
b. Site Plan: The application shall include a site plan drawn to a suitable engineering scale (1 inch = 10 feet, 1 inch = 20 feet, etc.). The site plan shall include, as a minimum, the following:
(1) Boundaries of the subject property with all bearings and dimensions.
(2) All existing and proposed improvements, including buildings, storage areas, driveways, decks, patios, fuel tanks, utilities, easements, and landscaping.
(3) Required off street parking with number of spaces provided, surface treatment, loading zones and parking lot landscaping delineated.
(4) For commercial uses, a floor plan layout that shows the gross floor area.
E. Response: Once an application for zoning compliance permit is deemed complete, the zoning administrator will have twenty (20) business days to respond to the applicant.
F. Approval: Approval of a zoning compliance permit will consist of a stamped approved copy of the site plan with all conditions noted thereon or in a separate letter.
G. Denial: Denial of a zoning compliance permit will consist of a stamped copy of the site plan and letter explaining the reasons for such denial.
H. After The Fact Zoning Compliance Permit: Should any change in use be undertaken without first obtaining a zoning compliance permit, and such activity is subsequently determined by the zoning administrator to be in violation of applicable codes and regulations, the use must be abandoned immediately. If the use is a legal use, upon written notice of the zoning administrator the property owner must obtain an after the fact zoning compliance permit. The after the fact zoning compliance permit must be applied for on a form provided by the city, and must be accompanied by a site plan with all information required in subsection E2 of this section. A fee for the after the fact zoning compliance permit will be set by resolution of the Whitefish city council. The after the fact zoning compliance permit must be approved, approved with conditions, or denied by the zoning administrator in accordance with subsections E, F and G of this section.
I. Time Limits:
1. A zoning compliance permit is valid for twelve (12) months and expires if the development is not established, ongoing and in operation.
2. The zoning administrator may grant one 1-year extension upon written application to the zoning administrator provided the applicant can show a continued good faith effort.
3. Failure to act within the time limits established by this section shall render null and void the zoning compliance permit.
J. Appeal: Any action of the zoning administrator pursuant to this section may be appealed to the board as set forth in section 11-7-6 of this chapter.
(Ord. 11-04, 4-18-2011; amd. Ord. 14-21, 1-5-2015; Ord. 23-27, 11-20-2023)
A. Water Quality Identification Form And Report:
1. Form Requirements: Prior to the city’s consideration of development within two hundred feet (200') of a water quality protection area and not found to be exempt under subsection 11-3-29B1 of this title, the applicant must submit to the director a complete water quality protection identification form, provided by the city, including a site plan drawn to a suitable engineering scale (1 inch = 10 feet, 1 inch = 20 feet, etc.). The site plan, which is not intended to require a formal land survey, must at a minimum include the following:
a. Boundaries of the subject property.
b. All existing and proposed improvements, including buildings, parking and storage areas, driveways, decks, patios, wells, septic systems, drain fields, fuel tanks, utilities, easements, and areas to be cleared or graded.
c. Name and description of the adjacent street (R/W width, pavement width, type of surface, public or private, sidewalk, curb and gutter, etc.).
d. Accurate location of critical stormwater conveyances regulated under this section on the property, or lakes, rivers, streams, or wetlands on the property or within two hundred feet (200') of the development site.
e. Identification of those parts of the development site with slopes greater than ten percent (10%), if located within two hundred feet (200') of a lake, river, stream or wetlands.
The director may waive requirements for the site plan if the director determines the completed water quality protection identification form is sufficient to ensure compliance with this section.
2. Form Review: The director will review the water quality protection identification form and site plan and conduct a site inspection and review other information available pertaining to the site and the proposal. The director will then make a determination as to whether any water quality protection areas may be affected by the proposal. If the director finds that no water quality protection areas are present on or adjacent to the development site or that the proposal will not impact a water quality protection area in a manner contrary to section 11-3-29 of this title, the director will rule that the water quality protection review is complete and will note on the identification form that no further review is required.
If the director finds that a water quality protection area may be affected by the proposal, the director will notify the applicant of what additional information is necessary to assess compliance with this section, indicating each of the water quality protection types that should be addressed.
A determination regarding the absence of one or more water quality protection areas by the director is not an expert certification. The presence of water quality protection areas is subject to possible reconsideration and reopening if new information is received. Development of materials to demonstrate compliance with this section and their review by the city, which may include referral to independent qualified professionals, at the applicant’s expense.
3. Required Geographic Area: The director may limit the required geographic area of a water quality protection report or geotechnical letter as appropriate if:
a. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the development site; or
b. The proposed activity will affect only a limited part of the subject site.
4. Water Quality Protection Review With Building Permit Submittal: A project submitting for a building permit does not need to submit a separate water quality protection identification form if all the above described information is found on the site plan for the building permit. If the director identifies a water quality protection area not addressed in the building permit, then the applicant must complete a separate water quality protection identification form and submit any additional information as may be needed.
B. Water Quality Protection Compliance Permit:
1. An applicant for a water quality protection compliance permit must submit to the director a complete water quality protection identification form and site plan, as described in subsection A of this section.
2. Once an application for a water quality protection compliance permit is deemed complete, the director has thirty (30) days to respond to the applicant consistent with procedures identified in subsection A of this section. Decisions by the director may be appealed as set forth in section 11-7-6 of this chapter.
3. Water quality protection compliance permits are valid for eighteen (18) months. One 12-month extension may be granted from the planning department, provided the site plan and conditions have not changed.
C. Preliminary Water Quality Protection Determination: Prior to a detailed submittal for compliance with these regulations and the requirements of subsection A or B of this section, a property owner or potential purchaser of land may opt to request a preliminary determination from the city which will include a completed form, provided by the city, along with an application fee and the following information:
1. Vicinity map.
2. Site plan, drawn to a suitable engineering scale (such as 1 inch = 20 feet), showing:
a. Boundaries of the subject property.
b. A building improvement area (more than an exact building footprint, but less than the entire lot).
c. Name of adjacent rights of way.
d. Location of critical stormwater conveyances, rivers, streams, wetlands, or lakes on property or within two hundred feet (200').
e. Topography of the site at two foot (2') contour intervals, with slopes greater than ten percent (10%), if located within two hundred feet (200') of a lake, river, stream or wetland.
The director will review the preliminary water quality protection determination application, will conduct a site inspection and review other information available pertaining to the site to preliminarily determine if the proposal may have an effect on water quality protection areas. A written preliminary determination will be issued by the city within thirty (30) days of a completed application. This written determination does not take the place of the requirements in subsection A or B of this section.
D. Determination:
1. Once a water quality protection report or geotechnical letter is deemed complete, the director shall determine whether the proposed activity complies with this section within thirty (30) days.
2. If the director determines a proposed activity complies with this section, the director will prepare a written notice of determination and identify any required conditions of approval, which must be attached to the underlying permit or approval. This determination will be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.
3. If the director determines a proposed activity does not adequately mitigate its impacts on water quality protection areas or otherwise comply with this section, the director must prepare written notice of the determination that includes findings of noncompliance. No proposed activity or permit will be approved or issued if it is determined that the proposed activity does not comply with this section.
Following notice of noncompliance, the applicant may: a) request mediation of the points of disagreement, and/or b) request consideration of a revised water quality protection report or geotechnical letter. If the applicant requests mediation, then the applicant and the director will within twenty (20) days jointly select an acceptable mediator from a list approved by the director, and will meet at least once with the mediator within thirty (30) days after the mediator has been chosen.
The mediator must be a qualified professional for the relevant water quality protection area(s) unless the parties agree otherwise. The parties must share the cost of mediation equally. If the parties do not come to agreement through mediation, the director, taking into account the mediator’s recommendation, will make the determination. If the applicant requests consideration of a revised water quality protection report or geotechnical letter and the revision is found to be substantial and relevant, the director may reopen the review and make a new determination based on the revised report.
4. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this section may be appealed according to, and as part of, the appeal procedure for the permit or approval involved.
E. Report Contents: If the applicant proposes impacts to streams, lakes, wetlands, or their standard buffers or setbacks, including reductions in buffer widths in exchange for restoration, the applicant must submit a water quality protection report as described in this subsection, which must include the following information:
1. The dates, names, and qualifications of the persons preparing the report, documentation of any fieldwork performed on the site, and a description of the methodologies used, including references and all assumptions made or relied upon.
2. For all wetlands on the subject property and all off site wetlands that could be impacted by the proposed action (using best available information if adjacent property access is denied) provide the following: hydrogeomorphic and Cowardin classification; characterization of vegetation, soils, and hydrology indicators; standard wetland buffer width; and wetland acreage estimates.
3. Description of the proposed activity and assessment of cumulative impacts to water quality protection areas and buffers from development of the site, including a description of the proposed stormwater management plan for the development and discussion of the potential impacts to wetlands associated with anticipated alterations to water quality and hydroperiod (pattern of fluctuations in water levels).
4. An analysis of site development alternatives including a no development alternative.
5. A description of reasonable efforts made to avoid, minimize, or compensate for impacts in the following sequential order of preference:
a. Avoid the impact altogether by not taking a certain action or parts of an action;
b. Minimize impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;
c. Rectify the impact by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;
d. Minimize or eliminate a hazard by restoring or stabilizing the hazard area through engineered or other methods;
e. Reduce or eliminate the impact or hazard over time by preservation and maintenance operations during the life of the action;
f. Compensate for the impact by replacing, enhancing, or providing substitute resources or environments, on site, where feasible.
6. When mitigation to compensate for impacts is required, the following information shall be included:
a. Mitigation goals and objectives, in relation to the existing functions of the water quality protection or buffer and functions that will be lost because of the proposed development. For wetlands, this analysis shall use the Montana wetland assessment method, as developed and updated by the Montana department of transportation.
b. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of area or buffer proposed.
c. Measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this section have been met.
d. An analysis of the likelihood of success of the compensation project.
e. Details of the mitigation proposed, such as:
(1) The proposed construction method, sequence, timing, and duration;
(2) Grading and excavation details;
(3) Erosion and sediment control features;
(4) A planting plan specifying plant species, quantities, locations, size, spacing, and density; and
(5) Measures to protect and maintain plants until established.
These written specifications must be accompanied by detailed site diagrams, scaled cross sectional drawings, topographic maps showing slope percentage and final grade elevations, and/or any other drawings appropriate to show construction techniques or anticipated final outcome.
If buffers are not currently vegetated with native plants, any proposed restoration must attempt to create this condition unless site specific circumstances provide a compelling reason to do otherwise.
It is preferred that mitigation be completed prior to activities that will disturb streams, wetlands, or their buffers. If that is infeasible, mitigation must be completed immediately following disturbance and prior to use or occupancy of the action or development. Construction of mitigation projects must be timed to reduce impacts to existing fisheries, wildlife, and flora.
f. A program for monitoring construction of the mitigation project and for assessing the completed project against its goals and objectives. A protocol must be included outlining the schedule for site monitoring (for example, monitoring shall occur in years 1, 3, 5, 7 and 10 after site construction), and how monitoring data will be evaluated to determine if performance standards are being met. A monitoring report must be submitted to document milestones, successes, problems, and contingency actions of the compensation project. The mitigation project must be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five (5) years or, in the case of mitigation for wetland alterations, ten (10) years. If performance standards are being met after these minimum periods, requirements for additional monitoring may be waived, if the director determines they are unnecessary.
g. Identification of potential courses of action, and any corrective measures to be taken, if monitoring or evaluation indicates project performance standards are not being met.
h. Financial guarantees to ensure that the mitigation plan is fully implemented and meeting performance standards. Guarantees must be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city. The guarantee must be in the amount of one hundred twenty five percent (125%) of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the water quality protection areas that are at risk, whichever is greater, and must be separate from any other financial guarantees the city may hold for infrastructure purposes. Guarantees must be released based on milestones included in the water quality protection report and the city’s determination, in writing, that the standards bonded for have been met, to ensure that the required mitigation is fully implemented and demonstrated to function. Depletion, failure, or collection of bond funds do not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.
F. Wetland Mitigation Preferences: Mitigation to achieve compensation for lost wetland functions (e.g., removing fill, plugging ditches, breaking drain tiles, breaching dikes, etc.) must be approached in the following order of preference:
1. Reestablishment of natural or historic functions to a former wetland, through restoration of physical, chemical or biological processes.
2. Rehabilitation of natural or historic functions of a degraded wetland through restoration of physical, chemical or biological processes.
3. Creation of wetlands on disturbed upland sites, where the postproject hydrologic regime can demonstrably support the proposed wetland plant community.
4. Preservation or protection of a wetland that would not be adequately accomplished through existing regulations.
5. Enhancement of vegetation or other characteristics of a wetland site to improve specific functions, such as filtration of pollutants or wildlife habitat.
G. Wetland Mitigation Ratios: When an applicant proposes to alter a wetland, the affected wetland acreage must be replaced guided by the ratios established in the table below. The ratios apply to on-site mitigation, timed prior to or concurrent with alteration, has a high probability of success, and is in kind (i.e., losses of wetland acreage shall be replaced by creation or restoration of new acreage; degradation of wetland functions must be replaced by restoration or enhancement of new wetland functions, etc.). Ratios assume that the hydrogeomorphic (HGM) class/subclass of the wetland proposed as compensation are the same as the HGM class/subclass of the wetland impacted. Where these conditions do not hold, ratios must be adjusted accordingly, as determined by the director, in consultation with the Montana department of environmental quality. Ratios for remedial actions resulting from unauthorized alterations must be greater than set forth in the table, as determined by the director.
Type Of Wetland | Creation Or Reestablishment | Rehabilitation | Enhancement Or Preservation |
Fen | Not considered possible | 6:1 | 10:1 |
Other high value wetlands1 | 3:1 | 6:1 | 20:1 |
Other, nonexempt wetland | 2:1 | 4:1 | 15:1 |
Exempt wetland | 1.5:1 | 3:1 | 10:1 |
Note:
1. Includes wetlands with a forest community of Engelmann spruce and skunk cabbage; wetlands with plants identified as species of concern by the Montana natural heritage program or successor agency; and wetlands rated as category I or category II using the Montana wetland assessment method, as developed and updated by the Montana department of transportation.
(Ord. 12-04, 2-6-2012)
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