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Article IX. Unauthorized Alterations and Enforcement
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A. When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration.

1. For alterations to critical aquifer recharge areas, special flood hazard areas, wetlands, and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The historic structural and functional values shall be restored, including water quality and habitat functions;

b. The historic soil types and configuration shall be replicated;

c. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

d. Information demonstrating compliance with the requirements in BMC 14.04.230, Mitigation plan requirements, shall be submitted to the director.

2. For alterations to special flood hazard areas and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the pre-development hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

D. Site Investigations. The director is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Penalties. The enforcement and penalty provisions for critical areas regulations are intended to encourage compliance with this chapter and protect critical areas and the public from harm. To achieve this, violators will not only be required to restore damaged critical areas, insofar as that is possible, but will also be required to pay a civil penalty for the redress of ecological, recreational, and economic values lost or damaged due to their unlawful action.

1. The provisions in this section are in addition to and not in lieu of any other penalty, sanction or right of action provided by law.

2. In all cases, the owner of the land shall be named as a party to the notice and order. In addition to any other persons who may be liable for violations, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.

3. Violation of this chapter means the violation of any provision of this chapter or of the administrative rules promulgated hereunder, or of any permit or approval or stop work order or any other order issued pursuant hereto, or of any of the terms and conditions of any critical area and buffer or setback area, easement or other covenant, plat restriction or binding assurance, or of any mitigation plan, or contract or agreement concluded pursuant to the abovementioned provisions of this chapter.

4. Any person in violation of this chapter shall be subject to civil penalties assessed as follows:

a. An amount reasonably determined by the community development director to be equivalent to the economic benefit that the violator derives from the violation as measured by the greater of the resulting increase in market value of the property or the value received by the violator, or savings of construction costs realized by the violator performing any act in violation of this chapter; and

b. An amount, not to exceed $25,000, that is reasonably based upon the nature and gravity of the violation and the cost to the city of enforcing this chapter against the violator;

c. Any civil penalty recovered under this section shall be deposited in the critical area mitigation fund for use by the city in protecting or restoring wetlands as set forth in BMC 14.04.500 through 14.04.550;

d. No civil penalty shall be imposed under this chapter upon the city of Bothell or city employees for any act or omission relating to the administration or enforcement of this chapter.

5. As an alternative to any other judicial or administrative remedy provided in this title or by law or other ordinance, any person who willfully or knowingly violates any land use or public health ordinance, or rule and regulation adopted thereunder, or any order issued pursuant to this title or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000 and/or imprisonment for a term not to exceed 90 days. Each day such violation continues shall be considered an additional misdemeanor offense.

6. Revocation or Refusal to Accept Application.

a. In addition to the provisions of BMC Title 11, a permit or approval that is subject to review under this chapter may be revoked or suspended or a stop work order may be issued upon failure by an applicant to disclose a change of circumstances on the development proposal site which materially affects the applicant’s ability to meet the permit or approval conditions or which makes inaccurate the special study that was the basis for imposing permit or approval conditions.

b. In addition to any other enforcement method, to further the remedial purposes of this section, the city of Bothell can refuse to accept any application for a permit or approval for a development proposal for any property on which a violation of this chapter has occurred, on which a violation of any prior ordinance repealed by the ordinance codified in this chapter or of the administrative rules promulgated thereunder or of any permit, approval, order, easement plan or agreement issued pursuant thereto has occurred. Such refusal shall continue until the violation is cured by restoration accepted as complete by the city of Bothell and by payment of any civil penalty imposed for the violation; provided, that applications for permits or approvals shall be accepted to the extent necessary to accomplish any required cure.

c. In order to further the remedial purpose of this section, the city of Bothell shall refuse to accept any application for a development proposal permit or approval from any person found to have violated this chapter until the violation is cured by restoration accepted as complete by the city of Bothell or a mitigation plan and performance bond to ensure completion has been approved by the city of Bothell and by payment of any civil penalty imposed for the violation; provided, that applications shall be accepted to the extent necessary to accomplish any required cure.

7. For the purposes of this subsection, a person will be deemed to have been found in violation of this chapter when a notice and order alleging a violation is issued and not timely appealed.

8. Any person subject to the provisions of this chapter who violates any provision of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area, within a reasonable time, to its condition prior to such violation. (Ord. 2315 § 10, 2020; Ord. 1946 § 3, 2005).