Chapter 16.08
SHORELINE MANAGEMENT ADMINISTRATIVE
AND PERMITTING PROCEDURES1
Sections:
16.08.010 Chapter purpose and intent.
16.08.015 Adoption of shoreline management procedures.
16.08.020 Definitions.
16.08.030 Administration and enforcement.
16.08.040 Application – Generally.
16.08.050 Application – Notices.
16.08.051 Statement of exemption.
16.08.052 Application – Shoreline substantial development permit – Review criteria.
16.08.054 Application – Shoreline conditional use permit – Review criteria.
16.08.056 Application – Shoreline variance – Review criteria.
16.08.060 Application – Review criteria – Additional information.
16.08.070 Development conformance burden of proof.
16.08.080 Application – Hearing – Required.
16.08.090 Application – Hearing – Official conducting.
16.08.100 Application – Hearing – Continuance.
16.08.110 Application – Hearing – Decision.
16.08.120 Application – Hearing – Rules of conduct.
16.08.130 Application – Decision final.
16.08.140 Grant or denial decision – Notifications.
16.08.150 Development commencement time.
16.08.160 Termination or review and extension for nondevelopment.
16.08.170 Conditions or restrictions authorized.
16.08.180 Issuance limitations.
16.08.190 Decision appeals.
16.08.200 Rescission or modification.
16.08.210 Violation – Penalty.
16.08.220 Administration rules promulgation.
16.08.010 Chapter purpose and intent.
It is the intention of the city council that the provisions of this chapter will promulgate and adopt a program for the administration and enforcement of a permit system that shall implement by reference the State Shoreline Management Act of 1971, Chapter 90.58 RCW; the State Department of Ecology regulations and guidelines adopted as Chapters 173-26 and 173-27 WAC; the Auburn shoreline master program attached to the ordinance codified in this chapter, together with amendments and/or additions thereto, and to provide for the implementation of the policy and standards as set forth in the aforesaid laws and regulations which are by reference made a part of this chapter with the force and effect as though set out in full in this chapter. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.010.)
16.08.015 Adoption of shoreline management procedures.
The city of Auburn hereby adopts by reference the following sections or subsections of Chapter 173-27 WAC, as amended, entitled “Shoreline Management Permit and Enforcement Procedures.”
WAC
173-27-020 Purpose
173-27-040 Developments exempt from substantial development permit requirement
173-27-050 Letter of exemption
173-27-060 Applicability of Chapter 90.58 RCW to federal land and agencies
173-27-090 Time requirements of permit
173-27-100 Revisions to permits
173-27-120 Special procedure for limited utility extensions and bulkheads
173-27-130 Filing with department
173-27-210 Minimum standards for conditional use and variance permits
173-27-270 Order to cease and desist
173-27-280 Civil penalty
173-27-290 Appeal of civil penalty
173-27-300 Criminal penalty
(Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008.)
16.08.020 Definitions.
As used in this chapter:
A. “Act” means the Shoreline Management Act of 1971 (Chapter 90.58 RCW) and state departmental regulations pursuant thereto, including any amendments thereto.
B. “Committee” means the planning and development committee of the city council.
C. “Definitions by reference” means the definitions and concepts set forth in Chapter 6 of the Auburn shoreline master program attached to the ordinance codified in this chapter, the Act (RCW 90.58.030), and state departmental definitions (WAC 173-27-030 and 173-27-250) adopted pursuant thereto which shall also apply as used in this chapter as they would pertain to shorelines within the city limits.
D. “Director” means the director of the department of planning and development of the city, or his duly authorized designee. (Ord. 6287 § 2, 2010; Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 71, 1985; 1957 code § 11.94.020.)
16.08.030 Administration and enforcement.
A. The director shall have the responsibility for the administration of the permit system pursuant to the requirements of the Act and regulations adopted and promulgated by the State Department of Ecology as pertains to the city.
B. The city attorney shall bring such injunctive, declaratory or other actions, which shall include the provisions of Chapter 1.25 ACC, as are necessary to ensure that no uses are made of the shorelines of the city in conflict with the provisions of this chapter or the Shoreline Management Act or in conflict with the master program, rules or regulations adopted pursuant thereto, and to otherwise enforce the provisions of this chapter and the Act. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4504 § 14, 1991; Ord. 4225 § 1, 1987; 1957 code § 11.94.030.)
16.08.040 Application – Generally.
In addition to the requirements for a completed application as set forth in ACC Title 14, applications for substantial development permits, variances and conditional use permits shall be completed on forms provided by the director. The application shall be substantially consistent with the information required by WAC 173-27-180 including the following information:
A. Completed Joint Aquatic Resource Permit Application (JARPA) form.
B. Completed intake form from WAC 173-27-990, Appendix A – Shoreline Management Act Permit Data Sheet and Transmittal Letter.
C. The name, address, phone number and e-mail address of the applicant. The applicant should be the owner of the property or the primary proponent of the project and not the representative of the owner or primary proponent.
D. The name, address, phone number and e-mail address of the applicant’s representative, if other than the applicant.
E. The name, address, phone number and e-mail address of the property owner, if other than the applicant.
F. Location of the Property. This shall, at a minimum, include the property address and identification of the section, township and range to the nearest quarter, quarter section or latitude and longitude to the nearest minute. All applications for projects located in open water areas away from land shall provide a longitude and latitude location.
G. Identification of the name of the shoreline (water body) that the site of the proposal is associated with. This should be the water body from which jurisdiction of the Act over the project is derived (e.g., Puget Sound).
H. A general description of the proposed project that includes the proposed use or uses and the activities necessary to accomplish the project.
I. A general description of the property as it now exists including its physical characteristics and improvements and structures.
J. A general description of the vicinity of the proposed project including identification of the adjacent uses, structures and improvements, intensity of development and physical characteristics.
K. A site development plan consisting of maps and elevation drawings, drawn to an appropriate scale to depict clearly all required information, photographs and text which shall include:
1. The boundary of the parcel(s) of land upon which the development is proposed.
2. The ordinary high water mark of all water bodies located adjacent to or within the boundary of the project. This may be an approximate location; provided, that for any development where a determination of consistency with the applicable regulations requires a precise location of the ordinary high water mark the mark shall be located precisely and the biological and hydrological basis for the location as indicated on the plans shall be included in the development plan. Where the ordinary high water mark is neither adjacent to nor within the boundary of the project, the plan shall indicate the distance and direction to the nearest ordinary high water mark of a shoreline.
3. Existing and Proposed Land Contours. The contours shall be at intervals sufficient to accurately determine the existing character of the property and the extent of proposed change to the land that is necessary for the development. Areas within the boundary that will not be altered by the development may be indicated as such and contours approximated for that area.
4. A delineation of all wetland areas that will be altered or used as a part of the development.
5. A general indication of the character of vegetation found on the site.
6. The dimensions and locations of all existing and proposed structures and improvements including but not limited to: buildings, paved or graveled areas, roads, utilities, septic tanks and drainfields, material stockpiles or surcharge, and stormwater management facilities.
7. Where applicable, a landscaping plan for the project.
8. Where applicable, plans for development of areas on or off the site as mitigation for impacts associated with the proposed project shall be included and contain information consistent with the requirements of this section.
9. Quantity, source and composition of any fill material that is placed on the site, whether temporary or permanent.
10. Quantity, composition and destination of any excavated or dredged material.
11. A vicinity map showing the relationship of the property and proposed development or use to roads, utilities, existing developments and uses on adjacent properties.
12. Where applicable, a depiction of the impacts to views from existing residential uses and public areas.
L. Copy of completed SEPA environmental checklist, declaration of nonsignificance or environmental impact statement, if required. Note that if the environmental review has not occurred prior to application for a shoreline permit, the time period for application review may be extended.
M. The names, addresses and legal description for each parcel of property within 300 feet of the exterior boundary of the subject property as shown by the records of the King County or Pierce County assessor.
N. Other information, plans, data and diagrams as required by the shoreline administrator.
The director shall determine if the application is complete based upon the information required by this chapter. The application may be submitted by the property owner, lessee, contract purchaser, other person entitled to possession of the property, or by an authorized agent. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 72, 1985; 1957 code § 11.94.040(a).)
16.08.050 Application – Notices.
The director shall give notice of the application in accordance with the applicable provisions of ACC 14.07.040, no less than 30 days prior to permit issuance.
The notices shall include a statement that any person desiring to present his view to the director with regard to the application may do so in writing to the director, and any person interested in the hearing examiner’s action on an application for a permit may submit his views or notify the director of his interest within 30 days of the last date of publication of the notice. Such notification or submission of views to the director shall entitle said persons to a copy of the action taken on the application. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 5811 § 5, 2003; Ord. 5170 § 1, 1998; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 73, 1985; 1957 code § 11.94.040(b).)
16.08.051 Statement of exemption.
Where development proposals in shoreline jurisdiction are subject to review, approval, and permitting by a federal or state agency, the director shall prepare a statement of exemption, addressed to the applicant, the federal or state permitting agency, and the Department of Ecology. The letter shall indicate the specific exemption provision from WAC 173-27-040 that is being applied to the development and provide a summary of the analysis demonstrating consistency of the project with the Auburn SMP and the SMA. (Ord. 6235 § 1, 2009.)
16.08.052 Application – Shoreline substantial development permit – Review criteria.
A. A substantial development permit shall be granted by the director only when the development proposed is consistent with the following:
1. Goals, objectives, policies and use regulations of the Auburn SMP;
2. Auburn Comprehensive Plan and Municipal Code; and
3. The policies, guidelines, and regulations of the SMA (Chapter 90.58 RCW; Chapters 173-26 and 173-27 WAC).
B. The director may attach conditions to the approval of permits as necessary to assure consistency of the proposal with the above criteria. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008.)
16.08.054 Application – Shoreline conditional use permit – Review criteria.
A. Pursuant to WAC 173-27-210, the criteria below shall constitute the minimum criteria for review and approval of a shoreline conditional use permit. Uses classified as conditional uses, and not uses prohibited by the regulations of this SMP, may be authorized; provided, that the applicant can demonstrate all of the following:
1. That the proposed use will be consistent with the policies of RCW 90.58.020, the policies of this SMP, the city of Auburn comprehensive plan and other applicable plans, programs and/or regulations;
2. That the proposed use will not interfere with the normal public use or access to public shorelines;
3. That the proposed use of the site and design of the project will be compatible with other permitted uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program;
4. That the proposed use will cause no unreasonably adverse effects to the shoreline, will not result in a net loss of ecological functions, and will not be incompatible with the environment designation or zoning classification in which it is to be located;
5. That the public interest suffers no substantial detrimental effect;
6. That the proposed use is in the best interest of the public health, safety, morals or welfare; and
7. That consideration of cumulative impacts resultant from the proposed use has occurred and has demonstrated that no substantial cumulative impacts are anticipated, consistent with WAC 173-27-160(4).
B. The director may attach conditions to the approval of permits as necessary to assure consistency of the proposal with the above criteria.
C. The decision of the hearing examiner shall be the final decision of the city. The Department of Ecology shall be the final authority authorizing a shoreline conditional use permit consistent with WAC 173-27-200. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008.)
16.08.056 Application – Shoreline variance – Review criteria.
A. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in this SMP, and where there are extraordinary or unique circumstances relating to the physical character or configuration of property such that the strict implementation of the SMP would impose unnecessary hardships on the applicant or thwart the SMA policies as stated in RCW 90.58.020. Requests for allowing uses different than those specifically identified as allowed in the shoreline environment cannot be considered in the variance process, but shall be considered through the conditional use process in ACC 16.08.080.
B. Pursuant to WAC 173-27-210, the criteria below shall constitute the minimum criteria for review and approval of a shoreline variance permit. Variance permits for development that will be located landward of the ordinary high water mark (per RCW 90.58.030(2)(b) definition), except those areas designated as marshes, bogs or swamps pursuant to Chapter 173-22 WAC, may be authorized, provided the applicant can demonstrate all of the following:
1. That the strict requirements of the bulk, dimensional or performance standards set forth in the master program preclude or significantly interfere with a reasonable use of the property not otherwise prohibited by this SMP;
2. That the hardship described above is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and not, for example, from deed restrictions or the applicant’s own actions;
3. That the design of the project will be compatible with other permitted activities within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment;
4. That the variance authorized does not constitute a grant of special privilege not enjoyed by other properties in the area, and will be the minimum necessary to afford relief; and
5. That the public interest will suffer no substantial detrimental effect;
6. Variance permits for development that will be located either waterward of the ordinary high water mark or within marshes, bogs or swamps as designated in Chapter 173-22 WAC, may be authorized, provided the applicant can demonstrate all the criteria stated above as well as the following:
a. That the strict application of the bulk, dimensional or performance standards set forth in this SMP precludes all reasonable use of the property not otherwise prohibited by this SMP; and
b. That the public rights of navigation and use of the shorelines will not be adversely affected by the granting of the variance.
C. In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted to other developments in the area where similar circumstances exist, the total of the variances should also remain consistent with the policies of Chapter 90.58 RCW and should not produce substantial adverse effects to the shoreline environment or result in a net loss of ecological functions.
D. The decision of the hearing examiner shall be the final decision of the city. The Department of Ecology shall be the final authority authorizing a shoreline variance consistent with WAC 173-27-200. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008.)
16.08.060 Application – Review criteria – Additional information.
A. The director shall review an application for a permit based on the following:
1. The application;
2. The environmental impact statement, if one has been prepared, or other environmental documents;
3. Written comments from interested persons;
4. Information and comments from other city departments affected and from the city attorney;
5. Independent study of the planning department staff and evidence presented at the public hearing held pursuant to provisions of this chapter.
B. The director may require that an applicant furnish information in addition to the information required in the application forms prescribed. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.040(c).)
16.08.070 Development conformance burden of proof.
The burden of proving that the proposed development is consistent with the criteria set forth in this chapter and the master plan for the city shall be on the applicant, plus the requirements pursuant to Section 14(6) of the Act. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.040 (d).)
16.08.080 Application – Hearing – Required.
A. The hearing examiner shall hold at least one public hearing on each application for a shoreline substantial development permit, shoreline conditional use permit, or shoreline variance on shorelines within the city. The public hearing shall be held not less than 30 days following the final publication of the notice required by ACC 16.08.050.
B. The notice and conduct of the public hearing shall be in accordance with Chapter 18.66 ACC. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.050(a).)
16.08.090 Application – Hearing – Official conducting.
The public hearing required by ACC 16.08.080 shall be conducted by the hearing examiner. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.050(b).)
16.08.100 Application – Hearing – Continuance.
If, for any reason, testimony on any matter set for public hearing, or being heard, cannot be completed on the date set for such hearing, the hearing examiner may, before adjournment or recess of such matters under consideration, publicly announce the time and place of the continued hearing and no further notice is required. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 74, 1985; 1957 code § 11.94.050(c).)
16.08.110 Application – Hearing – Decision.
When the hearing examiner renders a decision, the hearing examiner shall make and enter written findings from the record and conclusions thereof which support the decision. The findings and conclusions shall set forth the manner in which the decision is consistent with the criteria set forth in the State Act and departmental regulations. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 75, 1985; 1957 code § 11.94.050(d).)
16.08.120 Application – Hearing – Rules of conduct.
The hearing examiner shall have the power to prescribe rules and regulations for the conduct of hearings and to issue summonses for and compel the appearance of witnesses, to administer oaths, and to preserve order. The privilege of cross-examination of witnesses shall be accorded all interested persons or their counsel in accordance with the rules of the hearing examiner. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 76, 1985; 1957 code § 11.94.050 (e).)
16.08.130 Application – Decision final.
The decision of the hearing examiner shall be the final decision of the city, unless appealed to the State Shorelines Hearings Board, pursuant to ACC 16.08.190. On all applications the hearing examiner shall render a written decision and transmit copies of such decision to persons who are required to receive copies of the decision pursuant to ACC 16.08.140. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 77, 1985; 1957 code § 11.94.050 (f).)
16.08.140 Grant or denial decision – Notifications.
The director shall notify the following persons in writing of the hearing examiner’s final approval, disapproval or conditional approval of a substantial development permit, shoreline conditional use permit, or shoreline variance application within eight days of its final decision:
A. The applicant;
B. The State Department of Ecology;
C. The State Attorney General;
D. Any person who has submitted to the director written comments on the application;
E. Any person who has written the director requesting notification. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 78, 1985; 1957 code § 11.94.060(a).)
16.08.150 Development commencement time.
Development pursuant to a substantial development permit shall not begin and shall not be authorized until 21 days from the date the director files the approved substantial development permit with the State Department of Ecology and Attorney General, or until all review proceedings initiated within 21 days of the date of such filing have been terminated. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 79, 1985; 1957 code § 11.94.060(b).)
16.08.160 Termination or review and extension for nondevelopment.
Construction or substantial progress toward construction of a project for which a permit has been granted pursuant to this chapter must be undertaken within two years after permit approval or the permit shall terminate. If such progress has not been made, a new permit application will be required. If a project for which a permit has been granted has not been completed within five years after permit approval, the director shall, at the expiration of the five-year period, review the permit; and, upon a showing of good cause, either extend the permit for one year or terminate the permit; provided, that no permit shall be extended unless the applicant has requested such review and extension prior to the permit expiration date. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.060(c).)
16.08.170 Conditions or restrictions authorized.
In granting or extending a permit, the director may attach thereto such conditions, modifications and restrictions regarding the location, character and other features of the proposed development as he finds necessary to make the permit compatible with the criteria set forth in the Act and state departmental regulations. Such conditions may include the requirement to post a performance bond assuring compliance with other permit requirements, terms and conditions. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.060(d).)
16.08.180 Issuance limitations.
Issuance of a substantial development permit does not obviate requirements for other federal, state and county permits, procedures and regulations. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.060(e).)
16.08.190 Decision appeals.
Any person aggrieved by the granting, denying or rescission of a substantial development permit by the hearing examiner may seek review from the State Shorelines Hearings Board by filing a petition for review with the board within 21 days of the date of filing, as defined by RCW 90.58.140(6), of the council’s final decision. Within seven days of the filing of the petition for review with the board, the person seeking review shall serve a copy of his petition with the State Department of Ecology, the office of the Attorney General and the director. (Ord. 6235 § 1, 2009; Ord. 6186 § 3, 2008; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 80, 1985; 1957 code § 11.94.070.)
16.08.200 Rescission or modification.
A. Any permit granted pursuant to this chapter may be rescinded or modified upon a finding by the director that the permittee has not complied with the conditions of his permit.
B. The director may initiate rescission and modification proceedings by serving written notice of noncompliance on the permittee.
C. Before a permit can be rescinded or modified, a public hearing shall be held by the hearing examiner no sooner than 30 days following the service of notice upon the permittee. The hearing examiner shall have the power to prescribe rules and regulations for the conduct of such hearings. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; Ord. 4047 § 81, 1985; 1957 code § 11.94.080.)
16.08.210 Violation – Penalty.
A. The criminal and civil penalties contained in the provisions of the State Act are hereby adopted.
B. In addition to the penalties adopted in subsection A of this section, any violation of this chapter may be enforced pursuant to the provisions of Chapter 1.25 ACC. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4504 § 15, 1991; Ord. 4225 § 1, 1987; 1957 code § 11.94.090.)
16.08.220 Administration rules promulgation.
The director is authorized to adopt such rules as are necessary and appropriate to implement this chapter. The director may prepare and require the use of such forms as are necessary to its administration. (Ord. 6235 § 1, 2009; Ord. 6095 § 1, 2008; Ord. 4840 § 1, 1996; Ord. 4225 § 1, 1987; 1957 code § 11.94.100.)
For provisions of the Shoreline Management Act, see Ch. 90.58 RCW.