Chapter 22.05
APPLICABILITY, EXEMPTIONS, RELATIONSHIP TO OTHER REGULATIONS AND NONCONFORMITY

Sections:

22.05.010    Applicability.

22.05.020    Exemptions.

22.05.030    Relationship to other regulations.

22.05.040    Nonconformity.

22.05.010 Applicability.

A. All development and use of shorelines of the state shall be carried out consistent with this program and the policy of the Act as required by RCW 90.58.140(1), whether or not a shoreline permit as defined in Chapter 22.06 BMC is required for such development.

B. The provisions of this program shall apply to all shorelines of the state, all land uses, development activity, and all structures and facilities in the city.

C. This program shall apply to every person, partnership, firm, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city.

D. No person, company, agency, or applicant shall alter a shoreline except as consistent with the purposes and requirements of this program.

E. If development is exempt per the criteria in BMC 22.05.020, Exemptions, the provisions, development and performance standards within this program shall apply.

F. This program is to be administered with flexibility and attention to site-specific characteristics in the context of the watershed or other relevant ecosystem unit. It is not the intent of this program to make a parcel of property unusable by denying its owner all reasonable economic use of the property except in extremely limited or extraordinary circumstances that are determined to be not in the public interest. It is not intended to prevent the provision of public facilities and services necessary to support existing and planned development for/by the community.

G. As recognized by RCW 90.58.350, the provisions of this master program shall not apply to shorelands (uplands within shoreline jurisdiction) held in trust by the United States or by Indian nations/tribes. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.05.020 Exemptions.

A. Application and Interpretation of Exemptions.

1. Exemptions from a shoreline substantial development permit and process are allowed but are still subject to compliance with the requirements, thresholds and performance standards of this program (also found in WAC 173-27-040).

2. An exemption from the substantial development permit process is not an exemption from compliance with the State Shoreline Management Act or this master program, nor from any other regulatory requirements.

3. All uses and developments must be consistent with the policies and provisions of this master program and the Shoreline Management Act. A development or use that is listed as a conditional use pursuant to this master program or is an unlisted use must obtain a conditional use permit even though the development or use does not require a substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of the master program, such development or use can only be authorized by approval of a variance.

4. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemptions from the substantial development permit process.

5. The burden of proof that a development or use is exempt is on the applicant.

6. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project.

7. The planning and community development department has the authority to condition said exemptions as necessary to assure compliance with the shoreline goals and use policies of this program.

B. Exempt Developments.

1. The following activities shall be considered exempt from the requirement to obtain a shoreline substantial development permit:

a. Any development of which the total cost or fair market value, whichever is higher, does not exceed $6,416, as adjusted by the State Office of Fiscal Management every five years, if such development does not materially interfere with the normal public use of the water or shorelines of the state. For the purpose of determining whether or not a permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state as defined in RCW 90.58.030(2)(c). The total cost or fair market value of the development shall include the fair market value of any donated, contributed or found labor, equipment or materials;

b. Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements. “Normal maintenance” includes those usual acts to prevent a decline, lapse or cessation from a lawfully established condition. “Normal repair” means to restore a development to a state comparable to its original condition within a reasonable period after decay or partial destruction except where repair causes substantial adverse effects to the shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment;

c. Construction of the normal protective bulkhead common to single-family residences. A “normal protective” bulkhead includes those structural and nonstructural developments installed at or near and parallel to the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used for backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead, then the replacement bulkhead must be located at or near the actual ordinary high water mark. Beach nourishment and bioengineering erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the Department of Fish and Wildlife has approved the project;

d. Emergency construction necessary to protect property from damage by the elements. An “emergency” is an unanticipated and imminent threat to public health, safety or the environment that requires immediate action within a time too short to allow full compliance with this program. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to Chapter 90.58 RCW, Chapter 173-27 WAC or this program, obtained. All emergency construction shall be consistent with the policies of Chapter 90.58 RCW and this program. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency;

e. Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities, on shorelands, construction of a barn or similar agricultural structure, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels; provided, that a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

f. Construction or modification, by or under the authority of the Coast Guard or a designated port management authority, of navigational aids such as channel markers and anchor buoys;

g. Construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of 35 feet above average grade level and which meets all city requirements. “Single-family residence” means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal appurtenance as defined in BMC 22.10.010(A);

h. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single-family and multifamily residences. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances. The private dock exemption applies if either:

i. In saltwater, the fair market value of the dock does not exceed $2,500; or

ii. In fresh waters the fair market value of the dock does not exceed $10,000, but if subsequent construction having a fair market value exceeding $2,500 occurs within five years of the completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this title. For the purpose of this section saltwater shall include the tidally influenced marine and estuarine water areas of the state including the Strait of Georgia, local marine waters and all associated bays, inlets and estuaries;

i. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

j. The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

k. Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on June 4, 1975, which were created, developed or utilized primarily as a part of an agricultural drainage or diking system;

l. Any project with a certification from the governor pursuant to Chapter 80.50 RCW;

m. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this program, if:

i. The activity does not interfere with the normal public use of surface waters;

ii. The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality and aesthetic values;

iii. The activity does not involve the installation of any structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity;

iv. A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the administrator to ensure that the site is restored to preexisting conditions;

v. The activity is not subject to the permit requirements of RCW 90.58.550;

n. The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other state agencies under Chapter 43.21C RCW when conducted by or under the supervision of the Whatcom County noxious weed control board.

This exemption shall not apply to other individuals or groups that intend to remove or control noxious weeds as defined above within the shorelines of Lake Whatcom;

o. Watershed restoration projects as defined herein. The Department of Ecology shall review the projects for consistency with the shoreline master program in an expeditious manner and shall issue its decision along with any conditions within 45 days of receiving a complete application form from the applicant. No fee may be charged for accepting and processing applications for watershed restoration projects as used in this section. “Watershed restoration project” means a public or private project authorized by the sponsor of a watershed restoration plan that implements the plan or part of the plan and consists of one or more of the following activities:

i. A project that involves less than 10 miles of stream reach, in which less than 25 cubic yards of sand, gravel, or soil is removed, imported, disturbed or discharged, and in which no existing vegetation is removed except as minimally necessary to facilitate additional plantings;

ii. A project for the restoration of an eroded or unstable stream bank that employs the principles of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control erosive forces of flowing water; or

iii. A project primarily designated to improve fish and wildlife habitat, remove or reduce impediments to migration of fish, or enhance the fishery resource available for use by all of the citizens of the state; provided, that any structures, other than a bridge or culvert or in-stream habitat enhancement structure associated with the project, are less than 200 square feet in floor area and are located above the ordinary high water mark.

Watershed restoration plan means a plan (such as the restoration plan in Appendix B), developed or sponsored by the Department of Fish and Wildlife, the Department of Ecology, the Department of Transportation, a federally recognized Indian tribe acting within and pursuant to its authority, a city, a county or a conservation district, that provides a general program and implementation measures or actions for the preservation, restoration, recreation, or enhancement of the natural resources character and ecology of a stream, stream segment, drainage area or watershed for which agency and public review has been conducted pursuant to Chapter 43.21C RCW, the State Environmental Policy Act (SEPA). The restoration plan in Appendix B is a qualifying plan under this definition of which one or more of its elements could be implemented as an exempt activity;

p. A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, when all of the following apply:

i. The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to accomplish the intended purpose;

ii. The project received hydraulic project approval by the Department of Fish and Wildlife pursuant to Chapter 77.55 RCW; and

iii. The director has determined that the project is consistent with this program. The director shall make such determination in a timely manner and provide it by letter to the project proponent;

q. Hazardous Substance Remedial Actions. The procedural requirements of Chapter 90.58 RCW shall not apply to a project for which a consent decree, order or agreed order has been issued pursuant to Chapter 70.105D RCW or to the Department of Ecology when it conducts a remedial action under Chapter 70.105D RCW. The Department of Ecology shall, in consultation with the city, assure that such projects comply with the substantive requirements of Chapter 90.58 RCW, and Chapter 173-26 WAC and the local master program.

2. Statements of Exemption.

a. Whenever a development is determined by the city to be exempt from the requirement to obtain a shoreline substantial development permit and the development is subject to one or more of the following federal permits, a letter of exemption is required under the provisions of WAC 173-27-050:

i. U.S. Army Corps of Engineers Section 10 permit under the Rivers and Harbors Act of 1899; or

ii. A Section 404 permit under the Federal Water Pollution Control Act of 1972;

b. 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 city’s analysis of the consistency of the project with the master program and the Act;

c. The city shall administer the statement of exemption process as a Type I permit in accordance with BMC 21.10.100(E);

d. In the case of development that is subject to the regulations of this title but exempt from the shoreline substantial development permit requirements, a statement of exemption shall be obtained prior to issuance of the building and/or development permit. The building official may attach and enforce conditions to the building permit as required by applicable regulations of this program pursuant to RCW 90.58.140(1); provided, that no statement of exemption is required for emergency development pursuant to WAC 173-14-040(1)(d). [Ord. 2013-02-005 § 2 (Exh. 1)].

22.05.030 Relationship to other regulations.

A. The requirements within this program are in addition to those specified within BMC Title 20 (Land Use Development) and any other regulations adopted by the city that might apply, except with regard to critical areas that occur within the shoreline jurisdiction, the provisions of this program shall control.

B. The goals, policies and development regulations within this program intend to be consistent with other regulations and to the extent feasible implement shoreline elements within other plans adopted by the city. These include but are not limited to:

1. BMC Title 20 – Land Use Development;

2. Chapter 16.55 BMC – Critical Areas;

3. Chapter 16.60 BMC – Land Clearing;

4. Chapter 16.70 BMC – Grading;

5. Chapter 16.80 BMC – Lake Whatcom Reservoir Regulatory Provisions;

6. Chapter 15.42 BMC – Stormwater Management;

7. Bellingham Comprehensive Plan (2006);

8. The 23 individual neighborhood plans;

9. Waterfront Futures Group Framework and Action Plan and Guiding Principles (2004);

10. City of Bellingham Park, Recreation and Open Space Plan (2005);

11. Restoration Plan and Environmental Assessment for Whatcom Creek (2002);

12. Whatcom Creek Waterfront Action Plan (1998);

13. Watershed Master Plan (1995) currently being updated by public works; and

14. Squalicum Creek Floodplain Management Plan (1994).

C. The regulations within this program shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), per Chapter 16.20 BMC.

D. Compliance with the provisions of this program does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (e.g., building permits, hydraulic project approvals (HPAs), U.S. Army Corps of Engineers Section 404 and/or Section 10 permits, National Pollutant Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this program.

E. The Act and this program adopted pursuant thereto comprise the basic state and city law regulating use of shorelines in the city. In the event provisions of this program conflict with other applicable city policies or regulations, generally the more protective of shoreline resources shall prevail except this program shall regulate critical areas that occur within the shoreline jurisdiction and shall establish all permitted uses adjacent to and critical area buffers and setbacks from the ordinary high water mark of marine water, shoreline streams and wetlands, and Lake Whatcom and Lake Padden. (This revision is the result of an amendment to the city’s CAO; BMC 16.55.490(F)(4) that occurred during the spring of 2008; Ordinance 2008-04-036.)

F. In the case of development subject to the shoreline permit requirement of this program, the city shall not issue a building permit for such development until a shoreline permit has been granted; provided, that any permit issued by the building official for such development shall be subject to the same terms and conditions which apply to the shoreline permit.

G. In the case of zoning conditional use permits and/or variances for development that is also within the jurisdiction of this program, the hearing examiner shall attach conditions to such permits and variances as are required to make such development consistent with this program.

H. In the case of subdivision of land (but not including short subdivisions) within the jurisdiction of this program, the hearing examiner shall attach conditions to such approval as are required to make the design of such subdivision(s) consistent with this program. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.05.040 Nonconformity.

A. Any use, structure, lot or other site improvement (e.g., landscaping or signage), which was legally established prior to the effective date of the Shoreline Management Act or the shoreline master program, or amendments thereto that rendered it nonconforming, shall be considered nonconforming if:

1. The use or structure is now prohibited or cannot meet use limitations applicable to the area in which it is located; or

2. The use or structure does not comply with the development standards or other requirements of this code.

B. Abatement of Illegal Use, Structure or Development. Any use, structure, lot or other site improvement not established in compliance with use, lot size, building, and development standards in effect at the time of establishment shall be deemed illegal and shall be discontinued or terminated and subject to removal.

C. Continuation and Maintenance of Nonconformance. A nonconformance may be continued or physically maintained as provided by this code.

1. Any nonconformance that is brought into conformance for any period of time shall forfeit status as a nonconformance.

2. Discontinuation of Nonconforming Use. A nonconforming use shall not be resumed when abandonment or discontinuance extends for 12 consecutive months.

3. Repair or Reconstruction of Nonconforming Structure. Any structure nonconforming as to height or setback standards may be repaired or reconstructed; provided, that:

a. The extent of the previously existing nonconformance is not increased; and

b. The building permit application for repair or reconstruction is submitted within 12 months of the occurrence of damage or destruction.

4. Modifications to Nonconforming Structures. Modifications to a nonconforming structure may be permitted; provided, the modification does not increase the area, height or degree of an existing nonconformity.

D. Change or Intensification of a Nonconforming Use. A nonconforming use may be changed to another nonconforming use or intensified, subject to approval of a shoreline conditional use permit; provided, a new nonconformance with the structural standards shall not be created or increased except by approval of a shoreline variance.

E. Expansion of a nonconforming single-family residence shall be subject to approval of a Type II administrative conditional use permit provided the following conditions can be met (in addition to those in BMC 22.06.050(C), Conditional uses):

1. There is no future encroachment into the required buffer beyond the furthest extent of the foundation of the existing structure but not including foundations for patios, decks, pier abutments and other appurtenances.

2. The expansion is compliant with all other BMC requirements.

F. Nonconforming Lots. Any permitted use may be established on an undersized lot, which cannot satisfy the lot size or width requirements of BMC Title 18, Subdivisions; provided, that:

1. All other applicable standards of BMC Title 18, Subdivisions, are met; or a shoreline variance has been granted;

2. The lot was legally created and satisfied the lot size and width requirements applicable at the time of creation;

3. The lot cannot be combined with contiguous undeveloped lots to create a lot of required size;

4. No unsafe condition or circumstance contrary to the public interest is created by permitting development on the nonconforming lot; and

5. The lot was not created as a “special tract” to protect critical area, provide open space, or as a public or private access tract. [Ord. 2013-02-005 § 2 (Exh. 1)].