Chapter 22.06
SHORELINE PERMITS

Sections:

22.06.010    Permit process.

22.06.020    Submittal requirements.

22.06.030    Shoreline substantial developments.

22.06.040    Variances.

22.06.050    Conditional uses.

22.06.060    Fees.

22.06.070    Appeals.

22.06.080    State Environmental Policy Act (SEPA) compliance.

22.06.090    Expirations and extensions.

22.06.100    Permit revisions.

22.06.010 Permit process.

A. Development within shorelines that requires a shoreline substantial development permit (SSDP) or variance shall be processed as a Type II permit as specified in BMC 21.10.110.

B. Development within shorelines that requires a shoreline conditional use permit shall be processed as a Type III-A permit as specified in BMC 21.10.120.

C. Adjacent lands to shorelands shall also be considered in shoreline permit proposals as specified in RCW 90.58.340. “Adjacent,” in this case, is defined as those areas of a parcel that are outside of the shoreline jurisdiction as specified above but are under common ownership and being developed concurrent with those lands that are within shorelines. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.020 Submittal requirements.

A. General. All development proposals within shorelines or shorelands shall satisfy the application submittal requirements set forth in BMC 21.10.190(A).

B. Critical Areas. In addition to the general submittal requirements in subsection (A) of this section, development proposals within shorelines or shorelands that are also designated as critical areas shall also satisfy the applicable application submittal requirements as described in Appendix E. Where two or more types of critical areas are present, the critical areas report must meet the report requirements for each relevant type of critical area. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.030 Shoreline substantial developments.

A. A substantial development permit shall be obtained for all proposed use and development of shorelines unless the proposal is specifically exempt pursuant to BMC 22.05.020(A) and (B)(1).

B. Shoreline permits that include analysis and regulation of critical areas pursuant to BMC 22.08.030, Critical areas, shall comply with the applicable critical areas reports and mitigation plan submitted pursuant to BMC 22.06.020, Submittal requirements, as well as the general and specific performance standards specified in BMC 22.08.060 through 22.08.080.

C. In order to be approved, the director must find that the proposal is consistent with the following criteria:

1. All regulations of this program appropriate to the shoreline designation and the type of use or development activity proposed shall be complied with, except those bulk and dimensional standards that have been modified by approval of a shoreline variance under BMC 22.06.040, Variances.

2. All policies of this program appropriate to the shoreline designation and the type of use or development activity proposed shall be considered and substantial compliance demonstrated. A reasonable proposal that cannot fully conform to these policies may be permitted, provided it is demonstrated that the proposal is clearly consistent with the overall goals, objectives and intent of the program.

3. For projects located on shorelines of statewide significance, the policies of Chapter 22.04 BMC shall be also be adhered to.

D. Approval of Activities. The director shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary to minimize or mitigate any potential adverse impacts. Conditions may include, but are not limited to, the following:

1. Establishment of buffer zones;

2. Preservation of critically important vegetation and/or habitat features such as snags and downed wood;

3. Limitation of access to the habitat area, including fencing and signage to deter unauthorized access;

4. Seasonal restriction of construction activities;

5. Establishment of a duration and timetable for periodic review of mitigation activities; and

6. Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.040 Variances.

A. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in this program. Variances may be granted only where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of this program will impose an unnecessary hardship on the applicant or thwart the policies set forth within RCW 90.58.020.

B. Variance permits for development that will be located landward of the ordinary high water mark (OHWM) and within a shoreline and/or critical area buffer as specified in this program may be authorized provided the applicant can demonstrate all of the following:

1. That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes or significantly interferes with a reasonable use of the property not otherwise prohibited by the master program;

2. That the hardship described in subsection (A) of this section is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;

3. That the design of the project is compatible with other authorized uses in the area and with uses planned for the area under the comprehensive plan and this program and will not cause adverse effects to the shoreline environment;

4. That the requested variance does not constitute a grant of special privilege not enjoyed by the other properties in the area;

5. That the variance requested is the minimum necessary to afford relief; and

6. The public interest will suffer no substantial detrimental effect.

C. The department may impose additional conditions onto a variance approval as necessary to assure consistency with this program and that the policies set forth in RCW 90.58.020 are not thwarted.

D. Prior to application for a variance, the applicant shall demonstrate that the mitigation sequencing specified in this program has been used to design the project and avoid and/or minimize impacts to the extent feasible.

E. The applicant shall demonstrate that the proposal achieves a no net loss of ecological function.

F. Variance permits for development that will be located either waterward of the ordinary high water mark (OHWM), within the channel migration zone or frequently flooded area, where applicable, or within a critical area as described in this program, or within wetlands as defined by RCW 90.58.030 may be authorized provided the applicant can demonstrate all of the following:

1. That the strict application of the bulk, dimensional or performance standards set forth in this master program precludes all reasonable use of the property not otherwise prohibited by the master program;

2. That the proposal is consistent with the criteria established in this section; and

3. That the public rights of navigation and use of the shorelines will not be adversely affected.

G. 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 and/or uses in the area where similar circumstances exist, the total of the variances shall also remain consistent with the policies of this program and the Shoreline Management Act and shall not produce substantial adverse effects to the shoreline environment.

H. Requests for varying the use to which a shoreline area is to be put are prohibited and are not requests for variances, but rather requests for conditional uses.

I. Any variance granted by the city must be forwarded to the Department of Ecology for approval, approval with conditions, or denial as specified in WAC 173-27-200. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.050 Conditional uses.

A. The purpose of the conditional use provision is to provide more control and flexibility for implementing the regulations of the master program in a manner consistent with the policies of the Act. In authorizing a conditional use, special conditions may be attached to the permit by the city or department to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the Act and this program.

B. An applicant for a substantial development permit which also requires a conditional use permit shall submit applications for both permits simultaneously pursuant to Chapter 21.10 BMC.

C. Prior to the granting of a conditional use permit, as specifically required by this program or for uses which are not classified as such by this program, the applicant shall demonstrate all of the following:

1. The provisions spelled out in the master program have been met and the proposed use is consistent with the policies of the Act;

2. The proposed use will cause no significant, adverse impacts to the shoreline environment, ecological functions, or other uses;

3. The proposed use will not interfere with the normal public use of public shorelines;

4. That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and the program;

5. The proposed use will not be contrary to the purpose and intent of the environment designation in which it is located and the general intent of the master program;

6. The proposed use(s) shall provide a long-term public benefit in terms of providing public access or implementing habitat restoration that is consistent with the goals of this program; and

7. That the public interest shall suffer no substantial detrimental effect.

D. The hearing examiner or department may require additional conditions as are necessary to insure proper compliance with the intent and purpose of the environment designation and master program or to insure protection of the surrounding environment and uses.

E. In the granting of conditional use permits, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the sum of the conditional uses and their impacts shall also remain consistent with the policies of RCW 90.58.020 and shall not produce a significant adverse effect to the shoreline environment.

F. Any conditional use permit granted by the city must be forwarded to the Department of Ecology for its approval, or approval with conditions, or denial per WAC 173-27-160. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.060 Fees.

The city shall establish fees by resolution for filing permits under this title. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.070 Appeals.

A. Any person aggrieved by the granting, revising, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may, except as otherwise provided in Chapter 43.21L RCW, seek review from the shorelines hearings board by filing a petition for review within 21 days of the date of filing as defined in RCW 90.58.140(6).

B. Within seven days of the filing of any petition for review with the board as provided in this section pertaining to a final decision of the city, the petitioner shall serve copies of the petition on the Department of Ecology, the office of the Attorney General, and the city. The Department of Ecology and the Attorney General may intervene to protect the public interest and insure that the provisions of this program are complied with at any time within 15 days from the date of the receipt by the Department of Ecology or the Attorney General of a copy of the petition for review filed pursuant to this section. The shorelines hearings board shall schedule review proceedings on the petition without regard as to whether the period for the Department of Ecology or the Attorney General to intervene has or has not expired.

C. The Department of Ecology or the Attorney General may obtain review of any final decision granting or revising a permit, or granting or denying an application for a permit issued by the city by filing a written petition with the shorelines hearings board and the city within 21 days from the date the final decision was filed as provided in RCW 90.58.140(6).

D. The review proceedings authorized in subsections (A) and (B) of this section are subject to the provisions of Chapter 34.05 RCW pertaining to procedures in adjudicative proceedings. Judicial review of such proceedings of the shorelines hearings board is governed by Chapter 34.05 RCW. The board shall issue its decision on the appeal authorized under subsections (A) and (B) of this section within 180 days after the date the petition is filed with the board or a petition to intervene is filed by the Department of Ecology or the Attorney General, whichever is later. The time period may be extended by the board for a period of 30 days upon a showing of good cause or may be waived by the parties.

E. Appeal of city amendments to this master program shall be to the growth management hearings board pursuant to RCW 36.70A.280. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.080 State Environmental Policy Act (SEPA) compliance.

A. Shoreline permit or approval applications that are not categorically exempt shall be subject to environmental review by the responsible official pursuant to the State Environmental Policy Act (Chapter 197-11 WAC).

B. As part of the SEPA checklist review, the responsible official may require additional information regarding the proposed development in accordance with Chapter 197-11 WAC to make an equitable and reasonable determination of the development’s potential impact on the environment.

C. Failure of the applicant to submit sufficient information for a threshold determination to be made shall be grounds for refusal of the application by the responsible official.

D. The city’s substantive authority and basis for mitigation to condition or deny a proposal are set forth in WAC 197-11-660, and as established in other city codes. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.090 Expirations and extensions.

The following time requirements shall apply to all substantial development permits and to any development authorized pursuant to a variance or conditional use permit:

A. Upon a finding of good cause, based on the requirements and circumstances of the project proposed and consistent with the policy and provisions of the master program and the Act, the city may adopt appropriate time limits as a part of an action on a substantial development permit and the city, with the approval of the Department of Ecology, may adopt appropriate time limits as a part of action on a conditional use or variance permit. “Good cause based on the requirements and circumstances of the project” shall mean that the time limits established are reasonably related to the time actually necessary to perform the development on the ground and complete the project that is being permitted, and/or are necessary for the protection of shoreline resources.

B. Where neither the city nor the Department of Ecology includes specific provisions establishing time limits on a permit as a part of an action on the permit, the following time limits shall apply:

1. Construction shall be commenced or, where no construction is involved, the use or activity shall be commenced within two years of the effective date of a shoreline permit. Provided, that the city may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension is given to parties of record and the Department of Ecology.

2. Authorization to conduct development activities shall terminate five years after the effective date of a shoreline permit. Provided, that the city may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension is given to parties of record and the Department of Ecology.

3. The effective date of a shoreline permit shall be the date of the last action required on the shoreline permit and all other government permits and approvals that authorize the development to proceed, including all administrative and legal actions on any such permit or approval. It is the responsibility of the applicant to inform the city of other permit applications filed with agencies other than the city and of any related administrative and legal actions on any permit or approval. If no notice of the pendency of other permits or approvals is given to the city prior to the date established by the shoreline permit or the provisions of this section, the expiration of a permit shall be based on the shoreline permit.

4. When permit approval is based on conditions, such conditions shall be satisfied prior to occupancy or use of a structure or prior to commencement of a nonstructural activity; provided, that an alternative compliance limit may be specified in the permit.

5. Revisions to permits under WAC 173-27-100 may be authorized after original permit authorization has expired under subsection (B)(2) of this section; provided, that this procedure shall not be used to extend the original permit time requirements or to authorize substantial development after the time limits of the original permit.

6. The city shall notify the Department of Ecology in writing of any change to the effective date of a permit, as authorized by this section, with an explanation of the basis for approval of the change. Any change to the time limits of a permit other than those authorized by this section shall require a new permit application. [Ord. 2013-02-005 § 2 (Exh. 1)].

22.06.100 Permit revisions.

A. A permit revision is required whenever the applicant proposes substantive changes to the design, terms or conditions of a project from that which is approved in the permit. Changes are substantive if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the master program and/or the policies and provisions of Chapter 90.58 RCW. Changes that are not substantive in effect do not require approval of a revision.

B. When an applicant seeks to revise a permit, the city shall request from the applicant detailed plans and text describing the proposed changes.

C. If the city determines that the proposed changes are within the scope and intent of the original permit, and are consistent with the master program and the Act, the city may approve a revision. “Within the scope and intent of the original permit” means all of the following:

1. No additional over-water construction is involved except that pier, dock, or float construction may be increased by 500 square feet or 10 percent from the provisions of the original permit, whichever is less;

2. Ground area coverage and height may be increased a maximum of 10 percent from the provisions of the original permit;

3. The revised permit does not authorize development to exceed height, lot coverage, setback, or any other requirements of the master program except as authorized under a variance granted as the original permit or a part thereof;

4. Additional or revised landscaping is consistent with any conditions attached to the original permit and with the master program;

5. The use authorized pursuant to the original permit is not changed; and

6. No adverse environmental impact will be caused by the project revision.

D. Revisions to permits may be authorized after original permit authorization has expired under WAC 173-27-080(2). The purpose of such revisions shall be limited to authorization of changes which are consistent with this section and which would not require a permit for the development or change proposed under the terms of Chapter 90.58 RCW and this master program. If the proposed change constitutes substantial development then a new permit is required. Provided, this subsection shall not be used to extend the time requirements or to authorize substantial development beyond the time limits of the original permit.

E. If the sum of the revision and any previously approved revisions under former WAC 173-14-064 or this section violate the provisions in subsection (C) of this section, the city shall require that the applicant apply for a new permit.

F. The revision approval, including the revised site plans and text consistent with the provisions of WAC 173-27-180 as necessary to clearly indicate the authorized changes, and the final ruling on consistency with this section shall be filed with the Department of Ecology. In addition, the city shall notify parties of record of their action.

G. If the revision to the original permit involves a conditional use or variance, the city shall submit the revision to the Department of Ecology for the Department’s approval, approval with conditions, or denial, and shall indicate that the revision is being submitted under the requirements of this subsection. The Department shall render and transmit to the city and the applicant its final decision within 15 days of the date of the Department’s receipt of the submittal from the city. The city shall notify parties of record of the Department of Ecology’s final decision.

H. The revised permit is effective immediately upon final decision by the city or, when appropriate under subsection (G) of this section, upon final action by the Department of Ecology.

I. Appeals shall be in accordance with RCW 90.58.180 and shall be filed within 21 days from the date of receipt of the city’s action by the Department of Ecology or, when appropriate under subsection (G) of this section, the date the Department’s final decision is transmitted to the city and the applicant. Appeals shall be based only upon contentions of noncompliance with the provisions of subsection (C) of this section. Construction undertaken pursuant to that portion of a revised permit not authorized under the original permit is at the applicant’s own risk until the expiration of the appeals deadline. If an appeal is successful in proving that a revision is not within the scope and intent of the original permit, the decision shall have no bearing on the original permit. [Ord. 2013-02-005 § 2 (Exh. 1)].