Chapter 35.01
SHORELINE MANAGEMENT

Sections:

35.01.010    Purpose.

35.01.020    Definitions.

35.01.030    Reference to State laws and administrative codes.

35.01.040    Applicability and permit requirements.

35.01.050    Additional criteria for exemptions.

35.01.060    Nonconforming development standards.

35.01.070    Permit authorization and expiration.

35.01.080    Review by Shorelines Hearings Board.

35.01.090    Rescission – Service of notice.

35.01.100    County Master Program.

35.01.110    Inspection.

35.01.120    Revisions to shoreline permits.

35.01.130    Enforcement.

35.01.140    Conflicts – Master Program with other County land use regulations.

35.01.150    Real property assessments.

35.01.160    Severability.

35.01.170    Effective date.

SOURCE:    ADOPTED:

Ord. 44    04/19/73

AMENDED SOURCE:    ADOPTED:

Ord. 62    11/19/75

Ord. 134    04/28/81

Ord. 310    09/22/87

Ord. 358    10/10/89

Ord. 388    06/19/90

Ord. 490    11/03/92

Ord. 631    02/03/98

Ord. 650    10/20/98

Ord. 819    04/03/07

35.01.010 Purpose.

The purpose of this chapter is to implement the Shoreline Management Act of 1971 (Chapter 286, Laws of 1971, 1st Ex. Sess.), and to regulate development on the shorelines of the County in a manner consistent with the policy declared in Section 2 of that Act and consistent with the Clallam County Shoreline Master Program.

This chapter sets forth procedures for the administration of the Clallam County Shoreline Master Program, adopted by Clallam County in 1976, as amended, which sets forth polices, standards and guidelines for developments along the shorelines of Clallam County.

35.01.020 Definitions.

As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply. Other definitions related to shorelines are provided in the Shoreline Master Program. Any definition provided herein shall prevail over those definitions adopted in the Shoreline Master Program should a conflict arise:

(1) “Administrator” means the Director of the Department of Community Development or his/her designee, who is responsible for carrying out the administrative duties set forth in this code.

(2) “Advisory Committee” means the Clallam County Planning Commission or other appointed committee.

(3) “Board” means the Board of County Commissioners of Clallam County.

(4) Date of Filing. In accordance with WAC 173-27-130(6) and (7), the “date of filing” of an approved substantial development or a denied conditional use or variance permit with the Department of Ecology means the date that the complete application filing is received by Department of Ecology. The “date of filing” of an approved conditional use or variance permit concurrent with a substantial development permit means the date that the Department of Ecology makes a decision on the application and said decision is transmitted back to Clallam County.

(5) “Days” shall mean calendar days unless otherwise specified in this chapter. Should a deadline fall on a weekend or official holiday, the deadline date shall extend until 5:00 p.m. on the next working day.

(6) “Department” means the Washington State Department of Ecology.

(7) “Department of Community Development” means the Department of Community Development of Clallam County.

(8) Development. In accordance with WAC 173-27-030(6), “development” means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel or minerals including the grading of land; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level.

(9) “Conditional use” is defined by WAC 173-27-030(4) and regulated under WAC 173-27-160 and means a use, development, or substantial development which is classified as a conditional use or is not classified within the applicable Master Program.

(10) Exemption to Substantial Development Permit Requirements. In accordance with RCW 90.58.030(e), 90.58.140(9), 90.58.147, 90.58.355, and 90.58.515 and WAC 173-27-040 and this chapter, an application request and subsequent written statement of exemption to substantial development permit requirements is issued by the Administrator that a particular development proposal is exempt from the shoreline substantial development permit requirements as long as it is also generally consistent with the Master Program, including the policies of the Shoreline Management Act, RCW 90.58.020.

(11) “Extreme low tide” means the lowest line on the land reached by a receding tide.

(12) “Fair market value,” as defined by WAC 173-27-030(8), means the open market bid price for conducting the work, using the equipment and facilities, and purchase of the goods, services and materials necessary to accomplish the development. This would normally equate to the cost of hiring a contractor to undertake the development from start to finish, including the cost of labor, materials, equipment and facility usage, transportation and contractor overhead and profit. The fair market value shall include the fair market value of any donated, contributed or found labor, equipment or materials.

(13) “Floodplain,” as defined by WAC 173-22-030(4), for the purposes of this chapter, means the 100-year floodplain area as defined by the Federal Flood Management Agency which includes those lands along a water body which have been or may, with a one percent chance in any given year, be inundated by the base flood of such water body.

(14) “Floodway,” as defined by WAC 173-22-030(5), means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which floodwaters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetation ground cover condition. The floodway shall not include those lands that can reasonably be expected to be protected from floodwaters by flood control devices maintained by or maintained under license from the federal government, the State, or a political subdivision of the State.

(15) “Hearings Board” means the State Shorelines Hearing Board.

(16) “Master Program” means the Comprehensive Shoreline Use Plan for Clallam County, and the use regulations together with maps, diagrams, charts or other descriptive material and text, a statement of desired goals and standards developed in accordance with the policies enunciated in Section 2 of the Shoreline Management Act of 1971.

(17) “Nonconforming use” or “pre-existing nonconforming use,” as defined by WAC 173-27-080, means a shoreline use or structure that was lawfully constructed or established prior to the adoption of the Shoreline Master Program and this chapter, but which does not conform to present regulations or standards of the Master Program or policies of the Shoreline Management Act.

(18) “Ordinary high-water mark,” as defined by RCW 90.58.030(2)(b) and WAC 173-27-080, on all lakes, streams and tidal water is that mark which will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, or as it may naturally change thereafter; provided, that in any area where the ordinary high-water mark cannot be found, the ordinary high-water mark adjoining saltwater shall be the line of mean higher high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high water.

(19) “Person” means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the State or any local governmental unit however designated.

(20) “Road Department” means the Road Department of Clallam County.

(21) “Shorelands” or “shoreland areas,” as defined by RCW 90.58.030(2)(f), means those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all wetlands and river deltas associated with the streams, lakes and tidal waters which are subject to this chapter and as designated by the Department of Ecology. Any county or city may determine that portion of a 100-year floodplain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward 200 feet therefrom.

(22) “Shorelines” means all of the water areas within the unincorporated portion of Clallam County, including reservoirs, and their associated wetlands and 100-year floodplains, together with the lands underlying them except:

(a) Shorelines of State-wide significance;

(b) Shorelines on segments of streams upstream of a point where the mean annual flow is twenty (20) cubic feet per second or less and the wetlands associated with such upstream segments; and

(c) Shorelines on lakes less than twenty (20) acres in size and wetlands associated with such small lakes.

(23) “Shorelines of State-wide significance” means those shorelines described in Section 3(2)(e) of the Shoreline Management Act of 1971 and listed in Appendix A of the Shoreline Master Program, as amended, and Chapter 173-18 WAC, as amended, which are within the unincorporated portion of Clallam County.

(24) “Shorelines of the County” are the total of all “shorelines” and “shorelines of State-wide significance” within the County.

(25) “Substantial development” means any development of which the total cost or fair market value exceeds $2,500, or any development which materially interferes with the normal public use of the water or shorelines of the County unless it meets the definition of an exemption to the substantial development permit requirements as provided in RCW 90.58.030(3)(e) and WAC 173-27-040.

(26) “Substantial development permit” means the shoreline management substantial development permit provided for in Section 14 of the Shoreline Management Act of 1971 (RCW 90.58.140).

(27) “Variance” is that defined pursuant to WAC 173-27-170.

(28) “Wetlands” or “wetland areas,” as defined by RCW 90.58.030(2)(g), are areas inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in similar areas. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

35.01.030 Reference to State laws and administrative codes.

This chapter adopts Chapter 90.58 RCW and Chapter 173-27 WAC, as amended.

35.01.040 Applicability and permit requirements.

(1) Applicability. The requirements set forth by this chapter apply to those lands within 200-feet of the ordinary high-water mark of a shoreland and any associated wetland, floodway, or 100-year floodplain where applicable.

(2) Permit Requirements. Any development regulated by this Chapter requires one of the following types of permit approvals prior to site preparation or construction of said activity:

•    

Substantial development permit (Type III permit pursuant to Chapter 26.10 CCC), and/or

•    

Conditional use (Type III permit pursuant to Chapter 26.10 CCC), and/or

•    

Variance (Type III permit pursuant to Chapter 26.10 CCC), or

•    

Exemption to a substantial development permit (Type I permit pursuant to Chapter 26.10 CCC).

(3) Review criteria for all proposed developments which are subject to this chapter includes the following:

(a) All developments proposed on the shorelines of the County shall be consistent with the policies of the Shoreline Management Act of 1971, Chapter 90.58 RCW and the Clallam County Shoreline Master Program.

(b) All developments proposed on the shorelines of the County shall be consistent with the Chapter 27.12 CCC, Interim Critical Areas Code, as it applies, as amended.

(c) All developments proposed on the shorelines of the County shall be consistent with the Chapter 32.01 CCC, Floodplain Management Code, as it applies, as amended.

(d) All developments proposed on the shorelines of the County shall be consistent with the CCC Title 31, Clallam County Comprehensive Plan, as it applies, as amended.

(e) All developments proposed on the shorelines of the County shall be consistent with CCC Title 33, Clallam County Zoning Code, as it applies, as amended.

(f) All developments proposed on the shorelines of the County shall be consistent with Chapter 27.01 CCC, Clallam County Environmental Code, as it applies, as amended.

(g) All development proposed on the shorelines of the County shall be consistent with adopted watershed plans, flood management or reduction plans as they apply.

(4) Permit Processing.

(a) Requirements for public notice, hearings, permit decisions and appeals for developments subject to this chapter are provided in Chapter 26.10 CCC, Consolidated Development Permit Process Code.

(b) Shoreline substantial development, conditional use and variance permits shall be processed in accordance with Chapter 26.10 CCC, Consolidated Development Permit Process Code.

(c) Shoreline exemptions shall be processed in accordance with Chapter 26.10 CCC, Consolidated Development Permit Process Code whereby the Administrator has the authority to approve, approve with conditions, or deny such requests in accordance with this chapter and the Shoreline Management Act.

(5) Prohibitions within the Shoreline Jurisdiction.

(a) Surface drilling for oil and gas is prohibited in all waters of Puget Sound north to the Canadian boundary, including Hood Canal, and in the Strait of Juan de Fuca from the ordinary high-water mark seaward to the Canadian national boundary and on all lands within 1,000 feet landward from the ordinary high-water mark within Clallam County.

(b) No permit shall be issued for any new or expanded building or structure of more than thirty-five (35) feet above average grade level on shorelines of the County that will obstruct the view of a substantial number of residences in adjoining areas unless the Master Program permits the same and then such permits shall be granted only when overriding considerations of the public interest will be served.

35.01.050 Additional criteria for exemptions.

(1) Any person undertaking a development within the shorelines of the State which is not a substantial development, variance or conditional use must apply to the Department of Community Development for a statement of exemption from the Shoreline Management Act substantial development permit requirements.

(2) A statement of exemption shall be required for any project with a certification from the Governor pursuant to Chapter 80.50 RCW; a substantial development permit shall not be required for any project with this certification.

(3) The expedited permit process set forth by Second Substitute House Bill 2879 (Chapter 249, Laws of 1998) for fish habitat or passage improvement projects is hereby adopted by Clallam County. This process sets forth a requirement that the applicant notify Clallam County of the request for a permit waiver which includes local shoreline exemption permits and any associated permit fees for those projects which qualify for this waiver. The request shall be in the form of a Joint Aquatic Resources Permit Application (JARPA). Qualified projects must meet the criteria set forth by the legislation which shall include any County-sponsored projects.

(a) Clallam County hereby adopts the joint aquatic resource permit application form as an alternative shoreline exemption permit application form.

(b) Upon receipt of an application deemed to be qualified by Washington State Department of Fish and Wildlife, Clallam County shall provide comments within fifteen (15) days to the Department of Fish and Wildlife and also the applicant. These comments shall include whether or not the proposal is consistent with the following:

(i) All developments proposed on the shorelines of the County shall be consistent with the policies of the Shoreline Management Act of 1971, Chapter 90.58 RCW and the Clallam County Shoreline Master Program.

(ii) All developments proposed on the shorelines of the County shall be consistent with the Chapter 27.12 CCC, Interim Critical Areas Code, as it applies, as amended.

(iii) All developments proposed on the shorelines of the County shall be consistent with the Chapter 32.01 CCC, Floodplain Management Code, as it applies, as amended.

(iv) All development proposed on the shorelines of the County shall be consistent with adopted watershed plans, flood management or reduction plans as they apply.

(c) Any fish enhancement or passage improvement project that is constructed or completed without obtaining approval of a waiver by Clallam County in accordance with Chapter 249, Laws of 1998 shall be deemed a violation of the following regulations, as they now apply or are hereafter amended: this chapter, the Clallam County Shoreline Master Program; Chapter 32.01 CCC, Clallam County Floodplain Management Code; Chapter 27.12 CCC, Interim Critical Areas Code; and Chapter 90.58.147 RCW. Such projects are subject to violation and enforcement procedures set forth by these regulations.

(4) For those shoreline protection structures that qualify as a shoreline exemption, the Administrator shall allow for up to a ten (10) percent increase for any fill placement or removal for the purposes of maintenance for a period of one year from the date of approval of the request; provided, that the compliance with Chapter 43.21C RCW, State Environmental Policy Act and all other applicable regulations are made.

35.01.060 Nonconforming development standards.

As provided in WAC 173-27-080, the following standards apply to all pre-existing, nonconforming developments, including uses and structures in the County.

(1) A pre-existing, nonconforming development, use or structure may be continued and maintained provided that it is not enlarged, intensified, increased, or altered in any way which increases its nonconformity, including further encroachment into a setback, except that a single-family dwelling located landward of the ordinary high water mark may be enlarged or expanded in conformance with applicable bulk and dimensional standards by the addition of space to the main, legally established, structure, or by the addition of a normal appurtenance as defined by WAC 173-27-040(2)(g) upon approval of a conditional use permit. This provision applies only to the specific development that exists on the effective date of the Shoreline Management Act, the Master Program, or amendments thereto. [WAC 173-27-080(2-5)].

(2) A pre-existing, nonconforming development, or portion of such development, may be converted to another nonconforming development upon approval of a conditional use permit. [WAC 173-27-080(6)].

(3) If a pre-existing, nonconforming development is damaged to an extent not exceeding seventy-five (75) percent replacement cost of the original structure as calculated on a cumulative basis, it may be reconstructed to those configurations existing immediately prior to the time the structure was damaged, so long as restoration is completed within one year of the date of damage. [WAC 173-27-080(8)]

(4) If a pre-existing, nonconforming development is discontinued for twelve (12) consecutive months or for twelve (12) months during any two (2) year period, any subsequent use shall be conforming. It shall not be necessary to show that the owner of the property intends to abandon such nonconforming development in order for the rights to expire. [WAC 173-27-080(9)]

(5) Normal maintenance of pre-existing, nonconforming developments includes those usual acts to prevent a decline or lapse or cessation from a lawfully established condition, does not enlarge or intensify, increase or alter the development so as to increase its nonconformity, and shall include replacing a failing on-site sewage disposal system, provided the replacement system complies fully with the requirements of WAC 246-272-16501, Repair of Failures.

(6) An undeveloped lot, tract, parcel, site, or division which was lawfully established prior to the effective date of the Shoreline Management Act or the Master Program but which does not conform to the present lot size, density standards, or lot width requirements may be developed so long as such development conforms to other requirements of the Shoreline Management Act and Master Program. [WAC 173-27-080(10)]

35.01.070 Permit authorization and expiration.

(1) The Administrator shall deliver to the following persons copies of the application and the approval, conditional approval or disapproval of a substantial development, conditional use, or variance permit application in accordance with Chapter 26.10 CCC:

(a) The applicant;

(b) The Department;

(c) The Washington State Attorney General;

(d) Any person who has written requesting notification.

(2) Development pursuant to a substantial development permit shall not begin and shall not be authorized until twenty-one (21) days from the date the Administrator files the approved substantial development permit with the Department of Ecology and Attorney General, or until all review proceedings initiated within twenty-one (21) days of the date of such filing have been terminated.

(3) Issuance of a substantial development, conditional use, or variance permit does not obviate requirements for other federal, State and County permits, procedures and regulations.

(4) Construction or substantial progress toward construction of a project, as defined pursuant to WAC 173-27-090(1), for which a substantial development, conditional use or variance permit has been granted pursuant to this chapter must be undertaken within three years after the approval of the permit by local government or the permit shall terminate and no extensions may be granted. If such progress has not been made, a new permit will be necessary.

(5) Construction or substantial progress toward construction of a project meeting the criteria for an exemption must be undertaken within one year after the approval by the local government or the permit shall terminate and no extensions may be granted.

(6) No substantial development, conditional use or variance permit authorizing construction shall extend for a term of more than five years. If a project for which a permit has been granted has not been completed within five years after the approval of the permit the Administrator shall, at the expiration of the five-year period, review the permit, and upon a showing of good cause, extend the permit for one year; otherwise, the permit terminates; provided, that no permit shall be extended unless the applicant has requested such review and extension prior to the permit expiration date.

(7) The effective date of the permit shall be the date of the last action required on the shoreline permit or exemption that authorizes the project to proceed, including all administrative or legal actions on any such approval.

(8) Any construction begun prior to the completion of said reviews and appeal periods is not authorized and shall be at the applicant’s own risk and may result in a potential violation of this chapter.

35.01.080 Review by Shorelines Hearings Board.

Any person aggrieved by the granting, denying or rescission of a substantial development, conditional use or variance permit by the Hearing Examiner or Board of County Commissioners may seek review from the Hearings Board in accordance with those procedures provided for under RCW 90.58.180 and those regulations adopted by the Shorelines Hearings Board.

35.01.090 Rescission – Service of notice.

(1) Any permit granted pursuant to this chapter may be rescinded or modified upon a finding by the Administrator that the permittee has not complied with the conditions of the permit using the “notice and orders” provisions of CCC Title 20, Code Compliance, and mailing copies of the notice and order by regular mail to the applicant, agencies, and interested parties to include adjacent property owners defined by Chapter 26.10 CCC.

(2) Following rescission of a shoreline permit, the Prosecutor shall initiate legal proceedings to abate the action or development which is not in compliance with the approved permit application or which is inconsistent with the Master Program.

35.01.100 County Master Program.

(1) All guidelines and the Master Program adopted or approved and this chapter shall be available for public inspection at the office of the Board, the Department of Community Development and the County Auditor.

(2) The Planning Commission or other designated appointed committee shall periodically review the Master Program for Clallam County and recommend such amendments as are necessary. Such amendments shall be submitted to the Board of Clallam County Commissioners for their action prior to submittal to the Department in accordance with Chapter 173-26 WAC. No such amendment shall become effective until adopted by the Department.

(3) When necessary to achieve implementation of the Master Program, the Board may either alone or in concert with other governmental entities acquire lands and easements which improve access to the shorelines of the County; said acquisition may be accomplished by purchase, lease, or gift.

(4) The Department of Community Development and the Clallam County Planning Commission shall review all administrative and management policies, regulations, plans and ordinances relative to lands in Clallam County adjacent to the shorelines of the County and recommend appropriate action to the Board so as to achieve a land use policy on said land consistent with the policy of this chapter, the Shoreline Management Act of 1971, the guidelines and the Master Programs for Shorelines of the County. The Department of Community Development, Planning Commission, and Board, in reviewing land use regulations for such areas, shall take into consideration any recommendations developed by the Department as well as any other State agencies or units of local government.

35.01.110 Inspection.

The Administrator may inspect properties as necessary to determine whether permittees have complied with conditions of their respective permits and, whenever there is reasonable cause to believe that development has occurred upon any premises in violation of the Shoreline Management Act of 1971 and this chapter, may enter upon such premises pursuant to the provisions of the “right of entry and warrants” section (CCC 20.08.090) of CCC Title 20, Code Compliance, at all reasonable times to inspect the same.

35.01.120 Revisions to shoreline permits.

(1) Clallam County adopts, by reference, WAC 173-27-100 (Revisions to Substantial Development, Conditional Use, and Variance Permits) and any subsequent amendments adopted thereto.

(2) Applications for revisions to shoreline permits shall be on a form prescribed by the Administrator and shall be accompanied by a filing fee in the amount established under Chapter 5.100 CCC.

(3) Upon receipt of a complete application for a revision to a shoreline permit and upon payment of the fees, the Administrator shall make a written decision of approval, conditional approval or denial within 10 working days of receipt of the application.

(4) The action of the Administrator may be appealed to the Hearing Examiner in accordance with Chapter 26.10 CCC.

35.01.130 Enforcement.

(1) If a violation is confirmed, the Administrator shall initiate code compliance proceedings according to the provisions of CCC Title 20, Code Compliance, except to the extent the provisions of said code compliance title are preempted by State law as set forth in RCW 90.58.210, 90.58.220, 90.58.230, and WAC 173-27-240 through 173-27-300, as amended.

(2) The Clallam County Prosecuting Attorney shall bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the County in conflict with the provisions and programs of this chapter or the Shoreline Management Act of 1971, and to otherwise enforce the provisions of this chapter and the Shoreline Management Act of 1971.

(3) Any person subject to the regulatory program of this chapter who violates any provision of this chapter or the provisions of a permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to such violation. The Clallam County Prosecuting Attorney shall bring suit for damages under this subsection on behalf of the County. Private persons shall have the right to bring suit for damages under this subsection on their own behalf and on behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation, the court shall make provision to assure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such relief, including money damages, the court in its discretion may award attorney’s fees and costs of the suit to the private person bringing suit, where he prevails.

(4) Clallam County shall not issue any permit, license, or other development approval on a development proposal site subject to an enforcement order under this section; provided, that Clallam County may issue such permits to rectify or correct enforcement orders.

35.01.140 Conflicts – Master Program with other County land use regulations.

Where other County land use regulations are in conflict with the Master Program, the more restrictive regulation shall apply and such application shall extend only to those specific provisions which are more restrictive unless otherwise specified.

35.01.150 Real property assessments.

The restrictions imposed by the Shoreline Master Program shall be considered by the County Assessor in establishing the fair market value of the property.

35.01.160 Severability.

If any provision of this chapter or its application to any person or legal entity or circumstances is held invalid, the remainder of the chapter or the application of the provision to other persons or legal entities or circumstances shall not be affected.

35.01.170 Effective date.

This chapter shall take effect 10 days after the date of adoption.