Chapter 18.12
GENERAL ADMINISTRATION
Sections:
18.12.030 Severability and validity.
18.12.040 Scope and compliance.
18.12.060 Conflict of provisions.
18.12.070 Responsibility and authority.
18.12.100 Forms and supportive documentation.
18.12.120 Security mechanisms.
18.12.140 Waiving vested rights.
18.12.010 Authority.
This division is adopted by the city of Rainier pursuant to Chapter 36.70A RCW et seq., Growth Management—Planning by Selected Counties and Cities. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.020 Repeal/savings.
Title 18 of the Rainier Municipal Code, known as “Title 18—Comprehensive Plan/Zoning,” is hereby repealed in its entirety and replaced with this and supplemental development regulation divisions as subsequently adopted; provided, that such repeal shall not affect the validity of any permit lawfully issued thereunder, nor any pending enforcement action. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.030 Severability and validity.
The sections, paragraphs, sentences, clauses, and phrases of this division are severable. If any section, paragraph, sentence, clause, or phrase is declared unconstitutional or otherwise invalid by any court of competent jurisdiction in a valid judgment or decree, such unconstitutionality or invalidity shall not affect any of the remaining sections, paragraphs, sentences, clauses, or phrases of this division, which shall continue in full force and effect. Further, if any section, paragraph, sentence, clause, or phrase of this division is adjudged invalid or unconstitutional as applied to a particular property, use, building, or other structure, the application of said portion of this division to other property, uses, buildings, or structures shall not be affected. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.040 Scope and compliance.
The provisions of this division shall apply to all incorporated areas of the city of Rainier, Washington. A parcel of land or water area may be used, developed by land division or otherwise, and a structure may be used or developed by construction, reconstruction, alteration, occupancy or otherwise only as this division or appropriate development regulation divisions permit. Each development shall comply with the applicable standards set forth in this division and other appropriate Rainier Municipal Code divisions. The requirements of this division apply to the property owner, the person undertaking a development, the user of a development, and any successors in interest. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.050 Consistency with comprehensive plan, development regulations and State Environmental Policy Act.
A. When the city initiates an action or receives an application for an action, consistency between the proposed project and the applicable regulations and comprehensive plan will be considered using the processes set forth in this division and Division 4 of this title, State Environmental Policy Act (SEPA).
B. Initial SEPA Analysis. The city shall review the application pursuant to the State Environmental Policy Act (Division 4 of this title, State Environmental Policy Act (SEPA)), and the responsible official shall render a threshold determination pursuant to WAC 197-11-310.
C. During project permit application review, the city shall determine whether the proposed project complies with applicable development regulations. In the absence of applicable zoning regulations, the city shall determine whether the proposed project is consistent with the comprehensive plan. This determination of consistency shall include the following:
1. The type of land uses permitted at the site, including uses that may be allowed under certain circumstances, if the criteria for their approval are satisfied;
2. The level of development, such as the number of units per acre, density of residential development in urban growth areas, or other measures of density;
3. Availability and adequacy of infrastructure, including public facilities and services identified in the comprehensive plan, if the plan or development regulations provide for funding of these facilities as required by RCW 36.70A.120; and
4. Characteristics of the development, as provided in this division. In deciding whether a project is consistent, the determinations made pursuant to this section shall be controlling. The determination of consistency shall not prohibit the city from denying, conditioning, or mitigating impacts due to other aspects of the project. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.060 Conflict of provisions.
The standards, procedures and requirements of this chapter are the minimum necessary to promote the health, safety, and welfare of the residents of the city. The city is free to adopt more rigorous or different standards, procedures and requirements whenever this becomes necessary. If the provisions of this chapter conflict or overlap one with another, or if a provision of this chapter conflicts or overlaps with the provision of another ordinance of the city, the most restrictive provision or the provision imposing the highest standard prevails. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.070 Responsibility and authority.
A. The city is charged with the responsibility of administering the provisions of this division.
B. The designee is authorized and empowered to make administrative decisions and determinations pursuant to Section 18.20.020, Administrative interpretations.
C. The designee is authorized to revoke any permit issued to the permit holder who fails to comply with this code or conditions of the permit approval, or if there was a permit issued in error or based on false or misleading information.
D. If the city erroneously issues a building or land use permit, the city must appeal that issuance under LUPA within twenty-one (21) days. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.080 Official records.
A. The designee is charged with the responsibility of compiling and maintaining an official file on each application or petition submitted under this division, consisting of the following, if applicable:
1. Application or petition materials submitted by the applicant or appellant;
2. Staff reports;
3. Copies of any public notifications;
4. Written testimony received;
5. Record of any public hearing held;
6. Written decision of the granting authority; and
7. Other information relevant as judged by the staff member assigned to the project.
B. The official file is a public record, which shall be maintained and made available for public inspection consistent with the city’s retention schedule and laws governing public disclosure. Availability may be temporarily disrupted prior to, or during, public hearings while staff is preparing for the hearing. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.090 Burden of proof.
Except for city-proposed actions, the burden of proof is upon the proponent. The greater the impact of the proposal to the area, the greater the burden upon the proponent. The proposal shall not be approved unless the applicant has provided evidence demonstrating that the proposal conforms to the applicable elements of the comprehensive plan and provisions of this division, especially the specific criteria set forth for the particular type of decision under consideration. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.100 Forms and supportive documentation.
The designee is charged with the responsibility of creating and developing administrative guidelines, applications, maps, charts, reference materials, forms, brochures, handouts and other tools to aid the public, applicants, staff, and decision-makers in interpreting and administering this division. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.110 Fees.
A. The designee is charged with the responsibility of collecting appropriate fees charged to applicants for any permits or discretionary approval processes provided for in this division. The amount of the fees charged shall be as established by resolution of the city council filed in the office of the city clerk and may be, from time to time, changed without amendment to this division.
B. Fees shall be paid upon submission of a signed development application or petition for appeal, or as otherwise provided by any fee resolution or ordinance adopted by the city. In the event the resolution does not clearly establish a fee for the application or petition, the designee is authorized to charge the applicant based on the hourly rates established for the appropriate staff member. A department of the city of Rainier shall not be required to pay application fees when applying for a permit regulated under any municipal code title. Where such an application will require substantial review time or expenditures, the city may direct that the department initiating the application request to reimburse the community development department for some or all of costs expended for any required review.
C. Work without an Application or Permit.
1. Whenever any work for which an application and/or project permit is required by this or any development regulation division, and has commenced without first obtaining approval of said application, a special investigation fee shall be assessed before a permit may be issued for such required work.
2. An investigation fee, in addition to the application or permit fee, shall be collected whether or not an application is then subsequently issued. The investigation fee shall be based on the hourly rate of the staff member conducting the investigation, with a one-hour minimum to apply to any investigation. The payment of such investigation fee shall not exempt any person from compliance with all other provisions of this code nor from penalties prescribed by law.
D. If so allowed by the governing municipal code, the designee may authorize a full or partial refund of any fee when an application is withdrawn. The refund shall be based on the estimated expenditure of staff resources at the time of the withdrawal of the application. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.120 Security mechanisms.
A. The purpose of this section is to provide the city with financial mechanisms to ensure that conditions, requirements and all applicable provisions of this division associated with permit approvals are met. The city may require a cash guarantee, letter of credit or the posting of a performance, completion, or maintenance bond, or its equivalent, with the city, to ensure the subsequent completion and continued maintenance of all permit conditions. Permits for single-family residences, except related stormwater facility or road improvements, are exempt from this requirement.
B. Bonding.
1. A surety bond or equivalent shall be in a form acceptable to the city and shall represent a percentage of the estimated cost of design, materials, and labor related to the project in question, based on the estimated costs on the last day covered by the device, of installing, replacing, or repairing, as appropriate, the improvements covered by the security, as agreed to by the designee.
a. Performance and/or Completion Bond. One hundred twenty-five percent (125%) of the costs specified in subsection (B)(1) of this section, for the duration specified by the city, or until all improvements are installed and accepted by the city, whichever is less.
b. Maintenance Bond. Twenty percent (20%) of the costs specified in subsection (B)(1) of this section, for the duration specified by the city, or until the city is satisfied that maintenance shall continue, whichever is less. However, the bond or equivalent shall be extended if repairs are made at the end of the bonding period, which, in the opinion of the designee, require additional guarantee of workmanship.
2. The surety bond or equivalent, if required, may be presented to the city after preliminary approval of a project, but in all circumstances shall be presented prior to the issuance of a site development permit. The conditions of performance to which the bond is subject shall be listed on the permit attached thereto. No final certificate of occupancy, or other permit for which a bond is required, shall be issued until all such conditions are satisfied. All securities shall be held until released by the designee.
C. In each case where a security is posted, the applicant and the designee shall sign a notarized security agreement. The agreement shall provide the following information:
1. A description of the work or improvements covered by the security.
2. Either the period of time covered by the maintenance security or the date after which the city will use the proceeds of the performance security to complete the required work or improvements.
3. The amount and nature of the security and the amount of any cash deposit.
4. The rights and duties of the city and applicant.
5. An irrevocable easement or other authority to allow the employees, agents, or contractors of the city to enter the subject property for the purpose of inspecting and, if necessary, performing the work or making the improvements covered by the security.
6. The applicant may request that the city release the security after the work or improvements covered by a performance security have been completed, or at the end of the time covered by a maintenance security. The designee shall release the remaining security when the applicant has complied with the security agreement and applicable permit conditions. If the work has not been completed or repairs not made, then the city shall not release the security until such work is completed. Partial release of the security may be allowed, provided the developer provides a new security equal to one hundred twenty-five percent (125%) of the cost of the remaining work.
D. During the period of time covered by a maintenance security, or after the date by which the required work or improvements are to be completed under a performance security, if the designee determines that the security agreement has not been complied with, the city shall so notify the applicant. The notice must state:
1. Work or improvements that must be completed to comply with the security agreement; and
2. Amount of time that the applicant has to commence and complete the required work or improvements; and
3. If not commenced and completed within the time specified, the city will use the proceeds of the security to complete the work or improvements.
E. If the work or improvements covered by the security are not completed within the time specified in the notice, the city shall obtain the proceeds of the security and cause such work to be completed.
F. The applicant shall be responsible for all costs incurred by the city in administering, maintaining, or making the improvements covered by the security. The city shall release or refund the balance of the remaining security after subtracting all costs for completing the work. The applicant shall reimburse the city for any amount expended by the city that exceeds the proceeds of the security. The city may file a lien against the subject property for the amount of any excess.
G. In each case where the city uses any of the funds of a security, it shall give the applicant an itemized statement of all funds used. (Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.130 Enforcement.
A. The purpose of this section is to provide the authority and procedures for the revocation, modification, and expiration of permits and approvals granted pursuant to city regulations, and this section applies to violations of any provision of Divisions 2, 3, 4, 5, and 6 of this title unless specifically provided within those divisions.
B. Responsibility of Enforcement. It shall be the duty of the community development department to enforce the provisions of all development regulations to protect the public and minimize deficiencies that endanger health and safety. The appropriate use of enforcement power, including prosecution, is important both to secure compliance with the law and to ensure that those who have duties under it may be held to account for failures to safeguard health, safety and welfare.
C. Revocation—Modification—Expiration of Approvals/Permits.
1. Any conditions or requirements placed upon a development approval/permit by the designee or decision-making body as a result of the provisions of this division shall be followed. In the event that the permit holder, or assignee, fails to comply with any such conditions, the underlying development permit may be revoked or modified as set forth below.
2. If after an investigation, the city determines that one or more conditions of a permit are not being met, notice shall be mailed to the permit holder or agent by regular mail advising them of the deficiency and requiring that the deficiency be remedied within fourteen (14) days from the date the notice is mailed or such other period as the city designee may deem appropriate.
3. If the permit holder or agent fails to remedy the deficiency within this time period, the city designee shall mail notice to the permit holder or agent advising of the intent to revoke the development permit. Such notice shall state that to avoid such action the permit/application holder may appeal the revocation notice in writing. The permit holder shall be afforded a hearing before the city council to show cause why the permit should not be revoked. Such a hearing request must be filed within fourteen (14) days of the date of the notice of intent to revoke. The city council may (a) uphold the permit should it be determined that all conditions have been met or no longer need to be met; (b) modify or add conditions to the permit; or (c) uphold the revocation of the permit. If the permit holder fails to file a timely request for hearing, the designee shall send a notice advising that the development permit has been revoked and that any further action thereon will be in violation of city of Rainier development regulations.
4. The provisions of Section 18.16.040, Coordination of development permit procedures, shall apply to all development permits issued prior to and after the date of adoption of this code.
5. Community Development Department Authority. The designee has the authority to revoke or modify any permit or approval that was issued pursuant to city review. Prior to such revocation or modification, the designee shall follow procedures concerning notice and appeals as required for the initial consideration thereof; provided, that when any permit or approval is not exercised within the time specified in such permit or approval or, if no date is specified, within one year from the approval date of said permit or approval, the permit or approval shall automatically become null and void and no public hearing shall be required on the matter.
6. Initiation of an Action. An action to revoke or modify any permit or application may be initiated by:
a. The designee; or
b. By petition of any aggrieved party directly affected by the project or use together with the adopted appeals filing fee and filed with the city.
7. Grounds for Revocation or Modification. Such revocation or modification shall be made on any one or more of the following grounds:
a. That the approval or permit was obtained by fraud;
b. That the use for which such approval or permit was granted is not being exercised;
c. That the use for which such approval or permit was granted has ceased to exist or has been suspended for one year or more;
d. That the approval or permit granted is being, or recently has been, exercised contrary to the terms or conditions of such approval or permit, or in violation of any statute, resolution, code, law, or regulation;
e. The applicant did not provide complete or correct submittal information and discovery of the inaccuracies is later brought to the attention of the city that require additional permit review, modification, or possible permit revocation;
f. That the use for which the approval or permit was granted was so exercised as to be detrimental to the public health or safety, or so as to constitute a nuisance.
8. Expiration. When any permit or approval is not exercised by the expiration date indicated on the approval or permit or, if no expiration date is specified, one year from the approval date, the permit or approval shall expire. No extension of the expiration date for a permit or approval shall be granted unless such extension is approved pursuant to specific provisions for the relevant permit or approval.
D. Notice and Orders to Correct—Stop Work Orders or Any Other Written Order.
1. Authority. The building official/inspector, fire marshal, community development director/senior planner, code enforcement officer, city police, or their respective designees are hereby authorized to issue a notice and order to correct, stop work order, or any other written order when any person, firm, corporation or agent thereof has erected or maintains any building or structure, or conducts any land use or activity contrary to any provision of the city of Rainier development regulations.
2. Order. Notice and orders to correct, stop work orders, or any other written orders shall be obeyed upon issuance of the order. The erection or maintenance of any building or structure, or the conduct of any land use or activity contrary to any provision of the city of Rainier development regulations is a nuisance and notices, fees, appeals and procedures of Chapter 8.12 apply.
E. Cease and Desist Orders.
1. Authority. The building official/inspector, fire marshal, community development director, building inspector, code enforcement officer, sheriff, or their respective designees are hereby authorized to issue a cease and desist order when any person, firm, corporation, or agent thereof is making or partaking in any use of land, development, or any activity not permitted by the city of Rainier development regulations.
2. Orders. Cease and desist orders shall be obeyed immediately and all activity shall cease upon issuance of the order. The order shall specify each violation by reference to the specific title, chapter, and section or by reference to the approved permit.
3. Decisions and Appeals. Cease and desist orders are processed as Process I administrative approvals. The order shall state that the order may be appealed as specified in Section 18.16.080(D). If a decision is appealed on said matter, the city council shall issue a decision upholding, revoking, or modifying the prior order. The decision of the city council is final and conclusive unless said matter is determined otherwise by the appropriate court.
F. Violations. It is a violation of this division to:
1. Initiate or maintain the use of any structure, land, sign, vegetation or property within the city without first obtaining the permits or authorizations required for the use by this division.
2. Use, construct, locate, or demolish any structure, land, sign, vegetation or property within the city in any manner that is not permitted by the terms of any permit or authorization issued pursuant to this division; provided, that the terms or conditions are explicitly stated on the permit or the approved plans.
3. Remove or deface any sign, notice, complaint or order required by or posted in accordance with this division or Section 18.48.130, Signs.
4. Misrepresent any material fact in any application, plans or other information submitted to obtain any land use authorization.
5. Fail to comply with the requirements of this division.
6. In addition to any other sanction, penalty, or any remedial, judicial or administrative procedure available under the city code or state law, violation of any provision of this chapter or failure to comply with a decision of the responsible official or city council issued pursuant to this chapter and Chapter 7.80 RCW constitutes a civil infraction (a violation of a city ordinance). Civil infractions are not crimes, and the only penalty for a civil infraction is a monetary fine. The fines are as defined below:
a. Each day or portion thereof during which a violation occurs or exists shall be deemed a separate civil infraction. A person found to have committed a civil infraction shall be assessed a monetary penalty of two hundred fifty dollars ($250.00).
b. The municipal court may consider dismissing with costs only upon a showing that the violation was corrected within thirty (30) days from issuance of the notice and orders to correct, stop work order or any other written order to correct the infraction.
c. Whenever a court under this chapter imposes the monetary penalty allowed under the provisions of this division, it is immediately payable. If the person is unable to pay at that time, the court may grant an extension. If the penalty is not paid on or before the time established for payment, the court may proceed to collect the penalty in the same manner as other civil judgments and may notify the prosecuting attorney of the failure to pay.
d. Payment of a monetary penalty or performance of the required community service shall not relieve a person of the duty to correct the violation.
e. The court may also order a person found to have committed a civil infraction to make restitution.
G. Additional Enforcement Powers. The city may remove, correct, or replace any improperly constructed facility, structure, or portion thereof and the property owner shall pay all expenses incurred by the city. If the city is required to bring an action to recover such costs, the city will recover reasonable attorneys’ fees and interest of any unpaid costs at twelve percent (12%) per annum to run from the date the work was completed by the city. The city is authorized to make inspections as required to enforce these regulations. A city representative must present proper identification when entering onto private property.
H. Approval/Permit Durations.
1. Use Permits. An approved use permit shall be allowed to develop for a period of one year from the effective date of the permit approval unless a different time limitation was specifically authorized in the final approval. The development of an approved use permit shall be governed by the terms of approval of the permit unless the legislative body finds that a change in conditions creates a serious threat to the public health, safety or welfare.
2. Preliminary Plat. See Section 18.148.110.
3. Use Permits Associated with a Preliminary Plat. Use permit applications, such as planned development district applications that are approved as a companion to a preliminary plat application, shall remain valid for the duration of the preliminary and final plat as provided in subsections (B) and (D) of this section.
4. Final Plat. See Chapter 18.148, Article V.
5. Short Plat. See Chapter 18.156.
6. Binding Site Plan. See Chapter 18.168.
7. All approvals described in this section shall be vested for the specific use, density, and physical development identified in the permit approval.
I. Application Modification. Proposed modifications to an application that has been deemed to be complete by the city shall be treated as follows:
1. Modifications proposed by the department to an application shall not be considered a new application.
2. Any modification to an application may require revised public notice and/or additional review fees.
3. Modifications proposed by the applicant to a pending application deemed to result in a substantial increase in a project’s impacts shall require a new application. The new application shall conform to the development regulations in effect at the time the new application is submitted. The city shall apply the following criteria to determine if a substantial modification is proposed:
a. The perimeter boundaries of the original site are extended by more than five percent of the original lot area;
b. The modification adds more than twenty-five percent (25%) gross square footage to proposed structures on the site;
c. The modification increases the overall impervious surface on the site by more than twenty-five percent (25%);
d. The modification increases the overall residential density of a site by more than twenty percent (20%);
e. The modification reduces designated open space by more than ten percent (10%);
f. The modification increases or substantially relocates points of access unless supported by a revised traffic analysis; or
g. The modification consists of changing the original application’s primary use category to a new primary use category of greater intensity, as determined by the new use’s impacts, including but not limited to traffic, impervious surface, noise, glare, dust, and hours of operation.
J. Expiration. Any application type pending before the adoption of the ordinance codified in this division that does not contain all submittal items and required studies that are necessary for a public hearing or has not been reviewed by the city council in a public hearing shall become null and void one year after notice is mailed to the applicant/property owner. A one-time, one-year time extension may be granted by the city after a public hearing if the extension request is submitted within one year of the effective date of the ordinance codified in this chapter and the applicant has demonstrated due diligence and reasonable reliance towards project completion. In considering due diligence and reasonable reliance, the city shall consider the following:
1. Date of initial application;
2. Time period the applicant had to submit required studies;
3. Availability of necessary information;
4. Potential to provide necessary information within one year;
5. Applicant’s rationale or purpose for delay; and
6. Applicant’s ability to show reliance together with an expectation that the application would not expire. (Ord. 635 § 1, 2015: Ord. 548 § 2 (Exh. A) (part), 2007)
18.12.140 Waiving vested rights.
A property owner (or agent) may voluntarily waive vested rights at any time during the processing of an application by delivering a written and signed waiver to the city stating that the property owner agrees to comply with all development regulations in effect on the date of delivery of the waiver. Any change to the application is subject to the modification criteria and may require revised public notice and/or additional review fees. (Ord. 548 § 2 (Exh. A) (part), 2007)