Chapter 20.84
VARIANCES, CONDITIONAL USES, ADMINISTRATIVE APPROVAL USES AND APPEALS

Sections:

20.84.100    Variances.

20.84.150    Reserved.

20.84.200    Conditional uses.

20.84.210    Application.

20.84.220    Criteria.

20.84.225    Revisions to conditional use permits.

20.84.230    Open record hearing notice.

20.84.235    Administrative approval uses.

20.84.236    Revisions to administrative approval use permits.

20.84.240    Appeals.

20.84.250    Fees.

20.84.260    Date of expiration.

20.84.100 Variances.

.110 The hearing examiner shall have authority to grant a variance from the provisions of this ordinance when, in the opinion of the hearing examiner, the conditions set forth in WCC 20.84.120 have been found to exist. In such cases, a variance may be granted which is in harmony with the general purpose and intent of this ordinance so that the spirit of this ordinance shall be observed, public safety and welfare secured, and substantial justice done; provided, that no variance shall be granted which authorizes a use which is not permitted by the underlying zoning.

.120 Before any variance may be granted, it shall be shown that the following circumstances are found to apply:

(1) That any variance granted shall not constitute a grant of special privilege, be based upon reasons of hardship caused by previous actions of the property owner, nor be granted for pecuniary reasons alone;

(2) Because of special circumstances applicable to the subject property, including size, shape, topography, location or surrounding, the strict application of the zoning ordinance is found to cause a hardship and deprive the subject property of a use or improvement otherwise allowed in the identical zone classification. Aesthetic considerations or design preferences without reference to restrictions based upon the physical characteristics of the property do not constitute sufficient hardship under this section;

(3) The granting of the variance will not be materially detrimental to the public welfare, or injurious to the property or improvements in the vicinity and zone in which the subject is situated. (Ord. 2017-030 § 1 (Exh. Q), 2017; Ord. 87-12, 1987; Ord. 87-11, 1987).

20.84.150 Reserved.

Repealed by Ord. 2016-011. (Ord. 2010-030 § 1 (Exh. A), 2010).

20.84.200 Conditional uses.

20.84.210 Application.

 Upon application, the hearing examiner may grant conditional use permits for such uses as set forth in this ordinance. Conditional use permits shall be nontransferable unless said transfer is further approved by the hearing examiner.

20.84.220 Criteria.

Before approving an application, the hearing examiner or zoning administrator shall ensure that any specific standards of the use district defining the use are fulfilled, and shall find adequate evidence showing that the proposed use at the proposed location:

(1) Will be harmonious and in accordance with the general and specific objectives of Whatcom County’s Comprehensive Plan and zoning regulations.

(2) Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and that such use will not change the essential character of the same area.

(3) If located in a rural area (as designated in the Comprehensive Plan), will be consistent with rural land use policies as designated in the rural lands element of the Comprehensive Plan.

(4) Will not be hazardous or disturbing to existing or future neighboring uses.

(5) Will be serviced adequately by necessary public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewers, and schools; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services.

(6) Will not create excessive additional requirements at public cost for public facilities and services, and will not be detrimental to the economic welfare of the community.

(7) Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare by reasons of excessive production of traffic, noise, smoke, fumes, glare or odors.

(8) Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public streets.

(9) Will not result in the destruction, loss or damage of any natural, scenic or historic feature of major importance. (Ord. 2017-030 § 1 (Exh. K), 2017; Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 2011-013 § 2 Exh. B, 2011; Ord. 2004-014 § 2, 2004).

20.84.225 Revisions to conditional use permits.

The hearing examiner may approve revisions to conditional use permits; provided, that the proposed changes are within the scope and intent of the original permit. “Within the scope and intent of the original permit” shall mean the following:

(1) Lot coverage and height may be increased a maximum of 10 percent from the provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit; and provided further, that any revisions authorized under this paragraph shall not exceed height, lot coverage, setback or any other requirements of the regulations for the area in which the project is located; and provided further that any revisions authorized under this paragraph shall be reviewed for consistency with the relevant chapters and policies in the Comprehensive Plan.

(2) Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is consistent with the regulations for the area in which the project is located;

(3) The use authorized pursuant to the original permit is not changed;

(4) No additional over-water construction will be involved for shoreline conditional use permits;

(5) No substantial increase in adverse environmental impact will be caused by the project revision. (Ord. 2016-011 § 1 (Exh. A), 2016; Ord. 2011-013 § 2 Exh. B, 2011; Ord. 87-12, 1987; Ord. 87-11, 1987).

20.84.230 Open record hearing notice.

Notice of application and notice of open record hearing shall take place consistent with WCC 2.33.060 and 2.33.070. If a proposed project is within a city’s urban growth area, notice shall also be sent to the applicable city staff and planning commission at least 15 days prior to the hearing. (Ord. 2002-007 § 1, 2002; Ord. 96-031 § 2, 1996).

20.84.235 Administrative approval uses.

(1) The applicant shall submit an administrative approval use application form to the planning and development services department together with all of the following:

(a) Documentation of compliance with approval requirements;

(b) The filing fee specified in the Unified Fee Schedule;

(c)(i) For sites within urban growth areas: Stamped envelopes with typed addresses for each property owner within 300 feet of the external boundaries of the subject property as shown by the records of the county assessor (1,000 feet for adult businesses);

(ii) For sites outside urban growth areas: Stamped envelopes with typed addresses for each property owner within 1,000 feet of the external boundaries of the subject property as shown by the records of the county assessor.

(d) Three copies of a site plan at a scale of one inch equals 20 feet for sites that are less than five acres, and one inch equals 40 feet for sites five acres or more (if requested by the applicant, a different scale may be approved by planning and development services). The site plan shall show locations of property boundaries, locations and sizes of structures, vehicular access and parking areas, locations and types of water and sewer services, and locations and types of structures on adjacent properties.

(2) Upon receipt of application materials per subsection (1) of this section, the planning and development services department shall send a notice of the proposal to all owners of property within 300 feet of the external boundaries of the subject property for sites within urban growth areas and 1,000 feet for properties outside urban growth areas, and to the applicable city staff and planning commission if the property is within a city’s urban growth area, at least 15 days prior to the decision date. The applicant shall also post public notices of the proposal on all road frontages of the subject property so as to be visible to adjacent property owners and to passing motorists. Said notices shall be provided to the applicant by the planning and development services department and shall remain in place for at least 15 days prior to the decision. A signed affidavit of posting shall be returned at least one week prior to the decision. Property owners who have been notified of the proposal shall have a period of 15 days from the date printed on the mailed notice or 15 days from the posting of notice on the property, whichever is later, within which to submit to the planning and development services department a written response in support of or in opposition to all or parts of the proposal.

(3) Planning and development services shall approve or deny all administrative approval use applications. Decisions for all administrative approval use permits except adult businesses shall be based upon compliance with:

(a) The criteria established for the proposed use in the appropriate zone district;

(b) The Comprehensive Plan policies governing the associated land use designation;

(c) In rural areas, consideration will be given to the cumulative impacts of permitted uses in relation to the governing Comprehensive Plan policies and zoning district; and

(d) The requirement of this section and of WCC 20.84.220.

Decisions for administrative approval use permits for adult businesses shall be based solely upon the criteria in subsection (7) of this section.

(4) Decisions on administrative approval use permits for adult businesses shall be issued within 20 days of receiving a complete application. An application for an adult business is complete if it contains all of the information specified in subsection (1) of this section.

(5) If the permit is denied, the applicant shall be notified in writing. The grounds for denial and the applicant’s right to appeal shall be set forth in this notification.

(6) Any party of record may appeal the decision. For purposes of administering this section, parties of record shall be defined as the applicant, the owner of the property, and any person who has submitted a written response to the proposal. Each application for appeal of an administrative approval shall be accompanied by a fee as specified in the Unified Fee Schedule.

(7) Criteria for Adult Businesses. Prior to granting administrative approval for an adult business, planning and development services shall find that the proposed use at the proposed location satisfies or will satisfy all the following criteria:

(a) The adult business will be in accordance with Policies 2AAA-1 through 2AAA-4 of the Whatcom County Comprehensive Plan.

(b) The adult business will be consistent with WCC 20.66.131.

(c) The adult business shall be closed from 2:00 a.m. to 10:00 a.m. if it contains:

(i) An “adult eating or drinking establishment” as defined by WCC 20.97.008(2); or

(ii) An “adult theater” as defined by WCC 20.97.008(3); or

(iii) An “other adult commercial establishment” as defined by WCC 20.97.008(4); or

(iv) One or more viewing booths.

(d) If the adult business includes one or more viewing booths, the interior of the adult business will incorporate all of the following measures:

(i) Each viewing booth shall have at least a three-foot wide opening where a customer enters and exits the booth that is without doors, physical barriers, or visual barriers; and

(ii) Each viewing booth shall have at least one 100-watt light bulb that is properly working and turned on when business is open. The light bulb shall not be covered or otherwise shielded except with a commercially available lighting fixture. A minimum of one 12-inch by 12-inch durable metal sign shall be located at the entrance to each viewing booth area stating that lights shall remain on; and

(iii) Aisles or hallways adjacent to viewing booths shall be a minimum of five feet wide; and

(iv) There shall be no holes or openings in common walls between viewing booths.

For adult businesses containing one or more viewing booths, a condition of administrative approval shall require an unannounced inspection every six months during business hours by Whatcom County to ensure that measures in subsections (7)(d)(i) through (iv) of this section are being implemented on an ongoing basis. (Ord. 2011-013 § 2 Exh. B, 2011; Ord. 2003-039 Exh. A, 2003; Ord. 2002-007 § 1, 2002; Ord. 2001-038 § 2, 2001; Ord. 97-069, 1997; Ord. 95-031, 1995; Ord. 91-009, 1991).

20.84.236 Revisions to administrative approval use permits.

Planning and development services may approve revisions to administrative approval use permits; provided, that the proposed changes are within the scope and intent of the original permit. “Within the scope and intent of the original permit” shall mean the following:

(1) Lot coverage and height may be increased a maximum of 10 percent from the provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit; and provided further, that any revisions authorized under this subsection shall not exceed height, lot coverage, setback or any other requirements of the regulations for the area in which the project is located; and provided further, that any revisions authorized under this subsection shall be reviewed for consistency with the relevant chapters and policies in the Comprehensive Plan;

(2) Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is consistent with the regulations for the area in which the project is located;

(3) The use authorized pursuant to the original permit is not changed;

(4) No additional over-water construction will be involved for shoreline conditional use permits;

(5) No substantial increase in adverse environmental impact will be caused by the project revision. (Ord. 2016-011 § 1 (Exh. A), 2016).

20.84.240 Appeals.

The hearing examiner shall have the authority to hear and decide, in conformity with this chapter, appeals from any order, requirement, permit decision or determination made by an administrative official in the administration or enforcement of this chapter where more than one interpretation is possible; provided, that such appeal shall be filed in writing within 14 days of the action being appealed. If an appellant prevails in an appeal of an administrative approval decision, the appellant’s appeal fees shall be refunded. The appeal fee on a code violation will be refunded if the appellant can prove by clear and convincing evidence that a violation did not occur. Appeals of administrative approval use permit decisions for adult businesses shall be made directly to the county council pursuant to WCC 20.92.825, and shall not be subject to the provisions of this section. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 2001-038 § 2, 2001; Ord. 99-056, 1999; Ord. 96-031 § 2, 1996).

20.84.250 Fees.

Fees for variances, conditional uses, administrative approval uses and appeals shall be as set forth in the Whatcom County Unified Fee Schedule. (Ord. 96-056 Att. A § U2, 1996; Ord. 93-80, 1993; Ord. 87-41, 1987; Ord. 85-33, 1985).

20.84.260 Date of expiration.

Applications for conditional use permits, variances, expansions of nonconforming uses, administrative approvals, and any other permits provided for in this chapter shall expire one year after filing of the application if the applicant does not pursue completion of the appropriate process within that time by failing to take any action on the application.

The hearing examiner shall have the authority to fix a date of expiration of any or all approval, or conditions attached thereto, of conditional use permits, variances or expansions of nonconforming uses. (Ord. 2017-030 § 1 (Exh. L), 2017; Ord. 2006-061 § 1 (Att. A)(3), 2006).