Chapter 23.50
APPLICABILITY AND NONCONFORMING USES

Sections:

23.50.010    Application to persons and development.

23.50.020    Relationship to other local regulations.

23.50.030    Relationship to other state and federal laws.

23.50.040    Application within federal reserves.

23.50.050    Program effects on property values.

23.50.060    Hazardous substance remedial actions.

23.50.070    Nonconforming development.

23.50.080    Property rights.

23.50.010 Application to persons and development.

A. This program shall apply to any person as defined in Chapter 23.110 WCC.

B. This program shall apply to any use or development as defined in Chapter 23.110 WCC. All development and use of shorelines of the state shall be carried out in a manner that is consistent with this program and the policy of the Act as required by RCW 90.58.140(1), whether or not a shoreline permit or statement of exemption is required for such development pursuant to Chapter 23.60 WCC.

C. No substantial development as defined in Chapter 23.110 WCC shall be undertaken within shorelines by any person on shorelines without first obtaining a substantial development permit from Whatcom County; provided, that such a permit shall not be required for the exempt activities listed in WCC 23.60.022. (Ord. 2009-13 § 1 (Exh. 1)).

23.50.020 Relationship to other local regulations.

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

B. In the case of development subject to regulations of this program but exempt from the shoreline substantial development permit requirement, any required statement of exemption shall be obtained prior to issuance of the building permit; provided, that for single-family residences, a building permit reviewed and signed off by the administrator may substitute for a written statement of exemption. A record of review documenting compliance with bulk and dimensional standards as well as policies and regulations of this program shall be included in the permit review. The building official shall attach and enforce conditions to the building permit as required by applicable regulations of this program pursuant to RCW 90.58.140(1).

C. In the case of zoning conditional use permits and/or variances required by WCC Title 20 for development that is also within shorelines, the county decision maker shall document compliance with bulk and dimensional standards as well as policies and regulations of this program in consideration of recommendations from the administrator. The decision maker shall attach conditions to such permits and variances as required to make such development consistent with this program.

D. In the case of land divisions, such as short subdivisions, long plats and planned unit developments that require county approval, the decision maker shall document compliance with bulk and dimensional standards as well as policies and regulations of this program and attach appropriate conditions and/or mitigating measures to such approvals to ensure the design, development activities and future use associated with such land division(s) are consistent with this program.

E. Other local ordinances that may be applicable to shoreline development or use include, but are not limited to:

1. Building, plumbing, mechanical, and fire codes.

2. Boating and swimming, WCC Title 11.

3. On-site sewage system regulations, Chapter 24.05 WCC.

4. Solid waste rules and regulations, Chapter 24.06 WCC.

5. Zoning, WCC Title 20.

6. Land division regulations, WCC Title 21.

7. Development standards. (Ord. 2009-13 § 1 (Exh. 1)).

23.50.030 Relationship to other state and federal laws.

A. Obtaining a shoreline permit or statement of exemption for a development or use does not excuse the applicant/proponent from complying with any other local, tribal, state, regional or federal statutes or regulations applicable to such development or use.

B. At the time of application or initial inquiry, the administrator shall inform the applicant/proponent of other such statutes and regulations relating to shoreline issues that may be applicable to the project to the extent that the administrator is aware of such statutes. However, the final responsibility for determining applicable statutes and regulations and complying with the same rests with the applicant/proponent or responsible person carrying out the use or development in question.

C. Washington State statutes together with implementing regulations adopted pursuant thereto that may be applicable to shoreline development or use include, but are not limited to:

1. Flood Control Zone Act, Chapter 86.16 RCW.

2. Forest Practices Act, Chapter 76.09 RCW.

3. Fish and Wildlife, RCW Title 77.

4. Water Pollution Control Act, Chapter 90.48 RCW.

5. Land Subdivision Act, Chapter 58.17 RCW.

6. Surface Mining Act, Chapter 78.44 RCW.

7. Washington Clean Air Act, Chapter 70.94 RCW.

8. State Environmental Policy Act (SEPA), Chapter 43.21C RCW.

9. Camping Resorts Act, Chapter 19.105 RCW.

10. Water Resources Act of 1971, Chapter 90.54 RCW.

11. Growth Management Act, Chapter 36.70A RCW.

12. State Hydraulic Code, Chapter 77.55 RCW.

D. Regional authority regulations authorized by state law that may be applicable to shoreline development or use include, but are not limited to:

1. Northwest Clean Air Agency regulations.

2. Puget Sound Water Quality Management Plan.

E. Federal statutes together with implementing regulations adopted pursuant thereto that may be applicable to shoreline development or use include, but are not limited to:

1. Rivers and Harbors Act of 1899.

2. Fish and Wildlife Coordination Act of 1958.

3. National Environmental Policy Act of 1969 (NEPA).

4. Coastal Zone Management Act of 1972, as amended.

5. Federal Water Pollution Control Act, as amended.

6. Flood Insurance Act of 1968, as amended.

7. Clean Air Act, as amended.

8. Endangered Species Act (ESA). (Ord. 2009-13 § 1 (Exh. 1)).

23.50.040 Application within federal reserves.

A. The shoreline permit procedures, policies and regulations established in this program shall apply to development or use of shorelines of the state within national forests, national parks and national recreation areas by persons other than federal agencies.

B. As recognized by RCW 90.58.350, the provisions of this program shall not apply to lands held in trust by the United States for Indian nations, tribes or individuals. (Ord. 2009-13 § 1 (Exh. 1)).

23.50.050 Program effects on property values.

A. As provided for in RCW 90.58.290, the restrictions imposed upon use of real property through implementation of policies and regulations of the Act and this program shall be duly considered by the county assessor and the county board of equalization in establishing the fair market value of such properties.

B. Designation of private property as a natural or conservancy shoreline area pursuant to Chapter 23.30 WCC shall qualify the property as meeting the definition of “open space land” under the Open Space Taxation Act of 1970, as amended (RCW 84.34.020(1)) and shall qualify such land for application for open space taxation in accordance with RCW 84.34.037 and Chapter 3.28 WCC. (Ord. 2009-13 § 1 (Exh. 1)).

23.50.060 Hazardous substance remedial actions.

The procedural requirements of Chapter 90.58 RCW shall not apply to a project for which a consent decree, order, or agreed order has been issued pursuant to Chapter 70.105D RCW or to the Department of Ecology when it conducts a remedial action under Chapter 70.105D RCW. The Department of Ecology shall, in consultation with the administrator, assure that such projects comply with the substantive requirements of Chapter 90.58 RCW, Chapter 173-26 WAC and this program. (Ord. 2009-13 § 1 (Exh. 1)).

23.50.070 Nonconforming development.

The following provisions shall apply to lawfully established uses, buildings and/or structures that do not meet the specific standards of this program.

A. The lawfully established use of any building, structure, land or premises existing on the effective date of initial adoption of the program (August 27, 1976), or any subsequent amendment thereto or authorized under a permit or approval issued, or otherwise vested, prior to the effective date of initial adoption of the program or any subsequent amendment thereafter shall be considered nonconforming and may be continued, subject to the provisions of this section; provided, that agricultural activities shall conform to WCC 16.16.290; provided further, that bulkheads shall conform to WCC 23.100.130.

B. An existing use designated as a conditional use that lawfully existed prior to the adoption of this program or the adoption of an applicable amendment hereto and which has not obtained a conditional use permit shall be considered a legal nonconforming use and may be continued subject to the provisions of this section without obtaining a conditional use permit.

C. A structure for which a variance has been issued but which does not comply with applicable requirements of this program as amended shall be considered a legal nonconforming structure and the requirements of this section shall apply.

D. Nonconforming structures may be maintained, repaired, renovated, or remodeled to the extent that nonconformance with the standards and regulations of this program is not increased; provided, that a nonconforming development that is moved any distance must be brought into conformance with this program and the Act; provided further, that as a conditional use a nonconforming dock may be modified, reoriented or altered within the same general location to be more consistent with the provisions of this SMP.

E. Nonconforming structures, other than single-family residences and their appurtenances, that are expanded or enlarged must obtain a variance or be brought into conformance with this program and the Act; provided, that nonconforming structures with conforming uses may be expanded or enlarged within the existing building footprint as a conditional use pursuant to WCC 23.100.050(B)(1)(e).

F. Nonconforming structures (including accessory structures) that are damaged or destroyed by fire, explosion, flood, or other casualty may be restored or replaced in kind; provided, that:

1. Structures containing conforming uses, such as a single-family residence or accessory structure, that are located within a hazardous area shall be redeveloped consistent with the requirements of Chapter 16.16 WCC, Article 3 (Geologically Hazardous Areas) and Article 4 (Frequently Flooded Areas); provided, that the permit process is commenced within 18 months of the date of such damage; and the reconstruction does not expand, enlarge, or otherwise increase the nonconformity, except as provided for in subsections H and I of this section.

2. Structures containing nonconforming uses can be replaced in kind if there is no feasible alternative that allows for compliance with the provisions of this program, and the permit process is commenced within 18 months of the date of such damage, and the reconstruction does not expand, enlarge, or otherwise increase the nonconformity, except as provided for in subsection E or H of this section.

G. If a nonagricultural nonconforming use is intentionally abandoned for a period of 12 months or more, then any future use of the nonconforming building, land or premises shall be consistent with the provisions of this program.

H. Replacement of any nonconforming structures or buildings or portions thereof within the aquatic shoreline area shall comply with program requirements for materials that come in contact with the water pursuant to WCC 23.90.040(B)(5); provided, that replacement of existing wood pilings with chemically treated wood is allowed for maintenance purposes where use of a different material such as steel or concrete would result in unreasonable or unsafe structural complications; further provided, that where such replacement exceeds 20 percent of the existing pilings over a 10-year period, such pilings shall conform to the standard provisions of this section.

I. Enlargement or expansion of single-family residences by the addition of space to the main structure or by the addition of normal appurtenances as defined in Chapter 23.110 WCC that extend waterward of the existing primary residential foundation walls further into a critical area (excluding the buffers of the critical areas), further into the minimum required side yard setback, or that increase the structure height above the limits established by this program shall require a variance; provided, that expansion of nonconforming single-family residences other than that specified in this subsection I may be expanded without a variance where the provisions of subsection J or K of this section apply.

J. The enlargement or expansion of single-family residences by the addition of space to the exterior of the main structure or normal appurtenances is permitted without a conditional use permit or variance once during the life of the structure (100 years). The structure shall be located landward of the ordinary high water mark, and any expansion of the footprint is landward of the existing building footprint (not the side yard), and any vertical expansion is within the existing building footprint; provided, that the following conditions are met:

1. Enlargements, expansions, or additions that increase the existing primary structure or normal appurtenances by up to 250 square feet of gross floor area as defined by Chapter 23.110 WCC shall be allowed provided the expansion or addition will occur on a previously impacted impervious surface and the expansion is not waterward of the common-line setback as illustrated in Appendix F.

2. Enlargements, expansions, or additions that increase the total footprint of the existing primary structure or normal appurtenances by 250 to 500 square feet of gross floor area as defined by Chapter 23.110 WCC shall be allowed; provided, that the addition will occur on a previously impacted impervious surface and the expansion is not waterward of the common-line setback as illustrated in Appendix F; further provided, that the shoreline is enhanced by the equivalent area of a building footprint that is expanded. If enhanced through planting, the administrator shall require a vegetation management plan consistent with WCC 23.90.060(B)(2).

K. The administrator shall require a conditional use permit if the enlargement or expansion of single-family residences by the addition of space to the exterior of the main structure or normal appurtenances is in excess of those allowances provided in subsection J of this section.

L. A structure that is being or has been used for a nonconforming use may be used for a different nonconforming use only upon the approval of a conditional use permit. In addition to the conditional use criteria of WCC 23.60.040, before approving a conditional use for a change in nonconforming use, the hearing examiner shall also find that:

1. No reasonable alternative conforming use is practical because of the configuration of the structure and/or the property;

2. The proposed use will be at least as consistent with the policies and provisions of the Act and this program and as compatible with the uses in the area as the preexisting use;

3. The use or activity is enlarged, intensified, increased or altered only to the minimum amount necessary to achieve the intended functional purpose;

4. The structure(s) associated with the nonconforming use shall not be expanded in a manner that increases the extent of the nonconformity including encroachment into areas, such as setbacks, and any critical areas and/or associated buffers established by Chapter 16.16 WCC, where new structures, development or use would not be allowed;

5. The vegetation conservation standards of WCC 23.90.060(B)(3) are met;

6. The change in use, remodel or expansion will not create adverse impacts to shoreline ecological functions and/or processes; and

7. Uses which are specifically prohibited or which would thwart the intent of the Act or this program shall not be authorized.

M. Nonconforming lots are those that have a building area of less than 2,500 square feet available for a single-family residence and normal appurtenances that is unrestricted by setbacks or buffers from shorelines.

N. Where permitted according to shoreline areas designations (WCC Table 23.100.010), new single-family development on any legal lot in shoreline jurisdiction that is nonconforming with respect to the required shoreline buffer standards may be allowed without a shoreline variance when all of the following criteria are met:

1. The depth of the lot (the distance from the ordinary high water mark to the inside edge of the frontage setback) is equal to or less than the standard buffer as indicated in Chapter 16.16 WCC; and

2. The building area lying landward of the shoreline buffer and interior to required side yard setbacks is 2,500 square feet or less; provided, that consideration shall be given to view impacts and all single-family residences approved under this section shall not extend waterward of the common-line setback as measured in accordance with Appendix F. The building area means the entire area that will be disturbed to construct the home, normal appurtenances (except drainfields), and landscaping; and

3. The lot is not subject to landslide hazard areas, alluvial fan hazard areas, or riverine and coastal erosion hazard areas or associated buffers as provided in WCC 16.16.310; and

4. The nonconforming lot was created prior to August 8, 2008; and

5. Appropriate measures are taken to mitigate all adverse impacts, including but not limited to locating the residence in the least environmentally damaging location relative to the shoreline and any critical areas; and provided, that all administrative reductions to side yard and/or frontage setbacks are pursued, when doing so will not create a hazardous condition or a condition that is inconsistent with this program and WCC Title 20; and

6. There is no opportunity to consolidate lots under common ownership that will alleviate the nonconformity; and

7. The area between the structure and the shoreline and/or critical area shall comply with the vegetation conservation standards of WCC 23.90.060(B)(3); and

8. Development may not take place waterward of the ordinary high water mark; and

9. Facilities such as a conventional drainfield system may be allowed within critical areas or their buffers, except wetlands and buffers, outside of the building area specified above, subject to specific criteria in Chapter 16.16 WCC.

O. Redevelopment of nonconforming rights-of-way and associated transportation structures, such as railroad trestles, may be permitted for purposes of facilitating the development of public trails and/or public shoreline access; provided, that such redevelopment shall be otherwise consistent with the provisions of this program, including but not limited to the provisions for public access and no net loss of shoreline ecological functions and processes, except as provided for in subsections E and H of this section. (Ord. 2014-051 § 1; Ord. 2009-13 § 1 (Exh. 1)).

23.50.080 Property rights.

A. Decisions on shoreline permits and/or approvals shall recognize all relevant constitutional and other legal limitations on the regulation of private property. Findings shall assure that conditions imposed relate to the governmental authority and responsibility to protect the public health, safety, and welfare, are consistent with the purposes of the Act, and are roughly proportional to the expected impact.

B. This program does not alter existing law on access to or trespass on private property and does not give the general public any right to enter private property without the owner’s permission.

C. Consistent with Whatcom County’s high standard of staff conduct, county staff observe all applicable federal and state laws regarding entry onto privately owned property. (Ord. 2009-13 § 1 (Exh. 1)).