Chapter 16.28
SHORELINE MANAGEMENT PLAN
Sections:
16.28.010 Permit necessary.
16.28.020 Shoreline map.
16.28.030 Definitions.
16.28.040 City permit authority.
16.28.050 Application.
16.28.060 Time requirements.
16.28.070 Permit application fees.
16.28.080 Revisions to substantial development, conditional use and variance permits.
16.28.090 Posting of notice.
16.28.100 Permit authority consideration.
16.28.110 Granting of permit.
16.28.120 Notification of decision.
16.28.130 Regulatory order.
16.28.140 Hearings on regulatory orders.
16.28.150 Appeals.
16.28.160 City attorney.
16.28.170 Citizens’ committee formed.
16.28.010 Permit necessary.
No person shall begin substantial development of all or any part of the shorelines of the state located within the city, until thirty days from the date of filing, as defined in RCW 90.58.140(6) and WAC 173-14-090, of the ruling by the city on the application for a substantial development, conditional use, or variance permit, or until all review procedures initiated within thirty days from the date of such filing have been terminated; except as provided in RCW 90.58.140(5)(a), (b) and (c). Nothing in the permit shall be construed as excusing the application from compliance with any other local, state, or federal statutes, ordinances or regulations applicable to the proposed substantial development. (Ord. 321 § 1, 1978: Ord. 204 § 1, 1971)
16.28.020 Shoreline map.
Shorelines of the state located within the city may be designated on an official shoreline map, to be kept in the office of the city clerk. (Ord. 204 § 2, 1971)
16.28.030 Definitions.
As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply:
A. “Average grade level” means the average of the natural or existing topography of the portions of the lot, parcel or tract of real property which will be directly under the proposed building or structure; provided, that in the case of structures to be built over water, average grade level shall be the elevation of ordinary high water.
Calculation of the average grade level is made by averaging the elevation at the center of all exterior walls of the proposed building or structure;
B. “Development” means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel or minerals; 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;
C. “Extreme low tide” means the lowest line on the land reached by a receding tide;
D. “Height” is measured from average grade level to the highest point of a structure; provided, that appurtenances such as television antennas and chimneys are not used in calculating height;
E. “Master program” means the comprehensive shoreline plan for the city and the use regulations together with maps, diagrams, charts or other descriptive material and text, developed in accordance with the policies enunciated in Section 2 of the Shoreline Management Act of 1971;
F. “Natural or existing topography” means the topography of the lot, parcel, or tract of real property immediately prior to any site preparation, grading, excavating, or filling;
G. “Ordinary high water mark” is the line of mean higher high tide;
H. “Shorelines” means all of the water areas of the state, including reservoirs, and their associated wetlands, together with the lands underlying them; except:
1. Shorelines of statewide significance,
2. Shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with the upstream segments, and
3. Shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;
I. “Shorelines of statewide significance” means the following shorelines of the state:
1. Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt water north to the Canadian line and laying seaward from the line of extreme low tide;
J. “Substantial development” means any development of which the total cost or fair market value exceeds one thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following are not considered substantial developments for the purpose of this chapter:
1. Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements,
2. Construction of the normal protective bulkhead common to single-family residences,
3. Emergency construction necessary to protect property from damage by the elements,
4. Construction of a barn or similar agriculture structure on wetlands,
5. Construction or modification of navigational aids such as channel markers and anchor buoys,
6. Construction on wetlands by an owner, lessee, or contract purchaser of a single-family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter,
7. Construction of a dock, designated for pleasure craft only, for the private noncommercial use of the owners, lessee, or contract purchaser of a single-family residence, for which the cost or fair market value, whichever is higher, does not exceed two thousand five hundred dollars,
8. The marking of property lines or corners on state-owned lands, when the marking does not significantly interfere with normal public use of the surface of the water,
9. Any project with a certification from the governor pursuant to Chapter 80.50 RCW;
K. “Wetlands” or “wetland areas” means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; and all marshes, bogs, swamps, floodways, river deltas, and floodplains associated with the tidal waters which are subject to the provisions of this act. (Ord. 321 §§ 2, 3, 1978: Ord. 204 § 3, 1971)
16.28.040 City permit authority.
The city permit authority is vested with the duty of administering the rules and regulations relating to the shoreline development permits and may prepare and require the use of such forms as are essential to its administration. (Ord. 1088 § 8 (part), 2003: Ord. 757 § 4 (part), 1993; Ord. 204 § 4, 1971)
16.28.050 Application.
Applications to begin substantial development of all or any part of the existing shorelines of the state located within the city, or for a conditional use permit or variance permit, shall be submitted and processed in accordance with Chapter 17.13, Project Permit Review Procedures. (Ord. 1088 § 8 (part), 2003: Ord. 757 § 4 (part), 1993; Ord. 321 § 4, 1978: Ord. 204 § 5, 1971)
16.28.060 Time requirements.
The following time requirements apply to all substantial developments, conditional use and variance permits:
A. Construction or substantial progress toward construction of a project for which a permit has been granted pursuant to Chapter 286, Laws of 1971 Extraordinary Session, the Shoreline Management Act of 1971, and the provisions of this chapter, must be undertaken within two years after approval of the permit. Substantial progress toward construction includes, but is not limited to, the letting of bids, making of contracts, purchase of materials involved in development, but does not include development or uses which are inconsistent with the policies and procedures of the Shoreline Management Act of 1971, the provisions of Chapter 173-14 WAC, and the then current Shoreline Management Master Program adopted and approved for the city. In determining the running of the two-year period hereof, there shall not be included the time during which a development was not actually pursued by construction when the pendency of litigation reasonably related thereto made it reasonable not to so pursue; provided, that the city may, at its discretion extend the two-year time period for a reasonable time based on factors, including the inability to expeditiously obtain other governmental permits which are required prior to the commencement of the construction.
B. If a project for which a permit has been granted pursuant to the Act has not been completed within five years after the approval of the permit by the city, the city planning director or his/her designee shall, at the expiration of the five-year period, review the permit, and upon a showing of good cause, do either of the following:
1. Extend the permit for one year; or
2. Terminate the permit; provided, that nothing in this section precludes the city from issuing permits with a fixed termination date of less than five years. (Ord. 1088 § 8 (part), 2003: Ord. 321 § 5, 1971)
16.28.070 Permit application fees.
A fee as established by city council pursuant to such periodic resolution as council from time to time updates and approves shall be paid at the time an application is submitted. (Ord. 408 § 1 (part), 1982: Ord. 204 § 6, 1971)
16.28.080 Revisions to substantial development, conditional use and variance permits.
A. When an applicant seeks to revise a substantial development, conditional use or variance permit, the city planning director or his/her designee shall request from the applicant detailed plans and texts describing the proposed changes in the permit.
B. If the city planning director or his/her designee determines that the proposed changes are within the scope and intent of the original permit, the city planning director or his/her designee may approve a revision.
C. “Within the scope and intent of the original permit” means the following:
1. No additional overwater construction will be involved;
2. Lot coverage and height may be increased a minimum of ten 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 section shall not exceed height, lot coverage, setback or any other requirements of the Shoreline Master Program for the city then in effect;
3. Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with the conditions (if any), attached to the original permit and is consistent with the city Shoreline Master Program then in effect;
4. Use authorized pursuant to the original permit is not changed;
5. No additional significant adverse environmental impact will be caused by the project revision.
D. If the revision or the sum of the revision in any previously approved revision pursuant to this section will violate the terms of one or more of the provisions as set forth in subsection C of this section, the city requires that the applicant apply for a new substantial development, conditional use, or variance permit, as appropriate, in the manner provided for in this chapter.
E. The revised permit becomes effective immediately. Within eight days of the date of final action the revised site plan, text, and the approved revision shall be submitted to the appropriate regional office of the Department of Ecology and the Attorney General for the completion of their files. In addition, the city shall submit a notice of revisional approval to persons who have notified the city of their desire to receive a copy of the action on a permit.
F. Appeal shall be in accordance with RCW 90.58.180 and shall be filed within fifteen days from the date of receipt of the local government’s action by the Department of Ecology regional office. Appeals are based only upon contentions of noncompliance with one or more of the provisions of subsection C of this section. Construction undertaken pursuant to that portion of the revised permit not authorized under the original permit are at the applicant’s own risk until the expiration of the appeal deadline. If an appeal is successful in proving that a revision was not within the scope and intent of the original permit, the decision shall have no bearing on the original permit. (Ord. 1088 § 8 (part), 2003: Ord. 321 § 6, 1971)
16.28.090 Posting of notice.
Upon receipt of a proper application for a shoreline management substantial development, conditional use, or variance permit, a notice of application shall be processed in accordance with Section 17.13.050, Notice of application. (Ord. 1088 § 8 (part), 2003; Ord. 757 § 4 (part), 1993; Ord. 321 § 7, 1978: Ord. 204 § 7, 1971)
16.28.100 Permit authority consideration.
A. The permit authority shall consider the proposed substantial development based on information from:
1. The application;
2. Written comments from interested parties;
3. Views expressed during public hearings of the permit authority.
B. Independent study of the permit authority (and the city planning staff) may be considered. The permit authority may request that an applicant furnish information concerning a proposed substantial development in addition to information required in an application.
C. The permit authority shall grant or deny permits based on the policies enumerated in Section 16.28.110 within a reasonable time after the end of the thirty-day notice period. (Ord. 1088 § 8 (part), 2003: Ord. 757 § 4 (part), 1993; Ord. 204 § 8, 1971)
16.28.110 Granting of permit.
A substantial development permit shall be granted only when the development proposal is consistent with:
A. The policies and procedures of the Shoreline Management Act of 1971;
B. The provisions of Chapter 173-14 WAC;
C. The Shoreline Master Program adopted and approved by the city. (Ord. 321 § 8, 1978: Ord. 204 § 9, 1971)
16.28.120 Notification of decision.
A notice of decision shall be processed in accordance with Section 17.13.080, Notice of decision. (Ord. 1088 § 8 (part), 2003: Ord. 757 § 4 (part), 1993; Ord. 204 § 10, 1971)
16.28.130 Regulatory order.
A. The city has the authority to serve upon a person undertaking, or about to undertake development as defined in RCW 90.58.030(3)(d) a regulatory order if:
1. The development constitutes an integral part of a project being undertaken, or about to be undertaken on the shoreline of the city in the absence of a substantial development, conditional use, or variance permit; or
2. The development being undertaken, although an integral part of a project approved by an existing, valid substantial development, conditional use, or variance permit is outside the scope and intent of the permit; or
3. The development being undertaken on the shoreline of the city is in violation of Chapter 90.58 RCW and the adopted or approved Mukilteo Shoreline Master Program.
B. The regulatory order shall set forth or contain:
1. The specific nature, extent and time of violation, and the time of potential damage;
2. An order that the violation or the potential violation cease and desist or in appropriate cases, the specific corrective action to be taken within a specific and reasonable time; and
3. The right of the person to whom the order is directed to a hearing before the shoreline hearings board.
C. A regulatory order issued pursuant to this section becomes effective immediately upon receipt by the person to whom the order is directed and shall become final unless review is requested as set forth in Section 16.28.140. (Ord. 321 § 9, 1978)
16.28.140 Hearings on regulatory orders.
A. The person to whom a regulatory order is directed as set forth in Section 16.28.130 may request review to the shoreline hearings board within thirty days after being served with the regulatory order. The requirements of RCW 90.58.180(1) and Chapter 461-08 WAC shall apply to all requests for review; provided, however, that there is no requirement for the requests to be filed with and certified by the Department of Ecology and the Attorney General.
B. All hearings held pursuant to this provision and judicial review thereof shall be in accordance with the rules establishing the shoreline hearings board contained in Chapter 90.58 RCW and Chapter 461-08 WAC. (Ord. 321 § 10, 1978)
16.28.150 Appeals.
Appeals from the decision of the permit authority may be taken to the shoreline hearings board as provided in the Shoreline Management Act of 1971. (Ord. 1088 § 8 (part), 2003: Ord. 204 § 11, 1971)
16.28.160 City attorney.
The city attorney shall enforce the provisions of this chapter consistent with the Shoreline Management Act of 1971. (Ord. 204 § 12, 1971)
16.28.170 Citizens’ committee formed.
The mayor is authorized to appoint a citizens’ committee of five members, to study and make recommendations to the permit authority and the city council regarding development of a master program, as defined in Section 16.28.030, pursuant to the provisions of the Shoreline Management Act of 1971. (Ord. 1088 § 8 (part), 2003: Ord. 757 § 4 (part), 1993; Ord. 204 § 13, 1971)