Chapter 17.06
PROJECT REVIEW AND APPROVAL PROCEDURES

Sections:

17.06.010    Purpose.

17.06.020    Applicability.

17.06.030    Exemptions.

17.06.040    Land use final decisions and land use decision types.

17.06.050    Preapplication conference.

17.06.060    Application submittal information.

17.06.070    Receipt of application and determination of completeness.

17.06.080    Vesting of applications.

17.06.090    Land use decision time periods.

17.06.095    Publication of notices.

17.06.100    Notice of application requirements.

17.06.110    Notice of the open record hearing.

17.06.120    Notice of final decision.

17.06.125    Mineral resource land notification.

17.06.130    Final decision procedural requirements.

17.06.140    Integrated SEPA procedures.

17.06.150    Consolidated permit review.

17.06.160    Consistency review by agencies.

17.06.170    Variances.

17.06.180    Appeals.

17.06.190    Appeals to the Whatcom County superior court.

17.06.200    Fees.

17.06.010 Purpose.

The purpose of this chapter is to provide an efficient and expeditious process for the review of land use and development proposals. (Ord. 2554 § 3, 2003)

17.06.020 Applicability.

The land use review processes in this chapter shall apply to review procedures required under the Blaine land use and development code to make a decision on public and private activities affecting the use of property in the city. These actions may include but are not limited to administrative decisions, enforcement actions, decisions on land division, zoning variances, zoning amendments, site plan review and appeals of those actions. (Ord. 2554 § 3, 2003)

17.06.030 Exemptions.

The following permits or approvals are not subject to the project permit review procedures required under this chapter:

A. Legislative actions (Type III-LEG) subject to BMC Title 16;

B. Work covered under an approved street excavation or obstruction permit;

C. Washington State Department of Transportation projects in the public right-of-way;

D. City of Blaine public works projects in the public right-of-way. (Ord. 2811 § 2 (Exh. A), 2012; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2673 § 2, 2007; Ord. 2554 § 3, 2003)

17.06.040 Land use final decisions and land use decision types.

A. Land Use Decision Categories. Project applications and final decisions shall be categorized as Type I-ADM, Type II-HE, Type II-PC, Type II-CC or Type III-LEG, and are defined as follows:

1. Type I-ADM. Type I-ADM final decisions are administrative decisions, rulings, and code interpretations made by the director as authorized under the Blaine land use and development code;

2. Type II. Type II final decisions are quasi-judicial decisions and fall under one of three categories as listed and described below. Wherever the term “Type II” is used by itself it shall be construed to include any or all three categories of Type II final decisions.

a. Type II-HE. Type II-HE final decisions are quasi-judicial decisions made by the hearing examiner following an open record hearing and can include project permit approvals and appeals of administrative final decisions;

b. Type II-PC. Type II-PC final decisions are quasi-judicial decisions made by the planning commission following an open record hearing;

c. Type II-CC. Type II-CC final decisions are quasi-judicial decisions made by the city council. With few exceptions, Type II-CC final decisions are closed record decisions based on the record developed at an open record hearing held either by the planning commission or hearing examiner. Type II-CC final decisions include, but are not limited to, decisions regarding land use appeals and on certain types of land use approvals;

3. Type III-LEG. Type III-LEG final decisions are legislative decisions made by city council and are not subject to the review procedures outlined in this chapter. Type III-LEG final decisions for amendments to Blaine’s comprehensive plan are outlined in Chapter 16.04 BMC. Type III-LEG final decisions for amendments to the land use and development code are outlined in Chapter 17.04 BMC.

B. The four flow charts below provide summary information about the characteristics of Type I and Type II decisions, noting, among other things, who makes the final decision and whether an open record hearing is required.

C. Hierarchy of Land Use Decision Types. Land use decision types shall be ranked in order of authority from lowest level to highest as follows: Type I-ADM, Type II-HE, Type II-PC, Type II-CC and Type III-LEG.

D. In the event of uncertainty as to the applicable decision type for a specific permit or approval, the director shall make the final decision.

E. Consolidated Review – Applicable Decision Type. Land use proposals undergoing consolidated review pursuant to BMC 17.06.150 where more than one decision type applies shall be processed under the highest level land use decision type applicable to the proposal.

F. Determination of Land Use Decision Type. Land use decision types shall be assigned to land use permits and approvals within each chapter of this title. (Ord. 2554 § 3, 2003)

17.06.050 Preapplication conference.

A. A project proponent may request a preapplication conference with the city prior to submitting a project proposal for review. The purpose of a preapplication conference is to provide an opportunity for the applicant to discuss a project with the city prior to submitting an application. The objective is to better determine submittal requirements and to clarify applicable policy and regulatory requirements prior to formally submitting a project proposal to the city. The result should be a saving in both costs and time for the applicant.

B. A request for a preapplication conference shall be made using the request forms provided by the director. The request form contains a list of information to be submitted along with the completed request form. The proponent may include additional information beyond that requested. The requested information and any additional information submitted will be used by staff to help prepare for the conference.

C. Upon receipt of a completed request form, the director shall review the submittal information, determine which city agencies should be contacted to have representatives present at the conference and schedule the preapplication conference at a time convenient for all parties.

D. Preapplication review does not constitute acceptance of an application by the director nor does it vest an application. (Ord. 2554 § 3, 2003)

17.06.060 Application submittal information.

A. Applications for a project permit or other types of land use approvals shall be submitted using forms provided by the director.

B. As required by RCW 36.70B.080, submittal requirements for land use approvals are provided in the applicable section(s) of the city of Blaine land use and development code. The submittal requirements form the basis for determining if a particular application is complete. (Ord. 2554 § 3, 2003)

17.06.070 Receipt of application and determination of completeness.

A. Receipt of Applications. Pursuant to RCW 36.70B.070(2), applications are required to meet all submittal requirements and must be complete at the time of submittal. Applications shall be submitted to the director. The director shall verify the payment of any required application fees pursuant to the city of Blaine’s unified fee schedule and note the date of receipt of the application. Receipt of an application does not constitute approval of the proposal or land use action, nor does it signify that the director has determined the application is complete.

B. Determination of Completeness. Within 28 days following receipt of the application, the director shall review the application materials and determine whether the application is complete. An application shall be determined to be complete when the applicant has provided all submittal requirements to the satisfaction of the director.

C. Complete Applications. Pursuant to RCW 36.70B.070(1), for applications determined to be complete, the director shall provide the applicant with written notice that the application is complete. The notice of complete application shall be issued via the U.S. Postal Service or by hand delivery to the applicant. To the extent known by the director, the notice of complete application shall identify other agencies of local, state, regional or federal governments that may have jurisdiction over some aspect of the application.

D. Incomplete Applications. For applications determined to be incomplete, the following applies:

1. Pursuant to RCW 36.70B.070(1), the director shall provide the applicant with written notice either by U.S. Postal Service or by hand delivery that the application was determined to be incomplete. The notice shall be postmarked or hand delivered no later than 28 days from the date the application was received. The notice shall include a description of the information or items that are needed to complete the application;

2. The applicant shall have 90 days from the date on the written notice to submit the necessary information to the director.

a. If the applicant does not submit the necessary information to the director in writing within the 90-day period, the director shall mark the application as void and return the application to the applicant.

b. Prior to the expiration of the 90 days, the applicant may make a written request for an extension of time to submit the required materials. Upon finding that the applicant has made a substantial effort to provide the necessary application materials, the director may grant additional time, up to an additional 90 days, to submit the required information.

3. Pursuant to RCW 36.70B.070(4), upon receipt of additional information, the director shall have 14 days to make a new determination that the application is complete.

a. If the application is determined to be complete, written notice shall be provided to the applicant in the manner specified in subsection C of this section.

b. If the application is determined to be incomplete, the director shall mark the application as void and return the application with a notice that the application is not complete. The notice shall identify the reason(s) for the determination. In such a case, a new application with new fees will be required for the project and a new application date assigned.

E. No application for a project permit or other land use approval will be considered vested until a notice of complete application has been issued to the applicant by the director stating that the application is complete.

F. Additional Information. Pursuant to RCW 36.70B.070(2), a determination of completeness shall not prevent the director from requiring additional information or studies that may be necessary to demonstrate compliance with city regulations.

G. Pursuant to RCW 36.70B.070(4)(a), a project permit application shall be deemed complete under this section if the director does not provide a written determination to the applicant that the application is incomplete within 28 days from the date of submittal as required in this section. (Ord. 2673 § 2, 2007; Ord. 2554 § 3, 2003)

17.06.080 Vesting of applications.

A. Applications shall be subject to the rules and regulations contained in BMC Title 13 and this title in place on the date a complete application is submitted. Completeness of an application shall be determined by the director. The director’s decision shall be included in a written notice of complete application that is mailed, emailed or hand delivered. The director’s issuance of a written notice of complete application as provided in this chapter, issuance of a written notice that an application is incomplete, or the failure of the director to provide such a written notice of completeness in the time frame as provided in this chapter shall be a final determination of whether an application is vested pursuant to this chapter. Substantial compliance with the requirements of this chapter by the city shall be deemed sufficient to determine whether an application is complete or incomplete, including the delivery of notification of such decision to an applicant.

B. Supplemental information required after vesting of a complete application shall not affect the validity of the vesting for such application unless the information is requested because incorrect information is submitted by the applicant and if the incorrect information would materially affect the final decision on the application.

C. Modifications required by the director to a pending application, other than those set forth in subsection (B) of this section, shall not be deemed a new application and shall not affect vesting.

D. An applicant-requested modification occurring either before or after issuance of the permit shall eliminate vesting, when such modification would result in a substantial change in a project’s review requirements, as determined by the director. Under such a condition, the application will be deemed a new application. Examples of a substantial change include modifications resulting in a different type of decision, i.e., Type I to Type II or a change requiring a new SEPA threshold determination. Modifications that reduce the scope of a proposal or reduce environmental impacts would not be considered a substantial change.

E. Building permits that may subsequently be required to construct or complete a vested land use project shall be considered new applications under the building code and shall be subject to the edition of the building code in place at the time of application.

F. Nothing herein shall restrict the director’s authority to impose conditions on project permits pursuant to the State Environmental Policy Act (SEPA), Chapter 43.21C RCW and WAC 197-11-600.

G. Nothing herein shall be construed to restrict the director’s ability, to the extent otherwise permitted by law, to apply new regulations to a project permit or project permit application upon a finding that a change in conditions creates a serious threat to the public health and safety.

H. If any approved subdivision (short subdivision, preliminary plat, binding site plan) seeks an extension from the deadline for expiration, the city may impose additional or altered conditions, requirements and regulations on any plat, if the approving authority deems it necessary to protect the public health, safety or welfare.

I. Nothing herein shall be construed to imply, allow or require vesting to any fees or charges, including but not limited to application fees, administrative fees or charges, appeal fees and reimbursement charges. Fees due shall be those fees in effect on the date the fee is paid as adopted by the city council. (Ord. 2900 § 1 (Exh. A), 2017; Ord. 2554 § 3, 2003)

17.06.090 Land use decision time periods.

A. Type I-ADM Land Use Final Decisions.

1. Type I-ADM land use final decisions for a proposal that is exempt from environmental review under SEPA or for which environmental review under SEPA has been completed shall be issued within 90 days of the date of the written notice to the applicant that the application is complete.

2. Type I-ADM land use final decisions for a proposal that requires environmental review under SEPA shall be issued within 120 days of the date of the written notice to the applicant that the application is complete.

B. Type II Land Use Final Decisions. Type II land use final decisions other than appeals shall be issued within 120 days of the date of written notice to the applicant that the application is complete.

C. In determining the number of days that have elapsed after an application is determined to be complete, the following time periods shall be excluded:

1. Any period during which the applicant has been required by the director to correct plans, perform required studies, or provide additional and required information. Such period shall be calculated from the date the director notifies the applicant of the need for additional information until the date the director receives the additional information. Pursuant to RCW 36.70B.070(4), the director shall have 14 days after the date the information has been provided to determine adequacy of the information and make a determination of completeness; or

2. Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW and Chapter 17.80 BMC; or

3. The period of time during which an administrative appeal affecting the proposal was heard and decided upon subject to the time limitations of BMC 17.06.180(E) and (F); or

4. Any period in which the applicant has not met public notification requirements of BMC 17.06.100; or

5. Any period of time mutually agreed upon in writing by the applicant and the director.

D. The time limits established by subsections A and B of this section shall not apply if the application for a land use decision:

1. Requires an amendment to the city of Blaine comprehensive plan or the Blaine Municipal Code; or

2. Involves the siting of an essential public facility; or

3. Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete.

E. The director shall not be liable for damages for failure to make a final decision within the time limits established under this section.

F. 1. Above and beyond the requirements of subsections (A) through (E) of this section, all permit applications shall be valid for one year from the date of the written notice that the application is complete. If a final decision by the review authority is not made within this time, the application shall become null and void unless an extension is granted. The review authority may grant a maximum of two one-year extensions at the timely request of the applicant upon the determination by the city that the applicant can establish that a reasonable good faith effort to complete the project application was undertaken during the time that the application was pending. Each one-year extension shall be considered independently.

2. In determining the number of days that have elapsed after an application is determined to be complete for the purposes of subsection (F)(1) of this section, any time period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW and Chapter 17.80 BMC shall be excluded. (Ord. 2811 § 2 (Exh. A), 2012; Ord. 2728 § 2 (Exh. A), 2009; Ord. 2673 § 2, 2007; Ord. 2554 § 3, 2003)

17.06.095 Publication of notices.

The cost of all published notices required by this title shall be paid by the project proponent.

A. The director shall provide any required notice to the applicant in a digital format via electronic mail or other appropriate media to facilitate transfer of the notice to the newspaper designated by the city council.

B. The proponent shall provide the notice to the newspaper for publication on the required date of publication.

C. The cost of said notice shall be paid directly to the newspaper by the proponent.

D. An affidavit of publication shall be provided to the city within 10 days of publication. (Ord. 2763 § 2 (Exh. A), 2010)

17.06.100 Notice of application requirements.

A. The director shall ensure that a notice of application is published or posted for each of the land use decision types in accordance with this section. The applicant shall post notice of application and meet other notification requirements as determined by the director. Table A provides a summary of notice requirements.

Table A

Notice of Application Requirements 

Notice Requirements

Type I ADM w/SEPA

Type II

PC, HE and CC

Required Timing of Notification

 

 

Within 14 days of the determination of completeness

X

X

At least 14 days prior to a hearing

 

X

Required Methods

 

 

Post notice at City Hall

X

O

Post notice on city’s website

X

O

Erect sign(s) on subject property

 

X

Published in newspaper designated by city council

 

X

Mail notice to adjacent owners (within 300 feet)

 

X

Required Contents

 

 

Applicant name

X

X

Date of application

X

X

Brief description of proposed project

X

X

Date of the notice of application

 

X

List of project permits or other required approvals

 

X

List of studies requested by the city

 

X

Deadline for filing comments

 

X

Requesting a notice of any required hearings

 

X

Date, time, place and type of hearing

 

X

Requesting a notice of final decision

 

X

Notice of the right to appeal and to whom

 

X

Optional determination of nonsignificance

 

    X    – Required    O    – Optional         – Only if applicable

B. Repealed by Ord. 2879.

C. Type I-ADM Applications with SEPA Review. A notice of application for a Type I-ADM project permit not exempt from a SEPA threshold determination shall comply with the notification and content requirements contained in Chapter 197-11 WAC.

D. Type II Applications. A notice of application for Type II project permit applications shall be provided through publication, mailing, and posting of the subject property. A notice of application shall contain the following information:

1. The name of the applicant and date of application;

2. Date of the notice of application;

3. A brief description of the project, a list of project permits or other approval requests included in the application and a list of any studies requested by the city;

4. A summary of procedures and a deadline for filing comments, requesting notice of any required hearings, receiving decisions and any appeal procedure;

5. The date, time, place and type of hearing;

6. If applicable, a statement that the optional determination of nonsignificance (“DNS”) process is being used and that the public comment period may be the only opportunity to comment on the environmental impacts of the project.

E. Posting a Notice of Application. When posting a notice of application on the property, the following shall apply:

1. A notice of application shall be posted no later than one day after the date of publication. The director shall determine the location and number of signs necessary to ensure that adequate public notice is provided;

2. Sign(s) shall be maintained by the applicant until a final decision is made on the application, when it shall be promptly removed by the applicant;

3. Signs shall be at least one and one-half feet by two feet in size.

F. Publishing a Notice of Application. A notice of receipt of an application shall be published once in a newspaper officially designated by the city council for such purposes within the city.

G. Mailing a Notice of Application. When mailing the notice of application, the following shall apply:

1. A notice of application shall be sent by the applicant by certified mail to:

a. Property owners of record as shown in the records of the Whatcom County assessor’s office in the area within 300 feet of the external boundaries of the site;

b. Those persons who requested a mailed notice of application pursuant to BMC 16.04.130;

2. Notice shall be placed in the mail no later than the date of publication of the notice;

3. If the site adjoins a state highway, a notice of application shall be mailed to the State Department of Transportation;

4. If a site adjoins another jurisdiction, a notice of application shall be mailed to that jurisdiction;

5. The applicant shall provide proof of certified mailing to the director within 24 hours of mailing;

6. Mailed notice shall be considered supplementary to posted and/or published notice and be deemed satisfactory despite the failure of one or more owners to receive the mailed notice sent to addresses of record.

H. Time Limits for Notices of Applications. Notice of the Type II applications shall be sent for publication, mailed and posted by the director within 14 days following the director’s determination that the application is complete. A public comment period of 14 days shall be provided, except as otherwise provided in Section 7.6.2 of the city of Blaine shoreline program. The public comment period shall commence on the date of publication. (Ord. 2879 § 1 (Exh. A § 11), 2016; Ord. 2673 § 2, 2007; Ord. 2554 § 3, 2003)

17.06.110 Notice of the open record hearing.

A. Notice of the open record hearing shall be as follows:

1. A notice of the hearing providing the location and a general description of the proposed project shall be published at least 10 days prior to the hearing date in a newspaper officially designated by the city council for such purposes;

2. A written notice of the hearing shall be mailed to any person, agency, or organization that requests in writing notice of the hearing during the public comment process provided for in BMC 17.06.100;

3. A written notice of the hearing shall also be provided to any organization or individual who has requested, in writing, to receive notice of all land use applications encompassed by this chapter; provided, that the city may charge a reasonable fee for such notice.

B. If the posted notice of application required under BMC 17.06.090 does not include the time and date of the hearing, a notice of the hearing shall be added to the posted notice of application at least 10 days prior to the date of the hearing. (Ord. 2554 § 3, 2003)

17.06.120 Notice of final decision.

Notice of a final decision shall be as follows:

A. Notice of a Type I-ADM final decision will be provided by first class mail to the applicant and any person, agency, or organization who, prior to rendering the decision, requests in writing notice of the decision, and for decisions with SEPA threshold determinations, any person or agency entitled to notice pursuant to WAC 197-11-340 or 197-11-355, as applicable; and

B. Notice of a Type II Final Decision. Not later than three working days following the rendering of a written decision, copies of the decision shall be mailed to the applicant and to other parties of record in the case. (Ord. 2554 § 3, 2003)

17.06.125 Mineral resource land notification.

A. The community development department shall provide a notification to applicants proposing construction or development that requires a land use or building permit on lands within 500 feet of designated mineral resource lands that reads as follows:

1. All development permits and building permits issued for land within 500 feet of designated mineral resources lands designated by Whatcom County shall contain a note stating:

The property is near mineral resource lands whereupon a variety of commercial activities may occur that are incompatible with residential development for certain periods of limited duration, and an application might be made for mining-related activities, including mining, extraction, washing, crushing, stockpiling, blasting, transporting, and recycling of minerals.

(Ord. 2827 § 2 (Exh. A), 2013)

17.06.130 Final decision procedural requirements.

A. Type I Decision Procedures. Type I-ADM final decisions are issued by the director. The decision of the director shall be based on staff reports, agency reports, comments received during the review period, the requirements of the BMC, and all other relevant facts and information needed to determine compliance.

1. The director’s final decision shall be as follows:

a. Approval;

b. Disapproval specifying reasons for disapproval; or

c. Grant preliminary approval subject to conditions and completion of specified improvements.

B. Type II Decision Procedures. Procedures for Type II final decisions are as follows:

1. Upon making a determination of complete application, the director shall schedule a date for an open record hearing decision before the appropriate hearing body based on the type of decision under consideration and provide notice as set forth in BMC 17.06.100;

2. The director shall coordinate and assemble the review of other city departments having an interest in the Type II decision and shall prepare a consolidated staff report;

3. The staff report shall be made available to the applicant and parties of record by the distribution of a notice, and made available for public inspection. The staff report will:

a. Address the proposed development or action, summarizing the comments and recommendations of city departments, affected agencies, special districts, and public comments received within the 14-day comment period for the notice of application; and

b. Include the results of the consistency review conducted pursuant to BMC 17.06.160.

C. Open Record Hearing Requirements. For a Type II final decision requiring an open record hearing:

1. An open record hearing shall not be held sooner than 14 days after the date of publication of the notice of application;

2. The city shall hold no more than one open record hearing; and

3. The hearing body shall have the power to administer oaths, preserve order, and to issue summons for and compel the appearance of witnesses and production of documents and materials.

D. Type II Final Decisions.

1. The hearing body shall render a written decision within 14 days of the conclusion of an open record hearing unless a longer period is agreed to in writing by the applicant;

2. The decision shall include findings based upon the record and conclusions that support the decision;

3. Such findings and conclusions shall set forth the manner by which the decision or recommendation would carry out and conform to the city’s comprehensive plan, other adopted policies and objectives, zoning, and this chapter;

4. A final decision may be to grant, deny, or grant with such conditions, modifications, and restrictions as the hearing body finds necessary to make the application compatible with the environment and ensure compliance with the comprehensive plan, shoreline master program, State Environmental Policy Act, the city code and other ordinances found applicable. Examples of the kinds of conditions, modifications, and restrictions which may be imposed include, but are not limited to, additional setbacks, screenings in the form of fencing or landscaping, restrictive covenants, easements, dedications of additional rights-of-way, performance bonds, and measures to mitigate identified adverse environmental impacts associated with the proposed action;

5. Not later than seven working days following the rendering of a written final decision, copies of the decision shall be mailed to the applicant and to other parties of record in the case and notice shall be published, by the director, once in a newspaper officially designated by the city council for such purposes; and

6. With the exception of Type II-CC final decisions, all written final decisions shall provide notice of the right to an appeal of the final decision, if such appeal is allowed, and the manner and the time limits under which an appeal may be filed. Type II-CC final decisions are subject to judicial appeal as provided in BMC 17.06.190. There is no administrative appeal of a Type II-CC final decision. (Ord. 2811 § 2 (Exh. A), 2012; Ord. 2554 § 3, 2003)

17.06.140 Integrated SEPA procedures.

A. An application for approval shall comply with the notification requirements of Chapter 43.21C RCW, the State Environmental Policy Act (SEPA), Chapter 197-11 WAC, and Chapter 17.80 BMC.

B. Except for a determination of significance (DS) and except as otherwise expressly allowed by RCW 36.70B.110, the director may not issue a threshold determination until the expiration of the public comment period for the notice of application.

C. A determination of nonsignificance (DNS) or mitigated determination of nonsignificance (MDNS) for a Type I final decision shall be issued after the public comment period at the same time that the decision is made on the underlying permit.

D. If the city has made a determination of significance (“DS”) under Chapter 43.21C RCW prior to the issuance of the notice of application, the notice of the DS shall be combined with the notice of application and the scoping notice.

E. For Type I final decisions for which a DS is issued, a decision on the application shall be made no sooner than seven days and no later than 14 days after issuance of the final EIS.

F. For Type II final decisions, the SEPA threshold determination shall be issued at least 15 days prior to the open record hearing scheduled for the application.

G. The public comment period following the notice of application as provided in BMC 17.06.090(B) shall constitute the integrated comment period under the optional DNS procedure set forth in WAC 197-11-355. (Ord. 2554 § 3, 2003)

17.06.150 Consolidated permit review.

A. Pursuant to RCW 36.70B.120, the director may integrate and consolidate the review and decision on two or more project permits for the same site, subject to this chapter, that relate to the proposed project action.

B. A determination of completeness, notice of application, and notice of final decision must include all project permits being reviewed through the consolidated permit review process.

C. The consolidated permit review may combine an open record hearing on one or more permits with an open record appeal hearing on other permits.

D. The director shall be the designated permit coordinator for consolidated review. (Ord. 2554 § 3, 2003)

17.06.160 Consistency review by agencies.

A. Pursuant to RCW 36.70B.040(1), each project permit application will be reviewed by the director to determine consistency with the adopted comprehensive plan and development regulations.

B. Consistency shall be determined by consideration of the following four project characteristics in relationship to adopted comprehensive plan policies and development regulations:

1. Type of land use;

2. The level of development, such as units per acre or other measure of density;

3. Infrastructure, including public facilities and services needed to serve the development; and

4. The character of the development including, but not limited to, design features and critical area impacts.

C. Applications for proposals that will affect drainage, roads and/or public utilities shall be referred to the public works department. The public works director shall notify the director that the proposed roads, utilities, drainage facilities, and other improvements can or cannot conform to adopted development standards and the application complies with the concurrency requirements.

D. For applications with legal descriptions that have not been prepared by a land surveyor licensed in the state of Washington, the director shall, in such manner as he or she deems appropriate, establish the adequacy of legal descriptions.

E. The conclusions of a consistency determination by the director shall be documented in the project permit decision or staff report to the hearing body responsible for a final decision on the proposal. (Ord. 2554 § 3, 2003)

17.06.170 Variances.

A. The planning commission shall have the power and duty to authorize a variance from the terms of the area and dimensional regulations of this title when the request is consistent with the public interest and where, due to special conditions, literal enforcement of the provisions of this code would result in unnecessary hardship.

B. A variance from the terms of this title shall be granted by the planning commission when a written application for a variance is submitted demonstrating all of the following:

1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same district;

2. That literal interpretation of the provisions of this division would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this division;

3. That the special conditions and circumstances do not result from the actions of the applicant; and

4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this division to the other lands, structures or buildings in the same district.

C. No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts, shall be considered grounds for the issuance of a variance.

D. The following steps are required for consideration of a variance:

1. Notice of public hearing shall be given consistent with the timelines established in this chapter;

2. The planning commission shall hold an open record hearing addressing the variance request in conjunction with related permit applications or project proposals;

3. The planning commission shall make findings that all of the requirements of subsections (B)(1) through (4) of this section are met;

4. The planning commission shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure; and

5. The planning commission shall further make a finding that the granting of the variance will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

E. Repealed by 2692.

F. In granting any variance, the planning commission shall set the expiration date at 12 months from issuance. If establishment or construction of the variance conditions has not commenced within this 12-month period, the applicant may reapply for a new variance permit. The planning commission may extend the expiration date by one six-month period upon written request and evidence that the applicant intends to activate the permit within that time limit.

G. Under no circumstances shall the planning commission grant a variance to allow a use not permitted under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this division in the district. Variances shall be limited to the area and dimension requirements of this division. (Ord. 2728 § 2 (Exh. A), 2009; Ord. 2692 § 3(3), 2008; Ord. 2554 § 3, 2003)

17.06.180 Appeals.

A. Type I-ADM Final Decisions. Type I final decisions, when provided in writing, shall be final and conclusive unless a statement of appeal is filed by the applicant, a department of the city, or any aggrieved person in the manner set forth below:

1. A statement of appeal shall be in writing and include a brief statement of the matter being appealed and the basis for the appeal;

2. The statement shall be submitted to the director, filed with the appropriate city hearing body and shall be accompanied by a fee pursuant to the city’s unified fee schedule within 14 days of the issuance of the formal written decision. The appropriate hearing body shall be determined by the director based on the matter under appeal;

3. The applicant may choose to submit a more comprehensive statement setting forth in detail alleged errors and/or the basis for appeal. This statement must be submitted by the appealing person within 30 days following the issuance of the final decision;

4. The appeal of a Type I decision shall be an open record appeal.

B. Type II Final Decisions – Hearing Examiner or Planning Commission. Type II final decisions made by the hearing examiner or planning commission shall be final and conclusive unless within 14 days following the mailing of such decision a written statement of appeal is filed with the city council by the applicant, a department of the city, or party of record, who is also an aggrieved person. The statement shall set forth any alleged errors and/or the basis for appeal and shall be accompanied by a fee pursuant to the unified fee schedule; provided, that such appeal fee shall not be charged to a department of the city or to other than the first appellant. The appeal of a Type II decision shall be a closed record appeal.

C. Type II Final Decisions – City Council. Type II final decisions made by the city council shall be final and conclusive unless a timely judicial appeal is filed with the superior court of Whatcom County pursuant to BMC 17.06.190.

D. The timely filing of an administrative appeal shall stay the effective date of the decision until such time as the appeal is heard and decided or is withdrawn. The burden of proof regarding modification or reversal shall rest with the appellant.

E. Within seven days following the timely filing of an appeal, notice thereof and of the date, time, and place for the open record appeal hearing or closed record appeal action, as appropriate, shall be mailed to the applicant, the appellant, and to all other parties of record. Such notice shall provide a general description of the appeal and of the property location, and shall additionally indicate whether written and/or oral testimony will be accepted or whether the appeal is a closed record appeal.

F. A final decision on the appeal shall be rendered no later than 90 days after the timely filing of an appeal.

G. Type II-HE and Type II-PC final decisions on shoreline substantial development permits, conditional use permits and variances are appealable pursuant to Chapter 90.58 RCW and Chapter 17.92 BMC and not as provided in this chapter. (Ord. 2554 § 3, 2003)

17.06.190 Appeals to the Whatcom County superior court.

A. Appeals from the final decision of the city council on a land use decision shall be made to Whatcom County superior court within 10 days of the date the decision or action became final by filing both a petition for review in the Whatcom County superior court and serving the petition on all necessary parties in conformity with the requirements of the State Land Use Petition Act, Chapter 36.70C RCW.

B. Notice of the appeal and any other pleadings required to be filed with the court shall be served to the city clerk, the director, and city attorney within the applicable time period. This requirement is jurisdictional.

C. The cost of transcribing and preparing all records ordered, certified by the court or desired by the appellant for such appeal shall be borne by the appellant. The appellant shall post with the city clerk prior to the preparation of any records an advance fee deposit in the amount specified by the city clerk. Any overage will be promptly returned to the appellant.

D. No land use decision shall be deemed a final decision by the city and subject to judicial appeal until all available administrative appeals of the decision allowed by city code have been completed. Failure of a person to timely file an administrative appeal, if such is available, of a land use decision shall preclude further administrative or judicial review of the decision. (Ord. 2554 § 3, 2003)

17.06.200 Fees.

All building, land use and development fees are defined in the unified fee schedule, which is established by the city council under the recommendation of the finance director. All fees specified in the unified fee schedule shall apply and are required to be paid at the time of application, unless a different time for payment of the fee is set forth in the unified fee schedule, or a fee deferral agreement is approved by the city council. The fees set forth in the unified fee schedule shall apply regardless of whether such fee is specified in a particular section of the Blaine Municipal Code. (Ord. 2728 § 2 (Exh. A), 2009)