Chapter 17.36
ENFORCEMENT AND ADMINISTRATION

Sections:

17.36.010    Designation of responsible official.

17.36.020    Certificate of occupancy.

17.36.030    Records.

17.36.040    Amendments to zoning ordinance text and map.

17.36.050    Variances and conditional use permits.

17.36.060    Environmental review.

17.36.070    Violations and penalties.

17.36.010 Designation of responsible official.

It shall be the duty of the public works superintendent or their designee, herein called “responsible official,” to enforce the regulations of this division. The responsible official may call upon the police or other appropriate city departments or offices to assist in the enforcement of this division. (Ord. 20.M § 13.1, 1991)

17.36.020 Certificate of occupancy.

A. Before any use is established upon land or within a building, the owner of said land or building shall apply to the responsible official for a certificate of occupancy. Such application shall be in writing and shall contain a correct statement of the use intended to be established.

B. The responsible official shall issue a certificate of occupancy if the proposed use is in compliance with all regulatory requirements for the zone in which it is proposed.

C. No land or building shall be occupied or used until a certificate of occupancy has been issued by the city unless such occupancy lawfully existed prior to the effective date of this division.

D. The city may require a survey, at the land owner’s expense, if there is any question regarding building height, setbacks or any other dimensional requirements of this division.

E. Pursuant to Chapter 3.68 BMC, park impact fees for single-family detached dwelling units, single-family attached dwelling units and secondary dwelling units are due deferred until issuance of certificates of occupancy for those units, and the city has the right to withhold issuance of certificates of occupancy until payment in full of park impact fees. (Ord. 439 § 3 (Exh. C), 2016: Ord. 20.M § 13.2, 1991)

17.36.030 Records.

All applications and records relating to applications for rezoning or other development permits and all other records of building and use permits shall be filed with and kept in the custody of the city clerk. (Ord. 20.M § 13.3, 1991)

17.36.040 Amendments to zoning ordinance text and map.

Boundaries of the zones established by this division may be relocated or reestablished or the classification or property uses therein may be amended, reclassified or altered, and the provisions set forth in the text of this division may amend whenever public necessity and the general welfare require. Such proposed changes may be initiated by the verified petition of one or more owners of property proposed to be changed or reclassified; resolution of intention by the city council or resolution of intention by the planning commission.

A. Petitions for Zoning Amendment.

1. Application. An application to amend this division or a petition to amend the zoning map shall be filed with the city clerk. All applications to amend the zoning map shall be accompanied by a fee in the amount which is set by ordinance and payable to the city. No fees will be refunded.

2. Content of Petition for Rezone. A petition for the amendment of the zoning map shall include:

a. A legal description and location of the property sought to be reclassified;

b. The existing and proposed zoning classification;

c. The reason for the requested change including any public necessity and/or general welfare consistent with the goals and policies of the comprehensive plan which will occur;

d. The signatures and addresses of the owners of the property proposed for reclassification;

e. The names and addresses of owners of land and residents within a distance of three hundred feet of the land to be rezoned, together with stamped envelopes addressed to said owners.

3. Review Criteria. Changes in zoning designations shall be approved only when all of the following criteria are met. The burden of proof shall be on the applicant to demonstrate that the criteria can be met.

a. The change will be consistent with the purpose and intent of this division and the comprehensive plan of the city;

b. The change is necessary to make the zoning consistent with the comprehensive plan because the prior zoning was erroneously inconsistent with the plan or, even if the prior zoning was once consistent with the plan, changed conditions have caused inconsistency, or the zoning change is necessitated by a change in the comprehensive plan.

c. The planning commission and the city council must find that the change, if granted, will serve the public health, safety and general welfare and that the benefits of the change will outweigh any significant impacts.

4. Procedure. The following procedure shall apply to all rezoning applications:

a. Notice of Planning Commission Hearing. The city clerk shall set a date for a public hearing by the planning commission after staff has reviewed the application and prepared a report for the planning commission. The planning commission’s decision and recommendation to the city council shall be made within ninety days of the date the proposed amendment was filed with the city clerk; provided, however, that any time necessary for compliance with the requirements of the state environmental policy (Chapter 43.21C RCW) or any regulation issued pursuant thereto shall not be included in computing the ninety days.

Notices of the planning commission’s public hearing shall contain the following:

i. A statement of the nature of the proposed amendment;

ii. The date, hour and location of the hearing;

iii. A legal description of the subject property, and

iv. A vicinity sketch and a nonlegal description in language calculated to advise the general public of the location of the subject property.

Not less than ten days prior to the date of the public hearing, copies of the notice shall be posted at official posting locations of the city; the notice shall also be so published in at least one publication in a newspaper of general circulation delivered in the city. Copies of the notice shall also be sent to the adjacent property owners and residents within three hundred feet of the subject property by using the pre-addressed, stamped envelopes provided by the applicant.

These notices shall be deposited in the United States mail not less than ten days prior to the date of the planning commission hearing. At least three notices of proposed land use shall be posted in conspicuous places on or adjacent to the subject property.

b. Hearings May Be Continued. If, for any reason, a public hearing cannot be completed on the date set for such hearing, the presiding officer at such public hearing may, before the adjournment or recess thereof, publicly announce the time and place to and at which said hearing will be continued, and no further notice is required.

c. Report to City Council. Upon completion of the public hearing, the planning commission, not later than fifteen days thereafter, shall transmit to the city council its decisions and a report of the pertinent evidence offered at the hearing. The decision of the planning commission on the proposed amendment shall be advisory only.

d. City Council Action. Upon receipt of the planning commission’s recommendations, the city council shall set a date for a public hearing on the application. No additional notice shall be required. At the conclusion of the public hearing, the city council will consider the recommendations of the planning commission together with any additional facts presented and may grant, deny or modify the requested rezone and shall prepare written findings and conclusions that support and explain its decision. After the effective date of any ordinance reclassifying property within the city, the city engineer shall make the appropriate adjustments to the official zoning map and comply with all state laws relating to recording with the county auditor.

e. Reapplication. No person, firm, corporation, or other legal entity, shall be permitted to again apply for the same amendment to the official zoning map within six months following the public hearing of an application to rezone the same property, or portion thereof; provided, however, nothing herein shall prohibit the city council or planning commission from initiating and approving an amendment to the official zoning map for the same property or portion thereof within five months of an application to rezone the property.

B. Amendments to Zoning Ordinance Text.

1. Initiation. An amendment to the zoning ordinance text may be initiated by resolution of intention by the city council or by resolution of intention by the planning commission.

2. Review Criteria. Changes in zoning ordinance text shall be approved only when all of the following criteria are met:

a. The change will be consistent with the purpose and intent of this division and the comprehensive plan of the city.

b. The change is necessary to make the division text consistent with the comprehensive plan because the text was erroneously inconsistent with the plan or, even if the prior text was once consistent with the plan, changed conditions have caused inconsistency, or the zoning ordinance text change is necessitated by a change in the comprehensive plan.

c. The planning commission and the city council must find that the change, if granted, will serve the public health, safety and general welfare and that the benefits of the change will outweigh any significant impacts.

3. Procedure. The procedure and public notice requirements for amendments to zoning ordinance text shall be the same as that used for petitions for zoning amendments as described in subsection (A)(4) of this section; except that only the city council and planning commission may re-initiate a zoning ordinance text amendment and that re-initiation may occur at any time. (Ord. 20.M § 13.4, 1991)

17.36.050 Variances and conditional use permits.

This section establishes the procedures and criteria that the city shall use in making a decision upon an application for a variance or a conditional use permit.

A. Variances.

1. Purpose. A variance is a mechanism by which the city may grant relief from the provisions of the zoning code (this title), where practical difficulty renders compliance with the provisions of the zoning code an unnecessary hardship, where the hardship is the result of physical characteristics of the subject property and where the purpose of the zoning code and the comprehensive plan can be fulfilled upon granting of the variance. This statement of purpose is not decision criteria for a variance.

2. Who May Apply. Only the property owner(s) may apply for a variance.

3. Procedure. The process for an application for a variance is set forth in subsection C of this section.

4. Decision Criteria. The city council may approve or approve with modifications an application for a variance if all of the following criteria are met:

a. The variance for the subject property is not a grant of special privilege inconsistent with the regulations and restrictions to other properties in the vicinity and the zone in which the property is located; and

b. The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property, and is necessary to provide the property with the use rights and privileges permitted in the zone in which the property is located; and

c. The special circumstances of the subject property are not the result of actions of the applicant or a predecessor in interest; and

d. The special circumstances of the subject property make strict enforcement of the zoning code an unnecessary hardship to the property owner; and

e. The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property and the zone in which the property is located, in terms of such factors as noise, sanitation, traffic, pollution, erosion, vibration and physical hazards; and

f. The variance is the minimum necessary to fulfill the purpose of a variance and the needs of the applicant; and

g. The variance will not constitute a rezone or change the zone boundaries on the official zoning map; and

h. The variance is consistent with the purpose and intent of the zoning code; and

i. The variance is consistent with the comprehensive plan.

j. The fact that the property may be utilized more profitably after the variance is approved shall not be considered.

5. Exclusions. The city council shall not grant a variance from:

a. The allowable uses in the zone in which the subject property is located; or

b. Any provision of the zoning code which, by the terms of that provision, is not subject to a variance, including minimum lot size; or

c. Any provision of the subdivision code, which has its own modification procedure; or

d. Any procedural or administrative provisions of this code.

6. Assurance Device. A variance approval may contain appropriate conditions, terms and safeguards, including but not limited to performance or maintenance assurance devices to ensure compliance with the zoning code and the conditions, terms and safeguards of the variance approval.

B. Conditional Use Permits.

1. Purpose. A conditional use permit is a mechanism by which the city may consider uses which may be essential or desirable, but which are not allowed as a matter of right within a zone. This statement of purpose is not decision criteria for a conditional use permit.

2. Who May Apply. Only the property owner(s) may apply for a conditional use permit.

3. Procedure. The process for consideration of a conditional use permit is set forth in subsection C of this section.

4. Decision Criteria. The city council may approve or approve with modifications an application for a conditional use permit if all of the following criteria are met:

a. The use will not endanger the public health, safety and general welfare and will not be otherwise detrimental to the public in terms of such factors as noise, sanitation, traffic, pollution, erosion, vibration and physical hazards; and

b. The use meets all terms, conditions and specifications of the zone in which the subject property is located; and

c. The use will not be injurious or detrimental to adjoining or abutting property, or despite being injurious or detrimental to adjoining or abutting property that the use is a public necessity; and

d. Specific terms, conditions and specifications may be imposed, including but not limited to:

i. Increasing the requirements of the zoning code;

ii. Stipulating the exact location of buildings and structures to minimize adverse impacts and hazards;

iii. Requiring structural features or equipment essential to minimize adverse impacts and hazards;

iv. Imposing terms, conditions and specifications to minimize adverse impacts and hazards, as deemed necessary to establish parity with uses permitted in the same zone, in terms of such factors as noise, odor, air pollution, waste, vibration, traffic and physical hazard; and

e. The conditional use permit 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 property is located, in terms of such factors as noise, sanitation, traffic, pollution, erosion, vibration and physical hazard; and

f. The conditional use permit is consistent with the purpose and intent of the zoning code; and

g. The conditional use permit is consistent with the comprehensive plan; and

h. The conditional use permit will not be injurious to the neighborhood.

5. City Council Authority. As part of its decision approving or modifying the application, the city council may prescribe any terms, conditions and specifications that it deems necessary or desirable for the public interest. The city council may allow relaxation of the development standards of the zoning code if it finds that alternative amenities, improvements, proposed location of uses or structures, or other features incorporated into the proposal are in harmony with the general purpose of the zoning code and would provide equal or better protection to the public interest than the standards proposed to be modified.

6. Assurance Device. A conditional use permit may contain appropriate terms, conditions and safeguards to ensure compliance with the zoning code and the conditional use permit.

C. Application Procedure. The following procedure shall apply to all variance and conditional use permit applications:

1. General Procedure. An application for a variance or conditional use permit shall be reviewed and analyzed by city staff, considered by the planning commission after a public hearing, and determined by the city council upon recommendation of the planning commission.

2. Submittal Requirements. The property owner(s) shall submit an application for a variance or conditional use permit on forms prescribed by the city, and the complete form shall be accompanied by the following information, unless the mayor or designee waives any of these items upon written request and a finding that the item is not necessary to analyze or process the application:

a. A legal description of the subject property, including parcel number;

b. A vicinity map, showing the location of the subject property in relation to nearby streets and properties;

c. A written statement addressing the decision criteria, together with any documentation that supports the written statement;

d. A written summary of the proposal, including the goals of the proposal, the section(s) of this municipal code which require approval of the application, and the relationship of the proposal to the use of adjoining properties;

e. A written description of the proposed use of the site, including hours of operation, number of employees, and any proposed storage or use of hazardous materials if applicable;

f. A site plan of the subject property, drawn to scale, showing all information needed to illustrate the proposal, including but not limited to existing and proposed buildings, structures, utilities, natural features, critical areas, parking areas and other improvements, and showing buildings, structures, and other improvements and natural features that are located within fifty feet of the subject property. Information may be shown on several sheets if needed for readability;

g. For new construction:

i. A landscape plan, showing existing and proposed landscaping and fencing;

ii. Exterior elevations of all existing and proposed structures; and

iii. Floorplans for all existing and proposed structures;

h. A summary table of proposal statistics, including site area, building coverage, impervious area, required and proposed parking, and similar data, as required, in order to evaluate conformance of the proposal with this code;

i. A list of uses for which the subject property will be used and the gross floor area or gross lot area that each use will occupy;

j. A statement to the effect that the applicant or applicants are the sole owners of the subject property;

k. A completed SEPA checklist, unless the proposal is categorically exempt from SEPA review;

l. A list of other permits that are or may be required for development of the property (issued by the city or by other government agencies), insofar as they are known to the applicant;

m. A list of other applications for city permits or approvals that are to be processed concurrently with the application; and

n. Fees in the amount set forth in Chapter 3.04 BMC and payable to the city.

3. Referral to City Departments and Other Agencies. Concurrent with issuing a notice of application, staff shall refer the application to all applicable departments and appropriate local, regional, state or federal agencies that may provide service(s) to the proposal or subject property or that may have special expertise for reviewing the application. City staff shall prepare a report on the application for submittal to the planning commission, which shall include a recommendation on the application and facts, conclusions and documents in support of the recommendation.

4. Notice of Planning Commission Hearing. The planning commission shall hold a public hearing on the application. After city staff completes the report on the application, the city clerk shall set a date for the public hearing and provide notice of the public hearing.

The notice of the public hearing shall contain the following information:

a. A statement of the nature of the variance or conditional use permit application;

b. The date, hour and location of the hearing; and

c. A vicinity sketch and a nonlegal description of the location of the subject property.

The city clerk or designee shall post the notice at the official posting locations of the city not less than ten days prior to the date of the public hearing. The city clerk or designee shall publish the notice in a newspaper of general circulation in the city not less than ten days prior to the date of the hearing. The mayor or designee shall send the notice by regular U.S. mail to the owners of property as shown on the records of the county assessor within three hundred feet of the subject property. The mayor or designee shall post the notice in a conspicuous place on each side of the subject property that is adjacent to an improved public right-of-way, or if there is no improved public right-of-way adjacent to the property, on the side of the property that is most visible to the public.

5. Hearing May Be Continued. If for any reason the public hearing before the planning commission cannot be completed on the date set for the hearing, the planning commission may continue the hearing to a designated time and location. Notice of the continued hearing shall be given pursuant to the requirements of RCW 42.30.090 and 42.30.100.

6. Recommendation to City Council. After holding the public hearing and deliberating on the application, the planning commission shall vote to recommend approval, modification or denial of the application. The recommendation to city council shall include, but not be limited to, the recommendation itself, findings of fact and conclusions in support of the recommendation, the staff report, a summary of the testimony at the public hearing, and all records received by city staff and the planning commission. The mayor or designee shall submit the recommendation to the city council and a copy thereof to the city clerk or designee.

7. City Council Action. After receipt and consideration of the planning commission’s recommendation, the city council shall render a decision on the application for variance or conditional use permit, which shall include written findings of fact and conclusions that support and explain the decision. The city council may enter the written decision at the meeting at which the decision is first considered or at a subsequent meeting.

8. Reapplication. If the city council denies a variance or conditional use application, the city shall not accept an application for the same proposal on the subject property within six months from the date of entry of the decision; provided, that the mayor or designee may authorize the processing of an application for a variance or conditional use permit if the applicant demonstrates that changed conditions on the subject property or surrounding property justify the reapplication.

9. Time Limitation. The variance approval or conditional use permit shall expire automatically and shall be void if the property owner fails to obtain a building permit or other necessary development permits for improvements included in the variance or conditional use permit decision, and fails to substantially complete such improvements within two years of the date of entry of the decision. The mayor or designee is not required to give notice of the automatic expiration to the owner.

10. Extension. Upon application by the applicant on forms prescribed by the city, the mayor or designee may extend a variance approval or conditional use permit for up to one year, if:

a. Unforeseen circumstances or conditions necessitate the extension;

b. Termination would result in unreasonable hardship to the applicant;

c. The applicant is not responsible for the delay; and

d. The extension will not be substantially detrimental to existing uses in the immediate vicinity of the subject property. (Ord. 443 § 2 (Exh. B), 2016: Ord. 20.M § 13.5, 1991)

17.36.060 Environmental review.

Review under the State Environmental Policy Act (SEPA) and the Brier SEPA ordinance is required in addition to the requirements imposed by this division. Where such review requires the extension in the amount of time necessary to do or perform any act required by the division, the time limits for meeting the requirements of SEPA will control. (Ord. 20.M § 13.6, 1991)

17.36.070 Violations and penalties.

A. Violation of any part or portion of Chapters 17.08, 17.16, 17.24, 17.28, 17.29, 17.30 and 17.48 BMC and BMC 17.36.020, or conduct made unlawful in this division, shall constitute a nontraffic civil infraction and shall be punished in accordance with the provisions of BMC 1.28.030(C).

B. Further clarifying: Any person, firm or corporation who builds, erects, constructs, alters, rebuilds, renovates, enlarges, expands, activates, operates or maintains any building, structure, or use within the city and fails to abate, correct, obtain permits or licenses or engages in off-street parking after receiving a notice of violation shall be issued a Class A infraction; provided, however, any violator who fails to abate, correct, obtain permits or licenses promptly after issuance of a first infraction shall be guilty of a second, separate violation, and failure to abate, correct, obtain permits or licenses shall be punished by a Class B infraction. A third offense shall be a Class C infraction. Continual failure to abate, correct, obtain permits or licenses or failure to respond to any infraction as issued shall constitute a misdemeanor and shall be punished in accordance with the provisions of BMC 1.28.030(A). (Ord. 435 § 2 (Exh. B) (part), 2016: Ord. 20.W § 16, 2001: Ord. 20.M § 14, 1991)