Chapter 18.01
GENERAL PROVISIONS

Sections

18.01.010    Title.

18.01.020    Application.

18.01.030    Purpose.

18.01.040    Authority.

18.01.050    Definitions.

18.01.060    Liability.

18.01.070    Enforcement.

18.01.080    Unauthorized use of structures or land prohibited.

18.01.090    Enforcement – Violation – Penalty.

18.01.100    Enforcement by civil penalty – Appeal.

18.01.110    Enforcement by criminal penalties.

18.01.120    Enforcement by Superior Court civil action.

18.01.130    Severability.

18.01.140    Appeal.

18.01.010 Title.

This Title shall be known as “Zoning.” This chapter shall be entitled “General Provisions.” [Ord. 1591 § 1, 2014.]

18.01.020 Application.

This chapter shall be applicable to all chapters contained within this Title. The provisions adopted by this Title shall be applicable to all zones in the City and all zoning actions, as specified in this Title. [Ord. 1591 § 2, 2014.]

18.01.030 Purpose.

The purpose of this Title is to implement the purposes of the Comprehensive Plan and to classify uses and to regulate the location of such uses in such manner as to group as nearly as possible those uses which are mutually compatible, and to protect each such group of uses from the intrusion of incompatible uses which would damage the security and stability of land and improvements and which would also prevent the greatest practical convenience and service to the citizens of Des Moines. It is also recognized that intrusion of uses in one zone upon uses in another lighter zone may also result from effects reaching across boundary lines separating contiguous zones due to noise, smoke, equipment, open air activity, or other features. To further accomplish the goal of compatibility, varying degrees of regulations are established for certain uses in the Commercial and Business Park Zones when such uses are contiguous to lighter zones. A further purpose of this Title is to make it possible for Des Moines to efficiently and economically design, install, and operate physical public service facilities in terms of type, size, and capacity, including streets, sewers, drains, schools and other public buildings, to adequately and permanently meet the ultimate requirements as determined by a defined intensity and type of land use; to require an orderly arrangement of essential related facilities with particular reference to the movement of people and goods, including the traffic pattern and well-located and well-designed off-street parking areas and, through the medium of the zoning map which is a part of this Title, to establish the geographical location and boundaries of the zones to which the different zones will apply.

A further purpose of this Title is to establish required minimum lot area, yards and open spaces as a means of providing a suitable environment for living, business and industry, and to maintain reasonable population densities and reasonable intensities of land use, all for the general purpose of conserving public health, safety, morals, convenience, and general welfare. [Ord. 1591 § 3, 2014.]

18.01.040 Authority.

This Title is created pursuant to the authority set forth in chapters 35A.63, 36.70A, 36.70B, and 36.70C RCW and other applicable laws. [Ord. 1591 § 4, 2014.]

18.01.050 Definitions.

As used in this Title, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.

“Accessory” means a use, a building or structure, part of a building or other structure, which is subordinate to and the use of which is incidental to that of the main building, structure, or use on the same lot, including a private garage. If an accessory building is attached to the main building by a common wall or roof, such accessory building shall be considered a part of the main building.

“Accessory dwelling unit (ADU)” means a detached structure or an attached part of a structure that is subordinate and incidental to the main or primary dwelling unit. ADUs provide complete independent living facilities exclusive for one single housekeeping unit, including provisions for living, sleeping, cooking, and sanitation. References to “accessory living quarters” or “ALQs” throughout the DMMC shall mean “accessory dwelling units” or “ADUs” and may be used interchangeably.

“Adult bathhouse” means a commercial bathhouse which excludes any person by virtue of minimum age from all or any portion of the premises.

“Adult cabaret” means a commercial establishment which presents go-go dancers, strippers, male or female impersonators, or similar entertainers, and which excludes any person by virtue of minimum age from all or any portion of the premises.

“Adult entertainment facilities” means adult cabarets, adult retail uses, adult massage parlors, adult sauna parlors, adult bathhouses, and adult motion picture theaters, which are further more specifically defined below.

“Adult family home” means a regular family abode of a person or persons who are providing personal care, room, and board to more than one but not more than four adults who are not related by blood or marriage to the person or persons providing the services; except that a maximum of six adults may be permitted if the Department of Social and Health Services determines that the home is of adequate size and that the home and the provider are capable of meeting standards and qualifications as provided for in chapter 70.128 RCW as presently constituted or as may be subsequently amended or recodified. For the purpose of this section, an “adult” is a person who has attained the age of 18 years.

“Adult massage parlor” means a commercial establishment in which massage or other touching of the human body is provided for a fee and which excludes any person by virtue of minimum age from all or any portion of the premises in which such service is provided.

“Adult motion picture theater” means an enclosed building used for presenting motion picture films or video tapes or any other visual media distinguished or characterized by an emphasis on, matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this zoning code, for observation by patrons therein.

“Adult oriented merchandise” means any goods, products, commodities, or other wares, including, but not limited to, videos, CDs, DVDs, magazines, books, pamphlets, posters, cards, periodicals or nonclothing novelties, which depict, describe or simulate specified anatomical areas or specified sexual activities.

“Adult retail use” means a retail establishment which, for money or any other form of consideration, either:

(1) Has as one of its principal purposes to sell, exchange, rent, loan, trade, transfer, and/or provide for viewing or use, off the premises, any adult oriented merchandise; or

(2) Provides, as its substantial stock in trade, for the sale, exchange, rental, loan, trade, transfer, and/or provide for viewing or use, off the premises, any adult oriented merchandise.

“Adult sauna parlor” means a commercial sauna parlor which excludes any person by virtue of minimum age from all or any portion of the premises.

“Antenna system” means the mast and all attached antennas of only a commonly used and commercially available type, excluding parabolic antennas such as microwave dishes, which are used to transmit or receive any portion of the radio spectrum.

“Apartment” means a room, or a suite of two or more rooms, in a multiple dwelling or in any other building not a single-family dwelling or a duplex dwelling occupied or suitable for occupancy as a dwelling unit for one family.

“Apartment house” means a building, or a portion of a building, designed for occupancy by three or more families living separately from each other and containing three or more dwelling units.

“Aquifer” means a consolidated or unconsolidated ground water-bearing geologic formation or formations that contain enough saturated permeable material to yield significant quantities of water to wells.

“Artificial grade” means a manmade grade created by means of earthen terraces, berms, fills, or the like, specifically for the purpose of gaining a height advantage or disguising the true height of a structure.

“Automobile, boat, and trailer sales area” means an open area, other than a street, used for the display, sale, or rental of new or used automobiles, boats, or trailers, and where no repair work is done except minor incidental repair of automobiles, boats, or trailers to be displayed, sold, or rented on the premises.

“Automobile house trailer” means a vehicle without motor power designed to be drawn by a motor vehicle and to be used for human habitation, including a trailer coach, camper, mobile home, or any self-propelled vehicle having a body designed for or converted to the same use as a house trailer.

“Automobile service station” means an occupancy which provides for:

(1) The servicing of motor vehicles and operations incidental thereto limited to the retail sale of petroleum products and automotive accessories; automobile washing by hand; waxing and polishing of automobiles; tire changing and repairing (excluding recapping); battery service, charging, and replacement, excluding repair and rebuilding; radiator cleaning and flushing, excluding steam cleaning and repair; and installation of accessories.

(2) The following operations if conducted within a building: lubrication of motor vehicles; brake servicing limited to servicing and replacement of brake cylinders, lines, and brake shoes; wheel balancing; the testing, adjustment, and replacement or servicing of carburetors, coils, condensers, distributor caps, fan belts, filters, generators, points, rotors, sparkplugs, voltage regulators, water and fuel pumps, water hoses, and wiring.

“Basement” means that portion of a building having its floor subgrade below ground level on all sides as defined by the International Building Code.

“Board” means the City Council.

“Buffer” means either: an area adjacent to hillsides which provides the margin of safety through protection of slope stability, attenuation of surface water flows and landslide, seismic, and erosion hazards reasonably necessary to minimize risk to the public from loss of life, well-being, or property damage resulting from natural disasters; or an area adjacent to a stream or wetland which is an integral part of the stream or wetland ecosystem, providing shade; input of organic debris and coarse sediments; room for variation in stream or wetland boundaries; habitat for wildlife; impeding the volume and rate of runoff; reducing the amount of sediment, nutrients, and toxic materials entering the stream or wetland; and protection from harmful intrusion to protect the public from losses suffered when the functions and values of stream and wetland resources are degraded.

“Building” means any structure having a roof, but excluding all forms of vehicles even though immobilized. When a use is required to be within a building, or where special authority granted pursuant to this Title requires that a use shall be within an entirely enclosed building, then the term “building” means one so designed and constructed that all exterior walls of the structure shall be solid from the ground to the roof line, and shall contain no openings except for windows and doors which are designed so that they may be closed.

“Building height” means the vertical distance from the grade to the highest point of the coping of a flat roof, or to the deck line of a mansard roof, or to the height of the highest gable of a pitch or hip roof.

“Building site” means a parcel of land assigned to a use, to a main building, or to the main building and its accessory buildings, together with all yards and open spaces required by this Title, whether the area so devoted is comprised of one lot, a combination of lots, or combination of lots and fractions of lots.

“Cemetery” means land used or intended to be used for the burial of the human dead and dedicated for cemetery purposes, including columbariums, crematories, mausoleums, and mortuaries when operated in conjunction with and within the boundary of such cemetery.

“Church” means an establishment, the principal purpose of which is religious worship and for which the principal building or other structure contains the sanctuary or principal place of worship, and including accessory uses in the main building or in separate buildings or structures, including Sunday school rooms and religious education classrooms, assembly rooms, kitchen, library room or reading room, recreation hall, a one-family dwelling unit and residences on site for nuns and clergy, but excluding facilities for training of religious orders.

“Closed record appeal” shall have the meaning given such term in DMMC 18.20.240.

“Commercial parking lot” means a building site, exclusive of public rights-of-way, or building dedicated to the parking of more than 10 passenger vehicles, serving patrons, occupants, and/or employees of a permitted use(s) not located on the site of the parking facility.

“Commercial recreational area” means an area operated for profit and devoted to facilities and equipment for recreational purposes, including swimming pools, tennis courts, playgrounds, and other similar uses whether the use of such area is limited to private membership or whether open to the public upon the payment of a fee.

“Compensation” means the replacement, enhancement, or creation of an undevelopable environmentally critical area equivalent in functions, values, and size to those being altered or lost from development.

“Conditional use” means a use permitted in one or more zones as defined by this Title but which use because of characteristics peculiar to it, or because of size, technological processes, or type of equipment, or because of the exact location with reference to surroundings, streets, and existing improvements or demands upon public facilities, requires a special degree of control to make such uses consistent with and compatible to other existing or permissible uses in the same zone or zones, and to assure that such use shall not be inimical to the public interest.

“Conditional use permit” means the documented evidence of authority granted by the Board of Adjustment to locate a conditional use at a particular location.

“Conforming building” means:

(1) In the Residential Zones, a building which is considered to be a residential building by the building code, and other buildings designed to accommodate uses permitted in these zones and which buildings also conform to the requirements of this Title in the matter of use, height, yards, and area coverage, and which do not contain more than the number of dwelling units prescribed for the zone in which such buildings are located.

(2) In the Commercial Zones, a building which is considered under the building code as a building designed to accommodate uses permitted in the Commercial Zones.

“Conforming use” means an activity the nature and type of which is permitted in the zone in which the property on which it is established is located.

“Corner lot” means a lot situated at the intersection of two or more streets, the street frontages of which lot form an angle not greater than 128 degrees, and not less than 45 degrees.

“Court” means any portion of the interior of a lot or building site which is fully or partially surrounded by buildings or other structures and which is not a required yard or open space.

“Dangerous waste” means those wastes designated in WAC 173-303-070 through 173-303-103 as dangerous wastes. “Dangerous waste” also is any discarded, useless, unwanted, or abandoned substances, including but not limited to certain pesticides, or any residues or containers of such substances which are disposed of in such a quantity or concentration as to pose a substantial hazard or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties or are corrosive, explosive, flammable, or may generate pressure through decomposition or other means. Moderate risk waste is not a dangerous waste.

“Date of decision” means the date the final decision or determination is rendered or issued, unless specified otherwise by law.

“Developable area” means the “site area” less the following areas:

(1) Areas within a project site that are required to be dedicated for public rights-of-way;

(2) Environmentally critical areas and their buffers to the extent they are required by the City to remain undeveloped;

(3) Areas required for storm water control facilities, including but not limited to retention/detention ponds/vaults, biofiltration swales and setbacks from such ponds and swales;

(4) Areas required by the City to be dedicated or reserved as on-site recreation areas;

(5) Other areas, excluding setbacks, required by the City to remain undeveloped.

“Development activity” means any work, condition, or activity which requires a permit or approval under Title 11, 12, 14, 16, 17 DMMC or this Title.

“Duplex” means a building designed exclusively for occupancy by two families living independently of each other, and containing two dwelling units. Duplexes may contain units that are not at ground level.

“Dwelling” means a building designed exclusively for residential purposes, including one-family, duplex, townhouse, and multiple dwellings, which is constructed in accordance with Title 14 DMMC, City Buildings and Construction Code, as presently constituted or as may be subsequently amended, but not including hotels or motel units having no kitchens.

“Dwelling unit” means one or more rooms designed for or occupied by one family for living or sleeping purposes and containing kitchen facilities for use solely by one family. All rooms comprising a dwelling unit shall have access through an interior door to other parts of the dwelling unit. A bachelor apartment constitutes a dwelling unit within the meaning of this Title.

“Elementary school” means any institution of learning giving general academic instruction in the several branches of learning and study required by the education code of the state to be taught in the public and parochial schools.

“Enhancement” means the manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, floodwater retention, or wildlife habitat. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities.

“Essential public facilities (EPF)” include those facilities that are typically difficult to site, as defined in RCW 36.70A.200 and WAC 365-196-560, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

“Extremely hazardous waste” means those wastes identified in WAC 173-303-070 through 173-303-103 as extremely hazardous wastes. Extremely hazardous waste is also disposal of hazardous waste at any facility in such quantities that would pose a significant danger to man or the environment or any waste that persists in a hazardous form for several years or more at a disposal site and which in its persistent form presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic makeup of man or wildlife or is highly toxic to man or wildlife.

“Family day care provider” means a licensed day care provider who regularly provides day care for not more than 12 children in the provider’s home in the family living quarters.

“First permitted” means the most restricted zone in which a particular use is indicated as a permissible use.

“Floor area” means a total floor area within the walls of all buildings on a lot or building site, except for the spaces therein devoted to vents, shafts and light courts and except for the area devoted exclusively to loading and unloading facilities and to parking of motor vehicles.

“Front yard” means an area extending across the full width of the lot and lying between the lot front line and a line drawn parallel thereto, and at a distance therefrom equal to the required front yard depth as prescribed in each zone. Front yards shall be measured by a line at right angles to the lot front line, or by the radial line or radial line extended in the case of a curved lot front line.

“Grade” means the average of the finished ground level at the center of all exterior walls of a building. In case walls are parallel to or within five feet of a sidewalk, the sidewalk shall be considered the finished ground level.

“Grade, artificial grade” means a manmade grade created by means of earthen terraces, berms, fills, or the like, specifically for the purpose of gaining a height advantage or disguising the true height of a structure.

“Grade, highest sidewalk” means the highest elevation of the sidewalk parallel to the building frontage.

“Grade, mean average sidewalk” means the mathematical average of the highest and lowest elevations of the sidewalk parallel to the building frontage. Mean average sidewalk grade is a horizontal plane at a specific elevation.

“Grade, mean average street frontage” means the mathematical average of the highest and lowest elevations of the public right-of-way parallel to the building frontage. Mean average street frontage grade is a horizontal plane at a specific elevation.

“Grade, median sidewalk” means the average elevation of a sidewalk, abutting a commercial street, as designed by the City, along the public street line; except that for the west side of Marine View Drive South, median sidewalk grade shall be defined as the average elevation of the alley extending mid-block between 7th Avenue South and Marine View Drive South. For properties lying between Marine View Drive South and 8th Avenue South, sidewalk grade shall be established at Marine View Drive grade elevations.

“Gross floor area” means the area included within the surrounding exterior walls of a structure or building expressed in square feet and fractions thereof. The gross floor area of structure or building not provided with surrounding exterior walls shall be the area under each outer edge of the roof.

“Group dwelling” means more than two separate buildings, each containing one or more dwelling units.

“Hazardous substance” means any solid, liquid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any characteristics or criteria of hazardous waste as described in WAC 173-303-090, 173-303-101, 173-303-102, or 173-303-103.

“Hazardous waste” means any dangerous waste or extremely hazardous waste. Moderate risk waste is not a hazardous waste.

“High school” means any institution of learning giving general academic instruction in the several branches of learning and study required by the education code of the state to be taught in the public and parochial schools.

“Highest sidewalk grade” means the highest elevation of the sidewalk parallel to the building frontage.

“Historic Properties Survey: City of Des Moines” means the Historic Properties Survey: City of Des Moines as prepared on October 14, 1994, for the City. A copy of this survey is maintained on file in the office of the City Clerk and in the office of the Planning, Building and Public Works Director and is available for public inspection.

“Home occupation” means an occupation customarily incident to the use of the premises as a dwelling place and not one in which the use of the premises as a dwelling place is largely incidental to the occupation carried on; provided, such occupation is carried on by a member of the family residing within the dwelling place.

“Hospital” means an institution specializing in giving clinical, temporary, and emergency services of a medical or surgical nature to human patients and is licensed by the state to provide facilities and services in surgery, obstetrics, and general medical practice, excluding substance abuse facilities and mental hospitals.

“Hospital, mental” means an institution specializing in treatment of mental illness, licensed by the state to provide such services.

“Hotel” means a building in which there are six or more guest rooms where lodging with or without meals is provided for compensation, and where no provision is made for cooking in any individual room or suite, and in which building may be included one apartment for use of the resident manager, but shall not include jails, hospitals, asylums, sanitariums, orphanages, prisons, detention homes, and similar buildings where human beings are housed or detained under legal restraint.

“Housekeeping unit” means no more than three unrelated, or an unlimited number of individuals who are related. This definition does not limit the number of residents if the limit prevents the City from making reasonable accommodations to disabled persons to afford them equal opportunity to use and enjoy a dwelling at required by federal or state law.

“Interior lot” means a lot other than a corner lot or a reverse corner lot.

“Internal lot” means a lot within a planned unit development or townhouse development for the purpose of separate ownership of dwellings or for undivided ownership of common areas and facilities. An internal lot will also be a corner lot, interior lot, key lot, reverse corner lot, through lot, or transitional lot.

“Kennel” means a place where four or more adult dogs or cats or any combination thereof are kept, whether by owners of the dogs and cats or by persons providing facilities and care, whether or not for compensation, but not including a small animal hospital or clinic. An adult dog or cat is one of either sex, altered or unaltered, that has reached the age of four months.

“Key lot” means the first lot to the rear of a reverse corner lot and whether or not separated by an alley.

Land Use Intensity. The following definitions of “land use intensity” serve as the basis for establishing wetland buffers and development standards as codified in chapter 16.10 DMMC.

(1) “High intensity land use” means land uses which are associated with high levels of human disturbance or substantial habitat impacts including, but not limited to, medium- and high-density residential (more than one home per five acres), multifamily residential, and commercial and industrial land uses. The majority of land uses in Des Moines are considered “high intensity land use.”

(2) “Moderate intensity land use” means land uses which are associated with moderate levels of human disturbance or substantial habitat impacts including, but not limited to, active recreation.

(3) “Low intensity land use” means land uses which are associated with low levels of human disturbance or low habitat impacts, including, but not limited to, passive recreation and open space land uses.

“Lighter uses” means uses involving performance standards having less detrimental effect upon surrounding properties and uses in the same or other zones than do uses first permitted in the next succeeding zone in terms of nuisance, hazard, generation of traffic and volume of traffic, both passenger and freight, and which uses make less demand upon public services such as electricity, gas, sewers, and streets. Where residential uses are involved, the term “lighter uses” means less permitted population density, possibly greater required yards, open spaces, and floor area within dwellings than is permitted or required in the next succeeding Residential Zone.

“Loading space” means an on-site space or berth on the same lot or site with the buildings or use served, such space to serve for the temporary parking of a vehicle while loading or unloading merchandise, materials, or passengers.

“Lodging house” means a dwelling unit within which not more than five guest rooms are devoted to accommodating not more than 10 persons other than members of the family, but wherein meals for guests shall be neither provided nor permitted. A lodging house containing guest rooms numbering six or more shall be considered a hotel.

“Lot” means a building site that is described by reference to a recorded plat, by metes and bounds, or by section, township, and range which has direct legal access to a street or has access to a street over an easement approved by the City.

“Lot area” means the total horizontal area within the boundary lines of a lot; provided, that the following areas are not included within the lot area and are not used to compute lot area or the area available for the satisfaction of any required yard:

(1) The area of a vehicular surface access easement or private street; and

(2) The area seaward of the ordinary high water mark from Puget Sound; and

(3) The area of any lake or pond, natural or artificial.

“Lot depth” means the horizontal length of a straight line drawn from the midpoint of the lot front line and at right angles to such line to its intersection with a line parallel to the lot front line and passing through the midpoint of the lot rear line. In the case of a lot having a curved front line, the lot front line, for purposes of this section shall be deemed to be a line tangent to the curve and parallel to a straight line connecting the points of intersection of the lot side lines of the lot with the lot front line.

Lot Line.

(1) “Lot front line or front lot line” means, in the case of an interior lot, a line separating the lot from the street; and in the case of a corner lot and reverse corner lot, the lot front line shall be the line separating the narrowest street frontage of the lot from the street. In case of corner lots or reverse corner lots having equivalent street frontages, that property line the prolongation of which creates the front property line for the greatest number of interior lots in the same block shall be considered as the lot front line of such corner or reverse corner lot.

(2) “Lot perimeter line or perimeter lot line” means a lot line constituting the boundary of a planned unit development or townhouse development.

(3) “Lot rear line or rear lot line” means a lot line which is opposite and most distant from the lot front line. For the purpose of establishing the lot rear line or a triangular or trapezoidal lot, or of a lot the rear line of which is formed by two or more lines, the following shall apply:

(a) For a triangular or gore-shaped lot, a line 10 feet in length with the lot and farthest removed from the lot front line and at right angles to the line comprising the depth of such lot shall be used as the lot rear line;

(b) In the case of a trapezoidal lot, the rear line of which is not parallel to the front line, the lot rear line shall be deemed to be a line at right angles to the line comprising the depth of such lot and drawn through a point bisecting the recorded lot rear line;

(c) In the case of a pentagonal lot the rear boundary of which includes an angle formed by two lines, such angles shall be employed for determining the lot rear line in the same manner as prescribed for a triangular lot;

(d) In no case shall the application of the above be interpreted as permitting a main building to locate closer than five feet to any property line.

(4) “Lot side line or side lot line” means any lot boundary line not a lot front line or a lot rear line.

“Lot width” means the horizontal distance between the lot side lines measured at right angles to the line comprising the depth of the lot at a point midway between the lot front line and the lot rear line.

“Main building” means the principal building or other structure on a lot or building site designed or used to accommodate the primary use to which the premises are devoted. Where a permissible use involves more than one building or structure designed or used for the primary purpose, as in the case of group houses, each such permissible building or other structure on a lot or building site as defined by this Title shall be construed as comprising a main building or structure.

“Median sidewalk grade” means the average elevation of a sidewalk, abutting a commercial street, as designed by the City, along the public street line; except that for the west side of Marine View Drive South, median sidewalk grade shall be defined as the average elevation of the alley extending mid-block between 7th Avenue South and Marine View

Drive South. For properties lying between Marine View Drive South and 8th Avenue South, sidewalk grade shall be established at Marine View Drive grade elevations.

“Mental hospital” means an institution licensed by state agencies under the provisions of law to offer facilities, care and treatment for cases of mental and nervous disorders, and alcoholics. Establishments limiting services to juveniles below the age of five years, and establishments housing and caring for cases of cerebral palsy are not considered mental hospitals.

“Middle schools” means any institution of learning giving general academic instruction in the several branches of learning and study required by the education code of the state to be taught in the public and parochial schools.

“Mitigation” means the use of any combination or all of the following actions:

(1) Avoiding impacts to environmentally critical areas by not taking a certain action or parts of an action;

(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;

(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environmentally critical area;

(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the development proposal;

(5) Compensating for the impact by replacing or enhancing environmentally critical areas, or providing substitute resources; and

(6) Monitoring the impact and taking appropriate corrective measures.

“Mixed use” means one or more dwelling units and one or more enclosed commercial, business, or retail uses in a building in a Commercial or Residential Zone.

“Mobile home park” means any area or tract of land used or designed to accommodate two or more automobile house trailers.

“Moderate risk waste” means those wastes defined in WAC 173-303-040(55).

“Motel” means a group of attached or detached buildings containing individual sleeping units where a majority of such units open individually and directly to the outside, and where a garage is attached to or a parking space is conveniently located to each unit, all for the temporary use by automobile tourists or transients, and the word shall include tourist courts, motor courts, automobile courts, automobile camps, and motor lodges. A unit in a motel having kitchen facilities shall constitute a dwelling unit and shall be subject to all of the provisions and requirements of this Title governing dwelling units for the zone in which the establishment is located, but never less than the requirements of the heaviest multiple-dwelling zone.

“Multiple dwelling” means a building designed exclusively for occupancy by three or more families living independently of each other, and containing three or more dwelling units.

“Nonconforming building” means a building, or portion thereof, which was lawfully erected or altered and maintained but which, because of the application of this Title to it, no longer conforms to the regulations of the zone in which it is located as defined by this Title.

“Nonconforming use” means a use which was lawfully established and maintained but which, because of the application of this Title to it, no longer conforms to the use regulations of the zone in which it is located as defined by this Title.

“North American Industrial Classification System” (NAICS) means the current edition of the book North American Industrial Classification System as published online by the U.S. Office of Management and Budget.

“Nursing home” means facilities for patients who are recovering from an illness, or receiving care for chronic conditions, mental or physical disabilities, terminal illness, alcohol or drug inpatient treatment. Care may include inpatient administration of medicine, preparation of special diets, bedside nursing care, and treatment by a physician or psychiatrist.

“One-family dwelling” means a detached building designed exclusively for occupancy by one family and containing one dwelling unit.

“Party of record” means any person, group, association, or corporation that files an appeal, a person granted party status through intervention, the City department making the decision or determination, and the person who files an application for a land use action that is subject to appeal.

“Pigs, potbellied and miniature” means a type of swine commonly known as the North American, Vietnamese, Chinese, or Asian potbellied pig (Sus scrofa bittatus) that is no more than 22 inches in height at the shoulder and no more than 150 pounds in weight.

“Principal use” means the primary or predominant use to which the property is or may be devoted, and to which all other uses on the premises are accessory.

“Private boathouse” means an accessory building, or portion of building, which provides shelter and enclosure for a boat or boats owned and operated only by the occupants of the premises.

“Private parking area” means an open area, other than a street, alley, or other public property, limited to the parking of automobiles of occupants or employees of a dwelling, hotel, motel, apartment hotel, apartment house, boarding house, or lodging house to which these facilities are appurtenant.

“Private solid waste container” means a solid waste container that is either privately owned or privately used and maintained for the purpose of waste reduction or providing health and sanitation support for a private facility or organization.

“Professional offices” means offices maintained and used as a place of business conducted by persons engaged in the healing arts for human beings, such as doctors and dentists (but wherein no overnight care for patients is given), and by engineers, attorneys, realtors, architects, accountants, and other persons providing services utilizing training in and knowledge of the mental discipline as distinguished from training in occupations requiring mere skill or manual dexterity or the handling of commodities.

“Public hearing” means a hearing, conducted by either the Hearing Examiner or the City Council, that creates a record through testimony and the submission of evidence and information under procedures prescribed by law. An open record public hearing held prior to a decision on a proposed land use action is to be known as an “open record pre-decision hearing.” An open record hearing may be held on an appeal, to be known as an “open record appeal hearing,” if no open record pre-decision hearing has been held on the land use action.

“Public parking area” means an open area other than a street, alley, or private parking area as defined in this Title, whether privately or publicly owned, which area is used for the parking of more than four automobiles.

“Public solid waste container” means a solid waste container placed for the purpose of providing a receptacle for public use to prevent littering, promote health and sanitation of the general public, and/or promote waste reduction on publicly owned and operated facilities, properties, or rights-of-way, when such facilities or properties are generally open to the public and used for public purposes. Without limitation, such public facilities shall include schools, parks, marinas, public buildings, and the like, but shall not include public facilities that are not generally open to the public.

“Public trailer camp” means any area or tract of land used or designed to accommodate two or more automobile house trailers.

“Public utility” means a private business organization such as a public service corporation performing some public service and subject to special governmental regulations, or a governmental agency performing similar public services, the services by either of which are paid for directly by the recipients thereof. Such services shall include, but are not limited to, storm water management, water supply, electric power, gas, and transportation for persons and freight.

“Public utility distribution” means the method or mode by which a private business organization or governmental agency performing some public service, such as, but not limited to, water supply, electric power, gas, sewer, or transportation, delivers or spreads those services over an area and to individual customers.

“Public utility facilities” means a building, complex, or installation that facilitates an action or process associated with a public utility which can be a private business or governmental agency performing some public service, such as, but not limited to, storm water management, water supply, electric power, gas, sewer, or transportation.

“Rear line of the required front yard” means a line parallel to the lot front line and at a distance therefrom equal to the depth of the required front yard, and extending across the full width of the lot.

“Reclassification of property” means a change in zone boundaries upon the zoning map, which map is part of this Title when adopted in the manner prescribed by law.

“Religious organization” means the federally protected practice of a recognized religious assembly, school, or institution that owns or controls real property.

“Required open space” means a portion of the area of a lot or building site, other than required yards, which area is required by this Title, as set forth in the different zones contained in this Title, to be maintained between buildings, between wings of a building, and between buildings and any portion of a property boundary line not contiguous to a required front or side yard. Such open spaces, as in the case of required yards, are required to be free and clear of buildings and structures, but may contain storm water facilities.

“Residence” means a building or structure, or portion thereof, which is designed for and used to provide a place of abode for human beings, but not including hotels or motel units having no kitchens. The term “residence” includes the term “residential” as referring to the type of or intended use of a building or structure.

“Restoration” means the return of an environmentally critical area to a state in which its functions, values, and size approach or exceed its unaltered state as closely as possible.

“Retirement housing” means a building or complex of buildings, exclusively designed for and occupied by households having at least one person 62 years of age or older, which provides common facilities such as but not limited to dining and recreation. Some or all of the dwellings may contain kitchens.

“Reverse corner lot” means a corner lot the side street line of which is substantially a continuation of the lot front line of the lot upon which the rear of the corner lot abuts.

“Roof” means a structural covering over any portion of a building or structure, including the projections beyond the walls or supports of the building or structure. An openwork covering shall not be considered a roof if the upper horizontal surface area of the component solid portions thereof measured on the horizontal plane does not exceed 20 percent of the area of the covering.

“Sanitarium” means a health station or retreat or other place where resident patients are kept, and which specializes in giving clinical, temporary, and emergency services of a medical or surgical nature to human patients and licensed by state agencies under provisions of law to provide facilities and services in surgery, obstetrics, and general medical practice as distinguished from treatment of mental and nervous disorders and alcoholics, but not excluding surgical and postsurgical treatment of mental cases.

“School” means any institution of learning giving general academic instruction in the several branches of learning and study required by the education code of the state to be taught in the public and parochial schools.

“Shorelines of the state” means lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in chapter 90.58 RCW.

“Side street” means a street which is adjacent to a corner lot or reverse corner lot and which extends in the general direction of the line determining the depth of the corner or reverse corner lot.

“Side yard” means an open area measured from the lot side line toward the center of the lot and extending from the rear line of the required front yard, or from the lot front line if there is no required front yard, toward the lot rear line to a point measuring two-thirds of the depth of the lot, except that on the side street side of corner lots and reverse corner lots the required side yard shall extend to the rear line of the lot. The width of the side yard shall be measured horizontally from, and be parallel to, the lot side line from which it is measured.

“Slope” means an inclined ground surface, the inclination of which is expressed as a ratio (percentage) of vertical distance to horizontal distance by the following formula:

vertical distance

x

100

=

% slope

horizontal distance

 

 

 

 

Another method of measuring the inclination of the land surface is by measuring the angle, expressed in degrees, of the surface above a horizontal plane. The following chart shows the equivalents between these two methods of measurement for several slopes:

 

Percent Slope

Angle of Inclination

8.7

5.0°

15.0

8.5°

25.0

14.0°

30.0

16.7°

40.0

21.8°

50.0

26.6°

100.0

45.0°

“Small animal hospital or clinic” means an establishment in which veterinary medical services, clipping, bathing, and similar services are rendered to dogs, cats, and other small animals and domestic pets, but not including kennels.

“Solid waste container” means a garbage can, dumpster, or other receptacle used for disposal and/or storage of trash, rubbish, garbage, junk, scrap, debris, refuse, recycling, yard waste, and other discarded materials.

“Specified anatomical areas” means:

(1) Less than completely and opaquely covered human genitals, anus, pubic region, buttock, or female breast below a point immediately above the top of the areola; or

(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

“Specified sexual activities” means any of the following:

(1) Human genitals in a state of sexual stimulation or arousal;

(2) Acts of human masturbation, sexual intercourse, sodomy, oral copulation, or bestiality;

(3) Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts, whether clothed or unclothed, of oneself or of one person by another; or

(4) Excretory functions as part of or in connection with any of the activities set forth in this section.

“Stable” means a detached building in which horses or other beasts of burden owned by the occupants of the premises are kept, and in which no such animals are kept for hire, remuneration, or sale.

“Story” means that portion of a building included between the upper surface of any floor and the upper surface of the floor next above it, except that the topmost story shall be that portion of a building included between the upper surface of the topmost floor and the ceiling or roof above. If the finished floor level directly above a basement, cellar, or unused under floor space is more than six feet above grade, as defined above, or is more than 12 feet above grade at any point, such basement, cellar, or unused under floor space shall be considered a story.

“Street” means a public or recorded private thoroughfare which affords primary means of access to abutting property.

“Street line” means the boundary line between a street and the abutting property.

“Structural alterations” means any change in the supporting members of a building or structure, such as foundations, bearing walls, columns, beams, floor or roof joists, girders or rafters, or changes in the exterior dimensions of the building or structure, or increase in floor space.

“Structure” means anything constructed in the ground, or anything erected which requires location on the ground or water, or is attached to something having location on or in the ground, but not including fences less than six feet in height, or paved areas.

“Substance abuse facility” means a facility specializing in the treatment of drug and/or alcohol dependency, either outpatient or inpatient, licensed by the state to provide such services.

“Substantial change” means modification of the scope, use, or other attribute of a pending land use action that results in, or may result in, significant differences in the type or degree of impact(s), as determined by the Planning, Building and Public Works Director.

“Temporary homeless encampment” means a group of homeless persons temporarily residing out-of-doors on a site with services provided by a sponsor and supervised by a managing agency.

“Temporary homeless encampment managing agency” means an organization that has the capacity to organize and manage a temporary homeless encampment. A managing agency may be the same entity as the sponsor.

“Temporary homeless encampment sponsor” means an entity that has an agreement with the managing agency to provide basic services and support for the residents of a temporary homeless encampment and liaison with the surrounding community and joins with the managing agency in an application for a temporary use permit. A sponsor may be the same entity as the managing agency.

“Through lot” means a lot having frontage on two streets, including a lot at the intersection of two streets when the street sides of such lot form an internal angle of less than 45 degrees. Corner lots and reverse corner lots as defined in this section are not through lots.

“Townhouse development” means two or more lots approved through the subdivision or short subdivision process for townhouse dwellings.

“Townhouse dwelling” means one dwelling unit on an internal lot within a townhouse development designed exclusively for occupancy by one family. A townhouse dwelling is located at an internal lot line and attached to one or more other townhouse dwellings. The first floor of a townhouse dwelling is at or near ground level. A townhouse dwelling occupies the building area from ground level to the roof with no townhouse dwelling located above or below another townhouse dwelling.

“Trailer court” means any area or tract of land used or designed to accommodate two or more automobile house trailers.

“Trailer park” means any area or tract of land used or designed to accommodate two or more automobile house trailers.

“Transitional lot” means a residentially zoned lot a side line of which forms a common boundary with contiguous property zoned for either a higher density residential use or commercial or industrial uses.

“Transportation facilities of statewide significance” are essential public facilities as defined in RCW 47.06.140, to include the interstate highway system, interregional state principal arterials, intercity high-speed ground transportation, major passenger intermodal terminals, regional high-capacity transportation systems, and any improvements identified in the statewide multimodal plan.

“Unlisted uses” means uses which are not specifically named as permitted in any zone contained within this Title.

“Use” means the nature of the occupancy, the type of activity, or the character and form of improvements to which land is devoted or may be devoted.

“Variance” means an adjustment in the application of the specific regulations of this Title to a particular piece of property, which property, because of special circumstances applicable to it, is deprived of privileges commonly enjoyed by other properties in the same vicinity and zone and which adjustment remedies disparity in privileges.

“Vehicle” as used in this Title, means all instrumentalities capable of movement by means of circular wheels, skids, or runners of any kind, along roadways or paths or other ways of any kind, specifically including, but not limited to, all forms of automotive vehicles, buses, trucks, cars and vans, all forms of trailers or mobile homes of any size whether capable of supplying their own motive power or not, without regard to whether the primary purpose of which instrumentality is or is not the conveyance of persons or objects, and specifically including all such automobiles, buses, trucks, cars, vans, trailers, and mobile homes even though they may be at any time immobilized in any way and for any period of time of whatever duration.

“Yard” means an open space other than a court on a lot on which a building is situated, unoccupied and unobstructed from the ground upward unless specifically otherwise permitted in this Title.

Yard – Types and Measurements.

(1) “Front yard” means an area extending across the full width of the lot and lying between the lot front line and a line drawn parallel thereto, and at a distance therefrom equal to the required front yard depth as prescribed in each zone. Front yards shall be measured by a line at right angles to the lot front line, or by the radial line or radial line extended in the case of a curved lot front line.

(2) “Side yard” means an open area measured from the lot side line toward the center of the lot and extending from the rear line of the required front yard, or from the lot front line if there is no required front yard, toward the lot rear line to a point measuring two-thirds of the depth of the lot, except that on the side street side of corner lots and reverse corner lots the required side yard shall extend to the rear line of the lot. The width of the side yard shall be measured horizontally from, and be parallel to, the lot side line from which it is measured.

“Zone” means an area accurately defined as to boundaries and location on an official map and within which area only certain types of land uses are permitted, and within which other types of land uses are excluded, as set forth in this Title. [Ord. 1697 § 1, 2018; Ord. 1671 § 15, 2017; Ord. 1669 § 3, 2016; Ord. 1661 § 3, 2016; Ord. 1655 § 1, 2016; Ord. 1628 § 1, 2015; Ord. 1591 § 5, 2014.]

18.01.060 Liability.

It is the specific intent of this Title and procedures adopted under this Title to place the obligation of complying with the requirements of this chapter upon the permittee, and no provision is intended to impose any duty upon the City, or any of its officers, employees, or agents. Nothing contained in this Title is intended to be or shall be construed to create or form the basis for liability on the part of the City, or its officers, employees, or agents, for any injury or damage resulting from the failure of the permittee to comply with the provisions of this Title, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this Title or any procedures adopted under this Title by the City, its officers, employees, or agents. [Ord. 1591 § 6, 2014.]

18.01.070 Enforcement.

It shall be the duty of the City Manager or the City Manager’s designee to enforce all provisions of this Title; provided, however, the City Manager or the City Manager’s designee is authorized to delegate such authority by written administrative order. [Ord. 1591 § 7, 2014.]

18.01.080 Unauthorized use of structures or land prohibited.

It shall be a violation of the City Zoning Code (hereinafter “code”) for any person to use or cause to be used any structure or land in a manner not specifically authorized by the code. [Ord. 1591 § 8, 2014.]

18.01.090 Enforcement – Violation – Penalty.

(1) Violation. No person shall violate or fail to comply with the provisions of this Title.

(2) Civil Infraction. A violation or a failure to comply with the provisions of this Title is a civil infraction and a violator may be penalized as is more specifically set forth in chapter 1.24 DMMC, Civil Infractions.

(3) Civil Violation and Penalty. A violation or a failure to comply with the provisions of this Title is further a civil violation and may be penalized and or abated as is set forth in chapter 1.28 DMMC, Civil Violations and Penalties.

(4) Criminal Penalty. In addition to or as an alternative to any other penalty provided in this Title or by law, a person convicted of a violation of this Title is guilty of a gross misdemeanor. Upon conviction, a person may also be ordered to abate, discontinue or correct a violation of this Title.

(5) Superior Court – Civil Action. In addition to or an alternative to any other penalty provided in this Title or by law, a violation or a failure to comply with the provisions of this Title may be enforced by a civil action filed in King County Superior Court in any manner allowed by law.

(6) Violation of This Title – Enforcement by Civil Penalty. In addition to or as an alternative to any other penalty provided in this Title or by law, a violation or a failure to comply with the provisions of this Title may be enforced as is set forth in DMMC 18.01.100 through 18.01.120. [Ord. 1591 § 9, 2014.]

18.01.100 Enforcement by civil penalty – Appeal.

(1) Based on a citizen complaint or at the direction of the City Manager or the City Manager’s designee or the City Council, the Planning, Building and Public Works Director shall investigate any structure or use that is apparently in violation of this Title, and if it is determined that a violation exists, the Planning, Building and Public Works Director shall have a notice of violation served upon the owner, tenant, or other person responsible for the condition.

(2) The notice shall be served by personal service, registered mail, or certified mail with return receipt requested addressed to the last known address of the owner, tenant, or other person responsible.

The notice of violation shall be posted at a conspicuous place on the property. The notice shall state separately each violation, contain a reasonable time for compliance, describe the civil penalties for failure to comply, and the appeal procedures.

(3) When calculating a reasonable time for compliance, the Planning, Building and Public Works Director shall take into consideration the following criteria:

(a) Type and degree of violation;

(b) Intent to comply if intent has been expressed;

(c) Procedural requirements for obtaining a permit to carry out corrective action;

(d) Complexity of corrective action;

(e) Any other circumstances beyond the control of the responsible party.

(4) The Planning, Building and Public Works Director may extend the date of compliance upon the receipt of a written request from the responsible person prior to the date of compliance.

(5) Any person affected by a notice of violation may file a written appeal stating in what respects the decision of the Planning, Building and Public Works Director is erroneous and the specific grounds for reversal or modification of the order. The appeal with the required filing fee shall be filed with the City Clerk prior to 4:30 p.m. on the compliance date. In the absence of a timely appeal, the findings of the Planning, Building and Public Works Director contained in the notice of violation shall be deemed true and final.

(6) Jurisdiction is granted to the Hearing Examiner to hear and determine such appeals in accordance with the Hearing Examiner code. The Hearing Examiner may affirm, reverse, or modify the decision of the Planning, Building and Public Works Director; provided, that the standard of review specified by DMMC 18.20.230 shall apply.

(7) In addition to any other sanction or remedial procedure that may be available, any person failing to comply with a final order of the Planning, Building and Public Works Director, or, in the event of an appeal, the Hearing Examiner or City Council, shall be subject to a cumulative penalty or forfeiture in the amount of $25.00 per day for each violation from the date set for compliance in the final order until the order is complied with; provided, however, the rate of daily penalty shall double every six months, with a maximum daily penalty of $200.00 per day for Single-Family Residential and Suburban Estate Zones, $300.00 per day for Commercial Zones, and $500.00 per day for multiple Residential Zones, except that owners of a single condominium unit shall be subject to a maximum daily penalty of $200.00; and provided further, that the maximum cumulative penalty shall not exceed the greater of $10,000 or the then fair-market value of the property on the date the violation or violations are perceived to exist; and finally provided, that the property owner shall be allowed to claim a 90-day grace period from such daily penalties once in any five-year period. Jurisdiction is granted to the Des Moines Municipal Court to hear and determine applications for judgment, and following entry of judgment, if any, the City shall pursue collection thereof in any manner otherwise available for the collection of judgments. [Ord. 1591 § 10, 2014.]

18.01.110 Enforcement by criminal penalties.

(1) At the conclusion of steps (1) through (7) in DMMC 18.01.100, if the City Manager or the City Manager’s designee believes civil penalties are inadequate, he may direct the City Attorney to initiate criminal proceedings.

(2) A violation of the provisions of DMMC 18.01.100 is a criminal offense. [Ord. 1591 § 11, 2014.]

18.01.120 Enforcement by Superior Court civil action.

The City Manager or the City Manager’s designee, with the consent of the City Council, may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the code when civil or criminal penalties are inadequate to effect compliance. [Ord. 1591 § 12, 2014.]

18.01.130 Severability.

The provisions of this Title are severable. If any section, sentence, clause or phrase of this code is adjudged by a court of competent jurisdiction to be invalid, the decision shall not affect the validity of the remaining portions of the code. [Ord. 1591 § 13, 2014.]

18.01.140 Appeal.

Appeals of decisions made pursuant to this Title shall be as set forth in the applicable chapter and pursuant to chapter 18.20 DMMC. [Ord. 1591 § 14, 2014.]