Chapter 19.41
ADMINISTRATION

Sections:

19.41.002    Review process user guide.

19.41.004    Applications.

19.41.006    Compliance with SEPA and other laws.

19.41.008    Zoning map changes.

19.41.010    User guide.

19.41.020    General.

19.41.030    Enforcement, violation and penalties.

19.41.040    Promulgation of rules, procedures and interpretations.

19.41.050    Building permits and sign permits—Compliance with this title required.

19.41.060    Business license applications.

19.41.070    Use permit.

19.41.080    Home occupations.

19.41.090    Temporary use.

19.41.100    Outdoor use, activity and storage.

19.41.130    Variances.

19.41.140    Repealed.

19.41.150    Special property uses.

19.41.160    Rezones.

19.41.165    Performance agreement rezones.

19.41.170    Zoning code—Amendments to the text.

19.41.180    Appeals.

19.41.002 Review process user guide.

Various places in this title require a particular review process for a specific use, development or activity. Title 15, Local Project Review Procedures, describes how each review process works. If you are interested in obtaining approval of a use which requires a specific review process, or you would like to participate in the review process of a particular use, where public participation is allowed, you should read Title 15, Local Project Review Procedures, for a description of the required review process. (Ord. 2531-01 § 19, 2001.)

19.41.004 Applications.

Application forms for development regulated by this title shall be submitted and processed as provided for by Title 15, Local Project Review Procedures. (Ord. 2531-01 § 20, 2001.)

19.41.006 Compliance with SEPA and other laws.

The State Environmental Policy Act (SEPA) applies to many of the decisions that will be made using this title. Each application shall be evaluated and, where applicable, comply with SEPA, with state regulations, federal regulations and city regulations and ordinances. The minimum requirements set forth in the zoning code may be increased based upon the SEPA review process or requirements contained in other city regulations.

Project permit applications must be processed in accordance with Chapter 36.70B RCW, Local Project Review, which is implemented by Title 15, Local Project Review Procedures. Each project permit application will be processed in accordance with the permit application classification (type of land use application) and the procedures for processing permits established in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 21, 2001.)

19.41.008 Zoning map changes.

City council adoption of a zoning map change upon completion of a performance agreement rezone shall be in full compliance with the appropriate review process for a resolution of intent to rezone as provided in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 22, 2001.)

19.41.010 User guide.

The regulations contained in this title are administered through various types of permits and approvals. This chapter together with Title 15, Local Project Review Procedures, describes the types of permits, tells who is responsible for processing the permits, and refers to the appropriate review process by which the permit shall be reviewed. The actual procedures required under each review process are described in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 1, 2001: Ord. 1671-89 (part), 1989.)

19.41.020 General.

A.    Responsibility of Administration. The zoning code is administered by the planning department, under the direction of the planning director.

B.    Permits and Approvals. Various sections in this title require certain permits or approvals. This chapter together with Title 15, Local Project Review Procedures, describes the types of permits and approvals required by this title.

C.    Application Constitutes Permission for Entry. Application for any permit, approval or appeal constitutes permission for representatives of the city to enter on the property involved in order to make necessary inspections. Inspections shall be made in accordance with Section 19.41.030(D). (Ord. 2531-01 § 2, 2001: Ord. 1671-89 (part), 1989.)

19.41.030 Enforcement, violation and penalties.

A.    Enforcement. Enforcement of the provisions of this title and of any permits or approvals issued pursuant thereto shall be performed in accordance with the procedures established in this title and Chapter 1.20.

B.    Violation. No person, firm, association, corporation or any agent thereof shall violate or fail to comply with any provisions of this title nor use any property, erect any structure, occupy or use any structure or place any improvement on any property in violation of any provision of this title. Each such person, firm, association, corporation or agent thereof shall be deemed guilty of a separate offense for each and every day during which any violation of any provision of this title is committed, continued or permitted.

C.    Penalties. Any violation or failure to comply with the provisions of this title shall be subject to the provisions of the enforcement procedures as set forth in Chapter 1.20. Further, any building or structure set up, erected, built, used, moved or maintained or any use of property contrary to the provisions of this title, shall be and the same is declared to be a public nuisance. The city administration, upon concurrence of the city attorney, may file for injunctive or other forms of civil relief in superior court. The penalty and enforcement provisions provided in this title shall not be exclusive, and the city may pursue any remedy or relief it deems appropriate.

D.    Right of Entry. Whenever necessary to make an inspection to enforce any of the provisions of this title, or whenever the code compliance officer has reasonable cause to believe that there exists in any building or upon any property any condition which makes such building or property to be in violation of this title, the code compliance officer may enter such building or property at all reasonable times to inspect the same or to perform any duty imposed upon the code compliance officer by this title; provided, that if such building or property be occupied, he/she shall first present proper credentials and demand entry; and if such building or property be unoccupied, he/she shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or property and demand entry. If such entry is refused, code compliance officer shall have recourse to every remedy provided by the law to secure entry. If the owner or occupant denies entry, the code compliance officer shall obtain a proper inspection warrant or other remedy provided by law to secure entry. No owner or occupant or other person having charge, care or control of any building or property shall fail or neglect, after proper request is made as provided in this chapter, to promptly permit entry therein by the code compliance officer for the purpose of inspection and examination pursuant to this title. (Ord. 2531-01 § 3, 2001: Ord. 1671-89 (part), 1989.)

19.41.040 Promulgation of rules, procedures and interpretations.

The planning director is authorized to promulgate administrative rules, procedures and interpretations consistent with the terms of this title. Appeals of any such rule, procedure, interpretation or other administrative determination made by the planning director shall be made in accordance with the appeal procedures as set forth in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 4, 2001: Ord. 1671-89 (part), 1989.)

19.41.050 Building permits and sign permits—Compliance with this title required.

A.    Unless otherwise exempted by city building regulations, no person, firm or corporation shall erect, construct, enlarge, expand, alter, repair, move, remove, convert or demolish, equip, use, occupy, or maintain any building or structure (including signs) or cause or permit the same to be done without obtaining a building permit or sign permit.

B.    All building and sign permit applications submitted to the building official shall be reviewed by the planning department for compliance with this title using the review process described in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 5, 2001: Ord. 1729-90 § 29, 1990; Ord. 1671-89 (part), 1989.)

19.41.060 Business license applications.

All applications for business license which are submitted to the city clerk shall be reviewed by the planning department using the review process described in Title 15, Local Project Review Procedures, to determine whether the proposed business meets the requirements of this title and the specific requirements of the zone in which the business is proposed to be located. (Ord. 2531-01 § 6, 2001: Ord. 1671-89 (part), 1989.)

19.41.070 Use permit.

The occupancy of any structure constructed for one type of use which is changed to another use which requires different zoning code or building code standards shall not be approved until a use permit has been issued by the planning department. The new use shall be reviewed by the planning department to ensure that all zoning code requirements which apply to the new use are met. The building official shall review the new use for compliance with the city’s building regulations. If the proposed use is required to be reviewed through a higher level of review process as set forth in Title 15, Local Project Review Procedures, consideration of the use permit shall be included as part of such review process. (Ord. 2531-01 § 7, 2001: Ord. 1849-92 § 62, 1992; Ord. 1671-89 (part), 1989.)

19.41.080 Home occupations.

A.    Home occupations may be permitted in any residential zone provided such home occupations comply with the requirements of the zone in which the property is located and the following requirements:

1.    Home occupations shall not occupy more than twenty-five percent of the total floor area of the residence, or six hundred square feet, whichever is less. Home occupations carried on within a dwelling shall be provided access to the work space through the dwelling only, with no direct access to the outside;

2.    The occupation shall be carried on entirely within a residence or accessory building by the occupant thereof;

3.    The home occupation may be located in the principal dwelling or in the accessory structure. If located in an accessory structure, the following regulations shall apply:

a.    The area devoted to the occupation, as described in subsection (A)(1) of this section, shall be based upon the floor area of the dwelling only, and

b.    Access to the work space may be directly from the outside;

4.    No noise, dust, smoke, light, glare or odor shall be emitted other than is commonly associated with a residential use;

5.    The occupation shall be conducted in such a manner as to give no outward appearance of a business nor manifest any characteristics of a business;

6.    Occupations which shall be prohibited as home occupations include, but are not limited to:

a.    Veterinarians,

b.    Clinics,

c.    Auto repair,

d.    Auto sale,

e.    Barber/beauty shops,

f.    Real estate offices,

g.    Offices with client visits,

h.    Retail sales,

i.    Any use of a nature which is similar to those listed in this chapter or which creates impacts on surrounding properties which are similar to those created by the uses listed herein;

7.    There shall be no person other than a resident of the dwelling employed on the premises;

8.    If the occupation is the type in which classes are held or instruction is given, there shall be not more than five students allowed in any one class or instruction period. Classes shall not exceed a total of twenty hours in any week;

9.    No stock in trade shall be sold or displayed on the premises, and no equipment or materials shall be stored on any outdoor portion of the premises;

10.    Parking of student or client vehicles shall not create any hazard or congestion;

11.    No receipt or delivery of products shall be permitted except as is commonly anticipated in residential areas. Commercial vehicle deliveries shall not exceed two per week. The gross vehicle weight of delivery vehicles shall not exceed eighteen thousand pounds;

12.    No signs shall be allowed for home occupations; and

13.    Home occupations shall comply with all other local, state and federal regulations pertinent to the activity pursued, and the requirements of or permission granted by this section shall not be construed as an exemption from such regulations.

B.    A home occupation permit issued to one person shall not be transferable to any other person; nor shall a home occupation permit be valid at any address other than the one listed on the permit.

C.    Any person engaging in a home occupation shall register as a business with the city treasurer’s office and shall be subject to the city business and occupations tax.

D.    Garage sales shall not be considered to be a home occupation.

E.    Home occupations shall be reviewed using the review process described in Title 15, Local Project Review Procedures. (Ord. 2531-01 § 8, 2001: Ord. 1671-89 (part), 1989.)

19.41.090 Temporary use.

A.    User Guide. This section establishes a mechanism whereby the city may, on a short term basis, permit a use to be conducted that would not otherwise be allowed in the zone in which it is located. This section is intended to permit certain inherently temporary uses, such as community festivals and fresh vegetable stands, that would not be allowed in the zone in which they are proposed, but which, if limited in time and strictly controlled, may be in the best interest of the Everett community.

B.    Process for Deciding Upon a Proposed Temporary Use. The city will use the review process as described in EMC Title 15, Local Project Review Procedures, to review and decide upon an application for a temporary use permit.

C.    Application Information. The applicant shall provide the following information to the planning department:

1.    A completed application on the form provided by the planning department, along with all information requested in that form;

2.    An irrevocable, signed and notarized statement granting the city permission to summarily abate the temporary use and all physical evidence of that use if it is not removed by the applicant within the period specified as part of the permit, and agreeing to reimburse the city for any expenses incurred by the city in abating the temporary use; and

3.    Written permission from the owner of the property upon which the temporary use is proposed to be located authorizing the proponent to use the subject property for the stated purposes and time period.

D.    Criteria for Granting a Temporary Use Permit. The city may grant a temporary use permit only if it finds that:

1.    The proposed temporary use will not be materially detrimental to the public welfare, or injurious to the property or improvements in the immediate vicinity; and

2.    The proposed temporary use is compatible in terms of location, access, traffic, noise, nuisance, dust control and hours of operation with existing land uses in the immediate vicinity; and

3.    The proposed temporary use is not otherwise allowable in the zone in which it is proposed.

E.    Dimensional Requirements and Development and Performance Standards. The city shall establish dimensional requirements and development and performance standards as part of the approval of each temporary use permit. The city will use the nature of the proposed use and character of the surrounding area as guides in establishing these requirements and standards.

F.    Frequency and Duration of Temporary Use. The city may not grant a temporary use permit to the same user for the same use more frequently than once in every three-hundred-sixty-five-day period. The city may only grant a temporary use permit for a specified period of time, not to exceed sixty days except as otherwise provided in this section. The temporary use permit shall specify a date by which the use shall be terminated.

G.    Removal of a Temporary Use. The city shall designate, as part of the temporary use permit, a period following the expiration of the permit within which the temporary use must be terminated and all physical evidence of the use must be removed by the applicant. If the temporary use and all physical evidence of the use are not removed within the time specified, it will constitute a violation of this title. Further, the city is authorized to abate the temporary use in accordance with subsection (C)(2) of this section.

H.    Exception to Permit Requirement. The following temporary uses, when located in commercial and industrial zones for not longer than the time periods specified below, are exempt from the permit requirements of this section:

1.    Not to exceed forty-five days:

a.    Christmas tree lots,

b.    Fireworks stands;

2.    Not to exceed ten consecutive days:

a.    Amusement rides,

b.    Carnivals and circuses,

c.    Parking lot sales which are ancillary to the indoor sale of the same goods and services.

I.    Prohibited on Public Right-of-Way. Temporary use permits shall not be issued for property which is within a public right-of-way.

J.    Homeless Encampments. Homeless encampments shall be permitted as a temporary use subject to all of the requirements of this section.

1.    Applicability. This section shall not apply to “emergency or disaster” situations as defined by RCW 35.82.010(6)(a); provided, however, that the inability of a sponsor or managing agency to locate a site shall not be deemed to constitute an emergency or disaster.

2.    Standards for Homeless Encampments.

a.    Prior to or upon filing their application for temporary use permit, the managing agency and sponsor shall prepare an encampment management responsibility plan, which shall be included with their permit application.

b.    The encampment shall be located a minimum of forty feet from the property line of abutting properties containing residential uses; any tent, canopy or membrane structure, as defined in Chapter 19.24 of the International Fire Code, must be located at least twenty feet away from any building, parked vehicle, internal combustion engines or other tent, canopy or membrane structure.

c.    The encampment shall be located a minimum of forty feet from the property line of abutting properties in commercial or industrial zones, unless the planning director determines that there is sufficient vegetation, topographic variation, or other site conditions that would justify a lesser setback.

d.    Sight-obscuring fencing is required around the perimeter of the homeless encampment unless the planning director determines that there is sufficient vegetation, topographic variation, or other site condition such that fencing would not be needed.

e.    Exterior lighting must be directed downward and contained within the homeless encampment.

f.    The maximum number of residents within a homeless encampment is one hundred.

g.    Parking for five vehicles shall be provided.

h.    A transportation plan is required which shall include provision for transit services.

i.    The homeless encampment shall be located within one-half mile of transit service.

j.    No children under eighteen are allowed in the homeless encampment. If a child under the age of eighteen attempts to stay at the homeless encampment, the managing agency shall immediately contact Child Protective Services.

k.    A code of conduct is required to be enforced by the managing agency. The code shall contain the following as a minimum:

(1)    No drugs or alcohol are permitted.

(2)    No weapons are permitted.

(3)    No violence is permitted.

(4)    No open flames are permitted.

(5)    No trespassing into private property in the host neighborhood is permitted.

(6)    No loitering in the host neighborhood is permitted.

(7)    Disturbing neighbors is not permitted.

(8)    No verbal abuse, intimidating remarks, yelling or degrading remarks against member(s) of the host or host neighborhood are permitted.

(9)    No verbal abuse, intimidating remarks, yelling or degrading remarks between members of the homeless encampment or managing agency are permitted.

(10)    No littering on the encampment site or in the host neighborhood is permitted; a weekly trash patrol in the host neighborhood shall be required.

(11)    Quiet hours shall be observed daily from nine p.m. to seven a.m.

l.    The managing agency and homeless encampment residents shall ensure compliance with Washington State statutes and the Everett Municipal Code concerning, but not limited to, drinking water connections, solid waste disposal, human waste, electrical systems, and fire-resistant materials.

m.    All homeless encampment residents must sign an agreement to abide by the code of conduct and acknowledge that failure to do so shall result in the noncompliant resident’s immediate and permanent expulsion from the homeless encampment by the managing agency.

n.    The managing agency shall appoint a member to serve as a point of contact for the Everett police department. At least one member must be on duty at all times. The names of the on-duty members shall be posted daily.

o.    The managing agency shall permit inspections of the homeless encampment by the Snohomish health district without prior notice, and implement all directives of the health district within the time period specified by the health district.

p.    The managing agency shall permit access, without prior notice, to the homeless encampment site at all times for the Everett police department and Snohomish County sheriff.

q.    The managing agency shall take all reasonable and legal steps to obtain verifiable identification from prospective encampment residents and use the identification to obtain sex offender and warrant checks from the appropriate agency. The managing agency will not be conducting the sex offender and warrant checks but will submit to the appropriate agency the verified identification information obtained through such steps. All of the Everett police department’s requirements with respect to identified sex offenders or prospective residents with warrants shall be met.

r.    The managing agency shall immediately contact the Everett police department if someone is rejected or ejected from the homeless encampment where the reason for rejection or ejection is an active warrant or a match on a sex offender check, or if, in the opinion of the on-duty member or on-duty security staff, the rejected/ejected person is a potential threat to the community.

s.    The managing agency shall permit inspections of the homeless encampment by the city’s code compliance officers, building inspector, permit services manager, fire marshal or their designee without prior notice. The managing agency shall implement all directives resulting from such inspections within forty-eight hours of notice.

t.    Consistent with the Everett building code, the managing agency may not allow in the encampment, without first obtaining a building permit, any structure, other than tents, canopies or other membrane structures, that is greater than one hundred twenty square feet or provides shelter for more than nine persons.

u.    The managing agency and homeless encampment residents shall cooperate with other providers of shelters and services for homeless persons within the city and shall make inquiry with these providers regarding the availability of existing resources.

3.    Frequency and Duration of Temporary Use. The city may not grant a temporary use permit to the same sponsor or managing agency for the same use more frequently than once in every three-hundred-sixty-five-day period. Homeless encampments may be approved for a period not to exceed ninety days for every three-hundred-sixty-five-day period. The temporary use permit shall specify a date by which the use shall be terminated.

4.    Notice Requirements, Review Process and Appeal Procedure for Homeless Encampment Applications.

a.    Notice Requirements for Homeless Encampments.

(1)    Public Meeting. A minimum of forty-five calendar days prior to the anticipated start of the encampment, the sponsor and/or managing agency shall submit an application for a temporary use permit to the planning department and shall participate in a public information meeting organized by the city. The city shall provide mailed notice of the public informational meeting at least ten calendar days before the meeting to the following: (a) owners of property within five hundred feet of the subject property; (b) office of neighborhoods; and (c) any neighborhood organization in the vicinity of the homeless encampment site whose contact information is known to or made known to the managing agency. The sponsor and/or managing agency shall provide to the city the names and addresses of all owners of property within five hundred feet of the subject property. The purpose of the meeting is to provide the surrounding community with information regarding the proposed duration and operation of the homeless encampment, conditions that will likely be placed on the operation of the homeless encampment, requirements of the written code of conduct, and to answer questions regarding the homeless encampment.

(2)    Notice of Application for Homeless Encampment.

(a)    A notice of application and copy of the application for homeless encampment shall be provided prior to the decision regarding the issuance of the permit. The purpose of the notice is to inform the surrounding community of the application. Due to the administrative and temporary nature of the permit, there is no comment period. The notice shall contain, at a minimum, the date of application, project location, proposed duration and operation of the homeless encampment, number of residents for the encampment, conditions that will likely be placed on the operation of the homeless encampment, and requirements of the written code of conduct.

(b)    The completed application shall contain at a minimum contact information for the applicant and detailed information regarding how the applicant will meet the requirements of the temporary use permit and the requirements of the International Fire Code. The managing agency of any encampment that includes a tent or membrane structure in excess of two hundred square feet, and canopies in excess of four hundred square feet, as defined by the International Fire Code, shall also obtain a permit and approval for the tent, canopy or membrane structure from the fire marshal. The form of the notice and the application shall be provided by the planning department upon request by the sponsor and/or managing agency. The planning department shall distribute this notice as follows:

(i)    A copy of the notice and application, or summary thereof, will be published in the official newspaper of the city at least ten calendar days prior to the decision regarding the issuance of the permit.

(ii)    A copy of the notice and application, or summary thereof, will be mailed to:

(A)    Owners of all property within five hundred feet of any boundary of the subject property;

(B)    Office of neighborhoods; and

(C)    Any neighborhood organization in the vicinity of the homeless encampment site whose contact information is known to or made known to the managing agency, at least ten calendar days prior to the decision regarding the issuance of the permit.

(3)    Review Process, Notice of Decision Regarding Issuance of Permit, and Appeal Procedure. After review of the application for homeless encampment, the planning director shall make a decision regarding the issuance of a temporary use permit. A notice of such decision stating whether the permit is granted or denied, along with information regarding the procedure for appeal of the decision, shall be mailed as required for the notice of application within three business days after the decision. The information regarding the procedure for appeal shall state at a minimum as follows:

(a)    The deadline for filing a notice of appeal of the planning director’s decision is fifteen calendar days from the date the decision is mailed; and

(b)    The notice of appeal of the planning director’s decision shall be filed with the city clerk.

(c)    The planning director’s decision may be appealed to the city’s hearing examiner, who has jurisdiction to hear this matter and who will issue the final decision of the city after a public hearing. The notice of the time and place of the public hearing shall be provided to the applicant and to any person who, prior to the rendering of the decision on the permit, made a written request for notice or submitted substantial comments on the application for the permit.

(d)    The public hearing procedures shall be as specified in Section 15.24.400. The hearing examiner shall issue findings within ten business days of the conclusion of the hearing. Within three business days of rendering the written decision, copies shall be mailed to the applicant and all who have requested notice by signing a register provided at the hearing. The hearing examiner’s decision shall constitute the city’s final decision. Any appeal of the city’s final decision may only be made to Snohomish County superior court in accordance with Chapter 36.70 RCW. The burden of proof on appeal shall be on the appellant.

5.    Additional Requirements for Applications Requesting Modification of Standards for Homeless Encampments.

a.    The applicant may apply for a temporary use permit that applies standards that differ from those in subsection (J)(2) of this section only where, in addition to satisfying the requirements in subsection A of this section, the applicant submits a description of the standard to be modified and demonstrates how the modification would result in a safe homeless encampment under the specific circumstances of the application. Such requests shall be reviewed by the city’s hearing examiner at a public hearing. The hearing examiner shall make a decision regarding the issuance of a temporary use permit and modification of standards. The notice of the time and place of the public hearing shall be provided to the applicant and to any person who, prior to the rendering of the decision on the permit, made a written request for notice or submitted substantial comments on the application for the permit. The public hearing procedures shall be as specified in Section 15.24.400.

b.    The hearing examiner shall issue findings within ten business days of the conclusion of the hearing. Within three business days of rendering the written decision, copies shall be mailed to the applicant and all who have requested notice by signing a register provided at the hearing. The hearing examiner’s decision shall constitute the city’s final decision. Any appeal of the city’s final decision may only be made to Snohomish County superior court in accordance with Chapter 36.70 RCW.

c.    In considering whether the modification should be granted, the city shall first consider the effects on the health and safety of residents and the community. The burden of proof shall be on applicant. (Ord. 2994-07 § 2, 2007: Ord. 2531-01 § 9, 2001: Ord. 1671-89 (part), 1989.)

19.41.100 Outdoor use, activity and storage.

A.    Residential Zones. Uses and activities normally associated with a residential use are allowed in a residential zone. The outdoor storage of fire wood may not be located within front setback areas but may be located in other required setback areas.

B.    Commercial and Industrial Zones.

1.    General. Subject to the requirements of subsections (B)(2) through (B)(6) of this section, the uses and activities that are allowable on a site in commercial and industrial zones may be conducted out of doors unless individual zones of this title limit outside activity for a particular use in a particular zone. Where there is a conflict in requirements in this chapter and elsewhere in this title, the more restrictive requirements shall apply.

2.    Site Plan. The applicant shall submit a site plan for approval by the planning department. The site plan shall be accompanied by an application form provided by the planning department and shall include all information requested on the application form.

3.    Specific Use and Development Requirements. The city will review an application for outdoor use, activity and storage using the appropriate review process for the principal use. If the principal use is established, the review process described in Title 15, Local Project Review Procedures, shall be used. The review authority will make a decision based upon the following standards:

a.    All outdoor use, activity and storage areas must comply with setback requirements for the primary use.

b.    A solid sight-obscuring fence or other appropriate screening approved by the planning department is required around the outside edges of the area devoted to the outdoor use, activity or storage. The height of outdoor storage abutting public streets or residential zones shall not be higher than the height of the screen device approved by the planning department.

c.    Except in the M-1, M-M and B-2(B) zones, outdoor use, activity or storage areas located adjacent to property in the same zone may be located in the required interior side and rear setback yards. All outdoor use, activity and storage areas located adjacent to residential zones must meet required setbacks for the primary use.

d.    When gross floor area or lot coverage requirements are applicable, an outdoor use, activity or storage area will be used in calculating the permitted gross floor area or lot coverage of a use or development if this area will be used as an outdoor use, activity or storage area for at least two months in every year.

e.    If located on an unimproved area of the site, the underlying ground must be improved as required by the department of public works.

4.    Exceptions to Outdoor Use, Activity or Storage. The following outdoor uses and activities when located in commercial and industrial zones, are exempt from the requirement of this subsection as stated below:

a.    Exceptions to subsections (B)(3)(a) through (B)(3)(d) of this section, provided that a temporary certificate of occupancy from the building department is obtained:

(1)    Outdoor Christmas tree lots and fireworks stands if these uses will not exceed forty-five days.

(2)    Outdoor amusement rides; carnivals and circuses; and parking lot sales which are ancillary to the indoor sale of the same goods and services if these uses will not exceed ten days.

b.    Exception to subsections (B)(3)(a) and (B)(3)(b) of this section:

(1)    Outdoor dining areas, where permitted.

(2)    Outdoor display of vehicles for sale or lease provided that they meet all of the standards of Section 19.35.080 of this title.

5.    Modification. The applicant may request a modification of the requirements of subsections (B)(2) through (B)(4) of this section by submitting a written request with their site plan to the planning director for review. The planning director may approve a modification using the review process as described in Title 15, Local Project Review Procedures, if:

a.    The modification will not create a greater impact on any nearby residential use than would be created without the modification; and

b.    The modification will not detract from the character of nearby uses; and

c.    The modification will not be injurious to public health, safety or welfare; and

d.    The modification is consistent with the policies of the Everett general plan; and

e.    Landscaping or other means of screening is provided to reduce the visual impact of the outdoor use, activity or storage areas on surrounding properties and public right-of-way.

6.    Appeals of Outdoor Use, Activity and Storage Modification Requests. The planning director’s determination may be appealed as provided for in Title 15, Local Project Review Procedures, for the applicable review process. (Ord. 2531-01 § 10, 2001: Ord. 1671-89 (part), 1989.)

19.41.130 Variances.

A.    User Guide. This section establishes a mechanism whereby the provisions of this title can be varied on a case-by-case basis if the application of such provisions would result in an unreasonable and unusual hardship. The criteria of this section shall be met in order to approve a variance. Certain standards of this title may also be varied, under limited circumstances, in accordance with the provisions of the city’s binding site plan ordinance.

B.    Review Authority. The city will decide upon an application for a variance using the appropriate review process as set forth in Title 15, Local Project Review Procedures.

C.    Criteria for Granting a Variance. The city may grant a variance only if it finds that:

1.    The variance will not be materially detrimental to the property in the area of the subject property or to the city as a whole; and

2.    The variance is necessary because of exceptional or extraordinary circumstances regarding the size, shape, topography or location of the subject property; or the location of a preexisting improvement on the subject property that conformed to the zoning code in effect when the improvement was constructed; and

3.    The variance will only grant the subject property the same general rights enjoyed by other property in the same area and zone as the subject property; and

4.    The variance is the minimum necessary to allow the subject property the general rights described in subsection (C)(3) of this section;

5.    The granting of the variance is not inconsistent with the goals and policies of the Everett general plan;

6.    The need for the requested variance is not the result of a self-created hardship.

D.    Variances Prohibited. Under no circumstances shall the review authority grant a variance to any of the following:

1.    To any provisions establishing the uses or buildings that are permitted to locate or that may continue to operate in any zone; or

2.    To any of the procedural provisions of the code; or

3.    To any provision that specifically states that its requirements are not subject to variance; or

4.    To minimum lot size or maximum residential density requirements.

E.    Variance Applications. Variance applications shall be reviewed and processed as specified in Title 15, Local Project Review Procedures.

F.    Stay of Proceedings. If a request for a variance is made in an effort to remedy a violation of this title for which enforcement action has been commenced, the variance request stays all proceedings on the enforcement action until the variance has been acted upon. If, in the opinion of the mayor, a stay of proceedings would cause imminent peril to life or property, the mayor may continue enforcement action and such enforcement action may not be stayed except by a restraining order issued by superior court. If a variance request has been filed, enforcement shall be taken only to the extent that there shall no longer be imminent peril to life or property. (Ord. 2531-01 § 13, 2001: Ord. 1671-89 (part), 1989.)

19.41.140 Board of adjustment created.

Repealed by Ord. 2993-07. (Ord. 2531-01 § 14, 2001: Ord. 2051-95 § 1, 1995: Ord. 1671-89 (part), 1989.)

19.41.150 Special property uses.

A.    User Guide. A special property use is a use which by its unique nature or scale has qualities or impacts cannot be classified into a particular zone and must be given careful consideration before the city allows the establishment of such a use. In certain cases, a use which is permitted in a particular zone may be allowed in another zone only through the special property use permit.

B.    Review Process. All of the uses specified in subsection D of this section are special property uses. The use-standards table in each zone indicates which of the special property uses shall be permitted in each zone, and which review process shall be used to evaluate a particular use in a particular zone. Special property uses shall be evaluated for the following criteria, depending upon which review process is required by the use-standards table:

1.    Review Process II. All special property uses shall be evaluated for the criteria listed in subsections C and D of this section. The planning director shall also have the discretion to approve a minor expansion of an existing use which this chapter classifies as a special property use, or to require the proposed expansion to be reviewed using Review Process III. For purposes of this section, a minor expansion shall be not more than twenty-five percent of the land or building gross floor area devoted to the existing special property use.

2.    Review Process III. All special property uses shall be evaluated for the criteria in subsections C and D of this section.

3.    Review Process VA. Review Process VA shall be used only when the special property use is proposed concurrently with an action which requires review by the planning commission. All such special property uses shall be evaluated for the criteria listed in subsections C and D of this section.

C.    General Evaluation Criteria. The following general criteria shall be used for evaluating special property uses:

1.    The need of the neighborhood, district or city for a proposed special property use.

2.    The adequacy of streets, utilities and public services required to serve a proposed use.

3.    The impact of traffic generated by the proposed use on the surrounding area, pedestrian circulation and public safety; and the ability of the proponent to mitigate such potential impacts.

4.    The provision of adequate off-street parking, on-site circulation, and site access.

5.    Compatibility of proposed structures and improvements with surrounding properties, including the size, height, location, setback and arrangements of all proposed buildings and facilities, especially as they relate to light and shadow impacts on more sensitive land uses and less intensive zones.

6.    The number, size and location of signs, especially as they relate to more sensitive land uses.

7.    The landscaping, buffering and screening of buildings, parking, loading and storage areas, especially as they relate to more sensitive land uses.

8.    The generation of nuisance irritants such as noise, smoke, dust, odor, glare, visual blight or other undesirable impacts.

9.    Consistency with the goals and policies of the Everett general plan for the area and land use designation in which the property is located.

10.    Compliance with the provisions of this title and other city, state and federal regulations.

11.    Accessibility to public transit, and traffic reduction measures proposed by the applicant to reduce dependence of the proposed use on the automobile.

D.    Evaluation Criteria for Specific Uses. The uses which are listed in this subsection are classified as special property uses. When the use-standards table of a particular zone allows one of the following uses, subject to Review Process II, III or VA, the review authority shall consider the following factors listed for a specific use as a basis for approving, disapproving or approving with modifications a proposed use, in addition to the general evaluation criteria listed in subsection C of this section:

1.    Governmental or Quasi-Governmental Activities.

a.    Parks, Playground and Public Recreational Facilities.

(1)    Park buildings exceeding one thousand square feet in size shall be located a minimum of fifty feet from adjoining residentially zoned properties.

(2)    Accessory buildings containing less than one thousand square feet shall be reviewed using Review Process I.

b.    Above Ground Utility and Communications Facilities.

(1)    Major utility and communications facilities shall be designed, landscaped or otherwise screened to ensure compatibility with surrounding properties. Above ground utility and communications structures and antennas shall be designed, constructed, painted and screened so as to blend with surrounding uses and buildings. The review authority may impose additional restrictions on the location, setbacks, height, design, landscaping and screening of above ground utility and communications facilities if necessary to minimize visual impacts and promote greater compatibility with existing or planned uses on surrounding properties. Amateur radio tower antennas shall be regulated by Section 19.39.040, and are not subject to review under this section.

(2)    Antennas associated with above ground utility or communications facilities shall be located on existing or replacement towers or structures to the maximum extent technically feasible to discourage the proliferation of tower structures. Installation or co-location of antennas on existing or replacement towers or structures shall be preferred unless the proponent can demonstrate that a new structure is necessary to adequately serve the needs of the public. When proposed to be installed on an existing or replacement tower or structure located in a nonresidential zone located at least three hundred feet from residential zones, facilities which are subject to Review Process II shall be reviewed using Review Process I, subject to meeting all requirements of this section. When proposed to be located on an existing or replacement utility or communications structure or other nonresidential structure in a residential zone, Review Process II shall be required.

(3)    Tower structures for above ground utility and/or communications facilities shall not be located in or within three hundred feet of residentially zoned areas, in or within two hundred feet of gateway corridors as designated by the Everett comprehensive plan, or in or within two hundred feet of areas under the jurisdiction of the shoreline master program, unless the applicant provides an analysis of alternative sites and existing facilities which are technically feasible where the structure could be located or co-located which demonstrates that the proposed facility cannot adequately serve the needs of the public for the proposed utility or communications service in an alternative location. When location in or within two hundred feet of a gateway corridor, or in or within two hundred feet of areas under the jurisdiction of the shoreline master program, is necessary to serve the public need for utility or communications services, use of existing or replacement utility and communications facilities is encouraged. When existing facilities are used or replaced, addition to or replacement of existing structures may exceed the height of the existing facility by not more than twenty feet.

(4)    When tower structures for above ground utility and/or communications facilities are proposed to be located within three hundred feet of residentially zoned areas, in or within two hundred feet of gateway corridors as designated by the Everett comprehensive plan, or in or within two hundred feet of areas under the jurisdiction of the shoreline master program, zones which otherwise require Review Process II shall use Review Process III.

(5)    All utility and communication facilities shall be installed underground or within structures to the greatest extent practical in order to maximize safety and minimize visual and noise impacts upon surrounding properties. When it is not practical to install underground or within structures, all utility and communications facilities shall be architecturally designed and screened so as to minimize visual impacts on and promote compatibility with surrounding properties.

(6)    Above ground utility and communications facilities shall be designed so as to be the lowest height possible to adequately serve the needs of the public for the proposed utility or communications service. The review authority, in considering the proposed utility or communications facility, may allow antenna or tower height to exceed the height permitted in the underlying zone without having to satisfy the variance approval criteria of Section 41.130.C of this title. Approval may only be granted if it can be demonstrated that such height is necessary to adequately serve the needs of the public for the proposed utility or communications service. The applicant shall provide an evaluation of alternative designs and locations which could result in a lower tower or antenna height.

(7)    Towers associated with above ground utility and communication facilities and all ancillary structures shall comply with the setback standards of the zone in which the property is located; provided, that when allowed to be located in or within two hundred feet of residential zones, the height of any tower shall not exceed the horizontal distance between the base of the tower and the nearest residential property line. The review authority, in considering the proposed utility or communications facility, may allow a lesser setback, without having to satisfy the variance approval criteria of Section 41.130.C of this title, if it can be demonstrated that a lesser setback is necessary to adequately serve the needs of the public for the proposed utility or communications service, or that a lesser setback will result in better screening than in a location which meets the setbacks required herein.

(8)    The above ground utility or communications facility shall be removed from the site should the use for such purposes be discontinued for one hundred twenty days or more. The planning director shall have the discretion, upon the request of the owner of the facility, to allow an extension of this time period to allow for the use of the site by another utility or communications service provider.

(9)    Maintenance, repair, or replacement of existing utility or communications facilities or appurtenant structures and the installation of minor above ground utility and communications facilities are exempt from this section. This exemption includes replacement or increased heights of not more than twenty feet to accommodate wireless telecommunications antennas. Utility and communications service providers are encouraged to locate such facilities of a minor nature and small scale on existing or replacement structures, where technically feasible, in preference to erecting new towers or structures for such purposes.

(10) To the extent provided by law, the city may require utility or communications service provider to allow up to two additional service providers to be located on shared facilities to discourage the proliferation of tower structures, consistent with technological feasibility. The review authority may allow an additional twenty feet in tower height per additional provider to accommodate co-location.

(11) Utility or communications facilities which require towers for which safety lights are required by the FAA shall not be permitted unless the applicant demonstrates that such a facility in the proposed location and at such a height is necessary to adequately serve the needs of the public for the proposed utility or communications service.

(12) The planning director may require review by an expert third party who is approved by the city and the applicant, to be paid for by the applicant, when needed for review of site-specific data submitted by the applicant concerning technical aspects related to specific facilities and locations.

c.    Airfields, Seaplane Terminals and Landing Facilities.

(1)    All such facilities which are proposed shall be reviewed using Review Process IIIA.

(2)    Public or private airfields, airports and seaplane facilities shall be developed in accordance with Federal Aviation Administration requirements.

(3)    Public or private airfields, airports and seaplane facilities shall be designed and constructed in a manner which has the least noise impact on surrounding properties, especially areas developed with or designated for residential use.

(4)    Public or private airfields, airports and seaplane facilities shall be located so as to avoid safety hazards and minimize noise impacts, particularly on residential land uses.

d.    Special Aviation Uses. Special aviation uses shall consist of helipads, including the establishment or modification of the use and any supporting landing or communications facilities. Modification of a special aviation use shall include more flights or increased environmental impact than was identified in the city’s decision (or, if not specified in the decision, then the SEPA environmental document that served as a basis for the city’s decision).

(1)    Special aviation uses shall be reviewed under Review Process VA, except for emergency airlift landing facilities for existing hospitals which are subject to Review Process IIIA.

(2)    Facilities shall be located so as to avoid safety hazards and minimize noise impacts, particularly on residential land uses.

(3)    Facilities shall be designed, constructed and operated in a manner that has the least noise impact on surrounding properties, especially areas developed with or designated for residential use.

(4)    Facilities shall be developed in accordance with Federal Aviation Administration requirements.

2.    Community Service Facilities.

a.    Public and Private Elementary and Secondary Schools, Colleges, Universities and Public Vocational Education Centers.

(1)    This section does not apply to private training schools such as beauty schools, business colleges or technical training facilities, which shall be treated as commercial uses by this title.

(2)    Elementary and middle schools may be located on local or arterial streets. High schools shall be located adjacent to or within four hundred feet of collector or arterial streets.

(3)    Structures shall be located a minimum of twenty-five feet from adjacent residentially zoned properties. Buildings over twenty-five feet in height shall have an additional setback of one foot for each foot over twenty-five feet in height.

(4)    Temporary classrooms of any size, and accessory structures smaller than one thousand square feet shall be reviewed using Review Process I.

b.    Churches.

(1)    New church structures shall be located a minimum of fifteen feet from adjacent residentially zoned properties.

(2)    Church buildings shall comply with the height requirements of the zone in which it is located. Steeples may exceed the maximum building height.

(3)    Where churches are located adjacent to local residential streets, the parking lot entrances/exits shall be oriented toward the nearest collector or arterial street.

c.    Hospital.

(1)    Hospitals and directly related hospital functions shall only be located in areas which are designated “Hospital” (2.4) on the Everett general plan.

(2)    Hospital-owned or hospital-operated uses which are the same as uses which are permitted in the underlying zone shall be reviewed using Review Process I.

(3)    Vehicle, pedestrian and ambulance traffic shall be directed toward the nearest collector or arterial street and away from local residential streets.

(4)    Hospitals and hospital-related structures shall be set back a minimum of fifty feet from adjacent residentially zoned lots.

(5)    Hospitals and hospital-related uses shall be screened from adjacent residentially zoned lots by the landscaping requirements of Landscape Category B.

d.    Community Center.

(1)    A community center shall be located adjacent to or within four hundred feet of collector or arterial streets.

(2)    A community center shall be located within one-quarter mile of transit routes.

(3)    Where a community center is located adjacent to local residential streets, the parking lot entrances/exits shall be oriented toward the nearest collector or arterial street. The review authority may allow other means of access through the review process to provide for safe circulation and emergency vehicle access.

(4)    Structures shall be located a minimum of twenty-five feet from adjacent residentially zoned properties.

(5)    Community center buildings shall comply with the height requirements of the zone in which it is located; however, the review authority may consider allowing a greater height provided the additional height is necessary to accommodate the functional needs of the facility and that the facility is designed to be the lowest height that will accommodate the functional needs.

(6)    All freestanding signs shall be monument signs with a maximum height of eight feet and shall include low plantings around the base of the sign to make it a part of the landscape.

3.    Secure Community Treatment Facilities. Secure community transition facilities shall also be subject to the following standards:

a.    Essential Public Facilities. A secure community transition facility (“SCTF”) is an essential public facility. In addition to complying with the city’s requirements for a special use permit, the applicant for a SCTF shall comply with the city’s siting process for essential public facilities.

b.    Maximum Number of Residents. No SCTF shall house more than twelve persons, excluding resident staff.

c.    Siting Criteria.

(1)    No SCTFs shall be allowed in or within the line of sight of the following specified uses, whether such uses are located within or outside the city limits. In or within the line of sight of any “risk potential activity” as defined in RCW 71.09.020, as amended, include, but are not limited to:

(A)    Public and private schools;

(B)    School bus stops;

(C)    Licensed day care and licensed pre-school facilities;

(D)    Public parks, publicly dedicated trails, sports fields and playgrounds;

(E)    Recreational and community centers;

(F)    Churches, synagogues, temples and mosques;

(G)    Public libraries; and

(H)    Others risk potential activities identified by the Department of Social and Health Services.

(2)    The distance provided for line of sight shall be measured by following a straight line from the nearest point of the property parcel upon which the secure community transition facility is to be located, to the nearest point of the parcel of property or land use district boundary line from which the proposed land use is to be separated.

(3)    In order to assist in providing equitable distribution, there shall be a separation of one mile between an SCTF and any existing SCTF, jail, correctional facility, mental health facility, work release, pre-release or similar facility. (Similar facility includes but not limited to Madison House, Everett Gospel Mission Men Shelter, Everett Gospel Mission Women and Children Shelter, Green House, and Evergreen Manor.)

d.    Review Process III (Special Property Use/Conditional Use Permit): A special property/conditional use permit Review Process III application for SCTF shall comply with all the permitting and procedural requirements pertaining to a special property/conditional use permit Review Process III including those found under Title 15 of this code.

e.    Existing SCTFs. In the event a SCTF is legally sited in accordance with the provisions of this title, this does not preclude any subsequent siting of any risk potential activity described in subsection D.3.c.(1) of this section within the line of sight.

f.    When evaluating an application for a SCTF consideration shall also be given to those siting provisions provided in RCW 71.09.250(8).

E.    Adaptive Reuse of Nonresidential Buildings in Residential Zones.

1.    Purpose. The purpose of this subsection is to allow for adaptive reuse of nonresidential buildings in residential zones that are functionally obsolete in order to improve the economic feasibility of a property by considering uses that are not otherwise permitted, but which, if properly designed and managed, would not create unacceptable impacts on surrounding properties or the immediate vicinity in general. This process differs from the unlisted use process listed in Section 19.02.080 in that uses that are not specifically authorized in the underlying residential zone may be considered using the process described herein.

2.    Procedures. Any request to allow a use that is not otherwise permitted in the underlying residential zone shall be processed as a special property use. If the property is in or within five hundred feet of a single-family residential zone, the application shall be reviewed using Review Process III. If the property is more than five hundred feet from a single-family residential zone but is in or within one hundred fifty feet of a multiple-family residential zone, the application shall be reviewed using Review Process II. If the property is outside a historic overlay zone but listed on a historic register or as a contributing structure in a historic register district, the historical commission shall review the proposal and make a recommendation to the hearing examiner using Review Process III.

3.    Circumstances. The city may allow a use in a residential zone that is not specifically allowed in that zone if it is necessary to encourage adaptive reuse of a building under the following circumstances:

a.    It is unlikely that the primary building on the subject property could be preserved if only uses permitted in the underlying zone were allowed.

b.    Allowing a different use would enhance the character of the building and immediate vicinity.

c.    The use would not have a detrimental effect upon surrounding properties or the immediate vicinity.

4.    Uses. The following uses may be considered for adaptive reuse of an existing building in a residential zone:

a.    Dwelling units. Density based on underlying zoning plus one additional dwelling unit;

b.    Assisted living facilities;

c.    Libraries;

d.    Museums and art galleries;

e.    Social service facilities;

f.    Public services;

g.    Business incubators;

h.    Artist studios;

i.    Music venues;

j.    Cafes and bistros;

k.    Live-work units;

l.    Bed and breakfasts;

m.    Other uses not listed above if determined through the review process to be compatible with surrounding properties and the immediate vicinity.

5.    Review Criteria. The following criteria shall be used as the basis for determining compatibility with surrounding uses and approving, denying, or conditionally approving a request to allow the adaptive reuse of a non-residential building in a residential zone:

a.    General evaluation criteria of subsection C of this section.

b.    The adaptive reuse would promote or aid in the preservation or rehabilitation of the primary building.

c.    No significant adverse impacts to public safety.

d.    Compliance with building and fire codes.

e.    Hours of the day of proposed use or activity.

f.    Proposed management and operational procedures to minimize and mitigate potential impacts.

g.    Expansions to the primary building shall not exceed ten percent of the existing footprint or five hundred square feet, whichever is greater, and will not detrimentally affect the outside character of the building.

h.    Other factors not specified herein that would create adverse impacts to the immediate vicinity.

6.    Any proposal that would adversely affect properties in the immediate vicinity shall be denied. The city shall retain the right to revoke a permit issued under this section that fails to comply with any conditions of approval of said permit, or which operates in a manner inconsistent with representations made in the application, pursuant to Chapter 1.20.

F.    Notification. Notification for special property use applications shall be provided according to the required review process, as specified in Title 15, Local Project Review Procedures.

G.    Review Authority Decisions.

1.    Conditions and Restrictions. If the review authority approves a special property use permit, conditions and restrictions may be applied thereto, which exceed the minimum standards required by this title, when necessary to assure that the proposed use complies with all requirements of this title and is compatible with surrounding land uses.

2.    Time Limit on Approval. The effective time period in which the applicant may establish the use proposed by an approved special property use permit shall be five years from the date of the written order granting approval of the permit. The written order may specify a shorter time period if the review authority determines that it is in the public interest to authorize a shorter period of time in which to establish the use. The planning department may authorize one extension of time for a period of not more than one year if it can be found that circumstances beyond the control of the applicant prevented the establishment of the use.

3.    Appeals.

a.    Review Process II. The planning director’s Review Process II determination may be appealed as provided by Title 15, Local Project Review Procedures.

b.    Review Process III. No administrative appeal is provided for Review Process III decisions. (Ord. 3484-16 § 2, 2016; Ord. 3483-16 § 4, 2016; Ord. 2657-02 § 48, 2002; Ord. 2639-02 § 3, 2002; Ord. 2531-01 § 15, 2001: Ord. 2397-99 §§ 63—68, 1999; Ord. 2290-98 § 3, 1998; Ord. 1849-92 §§ 63, 64, 1992; Ord. 1811-91 § 10, 1991; Ord. 1671-89 (part), 1989.)

19.41.160 Rezones.

A.    User Guide. This subsection establishes the mechanism and criteria for the city to change a zoning classification on the zoning map and to change the boundaries of zones on the zoning map. This mechanism is called rezoning. Please note that this section does not apply to proposals to amend the text of this title. Section 19.41.170 describes how that can be done.

B.    Types of Rezones. There are two types of rezones:

1.    Area-Wide Rezones. A rezone shall be treated as an area-wide rezone when:

a.    It is initiated by the city; or

b.    A significant class of properties are similarly affected by the proposed rezone; and

c.    It is either:

(1)    Based upon an adopted or ongoing comprehensive planning process; or

(2)    Part of a process that includes amending the text of this title.

2.    Site-Specific Rezones. A rezone will be treated as a site-specific rezone when it does not meet the area-wide rezone requirements of subsection B.1 of this section.

3.    Notification. Notification for rezones shall be provided as specified in Title 15, Local Project Review Procedures.

C.    Area-Wide Rezones.

1.    Applicable Process. The city will use the review process as determined by Title 15, Local Project Review Procedures, to review and decide upon a proposal for an area-wide rezone.

2.    Area-Wide Rezones—Criteria. The city may decide to approve a proposal to rezone land only if it finds that:

a.    The proposal is consistent with the applicable provisions of the Everett general plan; and

b.    The proposal bears a substantial relation to public health, safety or welfare; and

c.    The proposal promotes the best long-term interests of the Everett community.

3.    Area-Wide Rezones—Map Change. If the city approves a proposal to rezone land through an area-wide rezone, it will give effect to this decision by making the necessary amendment to the zoning map of the city. Such an amendment to the zoning map shall be made by the city council adopting an ordinance which specifically describes the property being rezoned.

D.    Site-Specific Rezones.

1.    Applicable Process. The city will use the review process as determined by Title 15, Local Project Review Procedures, to review and decide upon an application for a site-specific rezone.

2.    Criteria. The review authority may approve an application for a site-specific rezone if it finds that:

a.    The proposed rezone is consistent with the Everett comprehensive plan; and

b.    The proposed rezone bears a substantial relation to public health, safety or welfare; and the proposed rezone promotes the best long-term interests of the Everett community; and

c.    The proposed rezone mitigates any adverse impact(s) upon existing or anticipated land uses in the immediate vicinity of the subject property.

3.    Site-Specific Rezones—Implementation—Map Change. If the city approves an application for a site-specific rezone, it will give effect to this decision by adoption of an ordinance, or by adoption of an ordinance or resolution in conjunction with a development agreement between the city and the applicant, as provided in RCW 36.70B.170, to implement the rezone and make the appropriate change to the zone boundary or zone classification on the zoning map.

E.    Zoning of Annexations. For properties which the city council has accepted an annexation petition as provided by state law or for which the city council has adopted a resolution initiating annexation proceedings by election, the city shall establish zoning and a comprehensive plan land use designation concurrently with the annexation proceeding. The zoning and comprehensive plan designation shall not become effective until such time as the ordinance annexing the subject properties becomes effective; provided, however, notwithstanding the above, the city is authorized to proceed with the annexation independent of the establishment of the zoning and comprehensive plan designation when the city council finds the existence of extenuating circumstances based upon the general health, safety and welfare of the area proposed to be annexed and/or the surrounding area. Whenever the city does not adopt zoning and a comprehensive plan designation concurrently with the annexation process, the annexation ordinance will establish an interim zoning designation of R-S (Suburban Residential) along with a complementary comprehensive plan designation which shall become effective upon the effective date of annexation and the annexed area shall remain zoned R-S until such time as the city establishes a different zoning for the annexed area. (Ord. 2601-02 § 7, 2002: Ord. 2531-01 § 16, 2001: Ord. 2384-99 § 6, 1999; Ord. 2012-94 § 1, 1994; Ord. 1849-92 § 65, 1992; Ord. 1671-89 (part), 1989.)

19.41.165 Performance agreement rezones.

The following applies to performance agreement rezones in which a resolution of intent to rezone has been approved by the Everett city council prior to December 31, 2001.

A.    Performance Agreement Rezone. A performance agreement rezone is a type of site-specific rezone in which a request for change of zone classification in which the applicant agrees to certain restrictions and conditions as part of the approval of the rezone request. Such conditions or restrictions shall be set forth in the resolution of intent to rezone the property, and shall be recorded on the property, in the county auditor’s office, to be disclosed on title documents for the property.

The purpose of the performance agreement rezone is to enable the city to apply special development standards to specific sites where the review authority feels that the application of such standards is necessary to facilitate compatibility of land uses, especially where properties in different zones abut one another or where the potential impacts of uses proposed by the applicant or permitted in the requested zone warrant the use of special development standards. The review authority may require applications for non-project rezones to be evaluated as performance agreement rezones.

B.    Resolutions of Intent. If the city decides to grant the request for a performance agreement rezone, it may adopt a resolution of intent to rezone. The resolution of intent shall establish a particular set of standards which govern the manner in which the site is developed and represents an agreement between the applicant (or future owners of the property) and the city. The resolution of intent permits the applicant to develop the property in accordance with the terms approved as part of the resolution.

C.    Criteria. The city may approve an application for a performance agreement rezone only if it finds that:

1.    The proposed rezone is consistent with the Everett comprehensive plan; and

2.    The proposed rezone bears a substantial relation to public health, safety or welfare; and promotes the best long-term interests of the Everett community; and

3.    The terms of the resolution of intent agreed to by the applicant and the city are sufficient to mitigate adverse impacts upon existing or anticipated land uses in the immediate vicinity of the subject property.

D.    Effect of Approval. If city council approves an application for a performance agreement rezone, it will give effect to this decision by adopting a resolution of intent to rezone which will have the following effects:

1.    Effect on the Applicant. The applicant may, subject to all other applicable codes and ordinances, develop the subject property in conformity with the resolution of intent to rezone.

2.    Effect on the City. If the applicant completes development of the subject property in conformity with the resolution of intent to rezone, the city shall make the zone boundary or zone classification change on the zoning map that was approved in that resolution.

E.    Minor Modifications. Subsequent to the adoption of the resolution of intent to rezone, the applicant may apply for a minor modification to the site plan approved as part of that resolution. The city will use the review process described in Title 15, Local Project Review Procedures, to review and decide upon an application for a minor modification. If the director determines that notice to contiguous property owners should be provided regarding the minor changes, the director may require the proposed modification to be reviewed using a higher level of review process than otherwise required by Title 15, Local Project Review Procedures. The city may approve a minor modification only if it finds that:

1.    The change is necessary because natural features of the subject property not foreseen by the applicant or by the city prior to adoption of the resolution of intent to rezone; and

2.    The change will not result in reducing the landscaped area, buffering areas or the amount of open space on the project required by the resolution of intent; and

3.    The change will not result in increasing the residential density or gross floor area of the project as approved by the resolution of intent; and

4.    The change will not result in any structure, or vehicular circulation or parking area which will adversely affect abutting property or public right-of-way, or conflict with any provisions of the resolution of intent or of this title; and

5.    The city determines that the change will not increase any adverse impacts or undesirable effects of the project and that the change in no way significantly alters the project.

F.    Major Modifications. The applicant may seek a modification to the approved site plan that does not meet all of the requirements of subsection E of this section by submitting an application which will be reviewed by the city using the provisions in subsection C of this section as if it were an application for a new performance agreement rezone.

G.    Map Change. Upon completion of the project in full compliance with the resolution of intent to rezone, the city, using review process as described in Title 15, Local Project Review Procedures, shall give effect to the rezone by adopting an ordinance implementing the rezone and making the change to the zone boundary or zone classification on the zoning map that was approved in the resolution of intent to rezone. The ordinance shall contain the legal description of the property being rezoned. (Ord. 2601-02 § 8, 2002.)

19.41.170 Zoning code—Amendments to the text.

A.    User Guide. This section establishes a mechanism for the city to amend the text of this title, the zoning code.

B.    Applicable Process. The city will use the review process as described in Title 15, Local Project Review Procedures, to review and decide upon a proposal to amend the text of this title.

C.    Criteria for Amending the Text of the Zoning Code. The city may amend the text of this title only if it finds that:

1.    The proposed amendment is consistent with the applicable provisions of the Everett general plan; and

2.    The proposed amendment bears a substantial relation to public health, safety or welfare; and

3.    The proposed amendment promotes the best long term interests of the Everett community.

D.    Notification. Notice of the proposed action shall be provided in accordance with Title 15, Local Project Review Procedures.

E.    Who May Initiate Proposed Amendments. Proposed amendments may be initiated by the planning commission, mayor or city council. (Ord. 2531-01 § 17, 2001: Ord. 1671-89 (part), 1989.)

19.41.180 Appeals.

A.    Appeals—General. Appeals related to certain specific types of permits are provided for in this title in the sections describing each type of permit. This section lists additional appeals provided for specific decisions related to the administration of this title.

B.    Appeals—Unlisted Uses. Section 2.080.D of this title provides a specific method for determining whether an unlisted use is permitted in a specific zone. Appeals of a determination concerning whether or not an unlisted use shall be permitted within a specific zone shall be made in accordance with the provisions of Title 15, Local Project Review Procedures. The decision on the appeal shall be based upon the nature of the unlisted use and the evaluation criteria listed in Section 2.080.D.

C.    Appeals—Application of Development Standards.

1.    Non-Adult Use Businesses. Certain review procedures and decisionmaking processes described in this title require the planning department or planning director to use discretion in the application of development standards to a particular use or development. Any person who feels that the application of development standards to a particular use or development has been improper or inappropriate may file an appeal of the director’s decision. Appeals shall be filed and processed in compliance with Title 15, Local Project Review Procedures. In evaluating such an appeal, the following criteria shall be considered:

a.    The nature of the use or proposed use of the subject property;

b.    The purpose for the particular development standard which is being appealed;

c.    The criteria used in making such an application of the development standard which is being appealed;

d.    The appellant’s basis for appealing the application of the particular development standard;

e.    The impact that the development standard requested by the appellant would have on the following:

i.    The proposed use,

ii.    Surrounding properties,

iii.    Public right-of-way,

iv.    Environmentally sensitive areas,

v.    Other standards required by this title,

vi.    Overall public health, safety and welfare,

vii.    Relevant policies of the Everett general plan; and

f.    Any findings or conclusions issued in writing by the planning department or planning director. An applicant who wishes to vary from a prescribed standard contained in this title shall seek remedy through the variance procedure or any other legal method prescribed in this title.

2.    Adult Use Businesses. A determination that an adult use business meets the development standards and/or locational requirements shall be processed in accordance with the provisions of Title 15, Local Project Review Procedures. Any person who feels that the application of development standards and/or locational requirements is improper or inappropriate may file an appeal. The appeal shall be processed as provided for in Title 15, Local Project Review Procedures.

In evaluating such an appeal, the hearing examiner shall determine whether the appealed development standards and/or location requirements have been correctly applied. The scope of the appeal and the hearing examiner’s authority shall be limited to these factual determinations. If the hearing examiner determines that the development standards and locational requirements were property applied, the appeal shall be denied. If the hearing examiner determines that the development standards and locational requirements where not properly applied, the appeal shall be granted. The time period for processing the appeal shall be the time period specified in Title 15, Local Project Review Procedures. Standing to appeal is limited to those persons defined in Title 15, Local Project Review Procedures.

When a proposed adult use requires a SEPA threshold determination under Chapter 43.21C RCW, it shall be reviewed in accordance with the provisions of the city’s SEPA regulations and Title 15, Local Project Review Procedures. Appeals of SEPA determinations for adult use businesses shall be limited to the appeals listed in Title 15, Local Project Review Procedures. The time period and procedures for submitting an appeal and for processing the appeal of the threshold determination shall be the time period and procedures specified for appeals in Title 15, Local Project Review Procedures. Whether the appeal is heard separately or in a combined hearing in conjunction with a SEPA appeal hearing, the scope of the hearing examiner’s authority in reviewing an appeal regarding the city’s application of development standards and/or locational requirements to a proposed adult use business shall be limited as set forth in this subsection. (Ord. 2531-01 § 13, 2001: Ord. 2144-96 §§ 14, 15, 1996; Ord. 1864-92 § 6, 1992; Ord. 1729-90 § 30, 1990; Ord. 1671-89 (part), 1989.)