Chapter 18A.40OVERLAY DISTRICTS

Sections:

18A.40.100
Flood Hazard Overlay.
18A.40.110
Purpose - Flood Hazard Overlay.
18A.40.120
Applicability – Flood Hazard Overlay.
18A.40.130
Administration - Flood Hazard Overlay.
18A.40.140
Alteration of Watercourses - Flood Hazard Overlay.
18A.40.150
Interpretation of FIRM Boundaries.
18A.40.160
Variances - Flood Hazard Overlay.
18A.40.170
Provisions for Flood Hazard Reduction.
18A.40.180
Allowable Activities Within the Regulatory Floodplain.
18A.40.200
Repealed.
18A.40.210
Repealed.
18A.40.220
Repealed.
18A.40.230
Repealed.
18A.40.240
Repealed.
18A.40.250
Repealed.
18A.40.260
Repealed.
18A.40.300
Senior Housing Overlay.
18A.40.310
Purpose - Senior Housing Overlay.
18A.40.320
Applicability - Senior Housing Overlay.
18A.40.330
Provisions - Senior Housing Overlay.
18A.40.340
Monitoring - Senior Housing Overlay.
18A.40.400
Sexually Oriented Business Overlays.
18A.40.410
Findings and Legislative Record.
18A.40.415
Purpose and Intent.
18A.40.420
Sexually Oriented Business Overlays Created.
18A.40.430
Applicability - Sexually Oriented Business land uses.
18A.40.435
Notice to Noncoforming SOB Land Uses.
18A.40.440
Processing of Applications for Licenses and Permits.
18A.40.445
Regulations Within SOBO.
18A.40.450
Expiration of Nonconforming Status.
18A.40.455
Notice and Order - Sexually Oriented Businesses.
18A.40.460
Definitions - Sexually Oriented Businesses.
18A.40.470
Prohibition and Public Nuisance.
18A.40.480
Provision for Conformance - Sexually Oriented Businesses.
18A.40.500
Planned Development District.
18A.40.510
Purpose – Planned Development District.
18A.40.520
Application for a Planned Development District (PDD).
18A.40.530
Public Hearing – Planned Development District.
18A.40.540
Required Findings – Planned Development District.
18A.40.550
Action of Hearing Examiner – Planned Development District.
18A.40.560
Minimum Size.
18A.40.570
Permitted Modifications.
18A.40.580
Permitted Residential Density and Lot Sizes.
18A.40.590
Required Open Space and Recreation Facilities.
18A.40.600
Multiple Zoning Districts.
18A.40.610
Binding Site Plan.
18A.40.620
Phased Development.
18A.40.630
Required Certificates and Approvals.
18A.40.640
Expiration.
18A.40.100Flood Hazard Overlay.
18A.40.110Purpose - Flood Hazard Overlay.

The Flood Hazard overlay (FHO) is intended to identify and recognize those areas of the city subject to the hazards of periodic flooding and to establish special standards and regulations to guide development and reduce personal injury, property damage and loss of life from flooding in those areas. This overlay shall apply to all areas of special flood hazards within the incorporated areas of the City of Lakewood as identified on Flood Insurance Rate Maps, Flood Boundary Maps, and Floodway Maps. In advancing these principles and the general purposes of the comprehensive plan, the specific objectives are to:

A. Promote the general health, welfare and safety of the city’s residents, and protect human life, and property from the dangers of flooding.

B. Prevent the establishment of certain structures and land uses unsuitable for human habitation because of the danger of flooding, unsanitary conditions or other hazards.

C. Minimize the need for rescue and relief efforts associated with flooding.

D. Help maintain a stable tax base by providing for sound use and development in flood-prone areas and to minimize prolonged business interruptions, and future blight areas.

E. Minimize damage to public facilities and utilities located in flood hazard areas.

F. Ensure that potential home and business buyers are notified that property is in a flood area.

G. Minimize expenditure of public money for costly flood relief, damage repair and flood control projects.

H. Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.

I. Qualify the City of Lakewood for participation in the National Flood Insurance Program, thereby giving citizens and businesses the opportunity to purchase flood insurance.

J. Maintain the quality of water in rivers, streams, and lakes and their floodplains so as to protect public water supplies, areas of the Public Trust, and wildlife habitat protected by the Federal Endangered Species Act.

K. Retain the natural channel, shoreline, and floodplain creation processes and other natural floodplain functions that protect, create, and maintain habitat for threatened and endangered species.

L. Prevent or minimize loss of hydraulic, geomorphic, and ecological functions of floodplains and stream channels. (Ord. 630 § 12, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.120Applicability – Flood Hazard Overlay.

A. Establishment of Flood Zones. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for Pierce County, and Incorporated Areas” dated March 7, 2017, and any revisions thereto, with an accompanying Flood Insurance Rate Map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this chapter. The Flood Insurance Study and the FIRM are on file at the City of Lakewood, 6000 Main Street SW, Lakewood, WA. The Flood Insurance Study shall be kept on file by the City Engineer.

B. Noncompliance. No structure or land shall hereafter be developed, converted, altered, constructed, or located without full compliance with the terms of this section and other applicable regulations. Violations of the provisions of this section are subject to the penalties identified in this title.

C. Abrogation and Greater Restrictions. This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section and other code, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

D. Interpretation of FIRM Boundaries. The Community Development Director shall make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards. In the interpretation and application of this section, all provisions shall be:

1. Considered to constitute minimum requirements.

2. Liberally construed in favor of the public trust.

3. Deemed neither to limit nor repeal any other powers granted under state statutes. A party contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretations as provided in this code.

E. Disclaimer of Liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on occasion. Flood heights may be increased by man-made or natural causes. This section does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the City of Lakewood, or any officer or employee thereof, or FEMA for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder. (Ord. 659 § 1, 2017; Ord. 630 § 13, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.130Administration - Flood Hazard Overlay.

A. Establishment of Building Permit and Land-Use Permit. A building permit and zoning certification shall be required in conformance with the provisions of this section for all structures including manufactured homes and all other development including fill and other activities.

A certificate of occupancy or final inspection approval for a new or substantially improved structure or an addition shall not be issued until:

1. The applicant provides a completed, signed and sealed Elevation or Floodproofing Certificate showing finished construction data in accordance with this ordinance.

2. If a mitigation plan is required, all work identified in the plan has been completed according to the plan’s schedule.

3. The applicant provides copies of all required Federal, State and local permits as noted in the application.

4. All provisions of this ordinance have been met.

B. A floodplain development permit shall be obtained before any construction or development begins within the Regulatory Floodplain. Application for a floodplain development permit shall be made on forms prescribed by the City and shall include:

1. A site plan, drawn to scale, showing:

a. The nature, location, dimensions and elevations of the property in question.

b. Names and location of all lakes, water bodies, water ways and drainage facilities within 300 feet of the site.

c. The elevations of the 10, 50, 100 and 500 year floods, where the data are available.

d. The boundaries of the Regulatory Floodplain, SFHA, floodway, riparian habitat zone, and channel migration area delineated in accordance with the provisions of this ordinance.

e. The proposed drainage system including, but not limited to, storm sewers, overland flow paths, detention facilities and roads.

f. Existing and proposed structures, fill, pavement and other impervious surfaces, and sites for storage of materials.

g. All wetlands.

h. Designated fish and wildlife habitat conservation areas.

i. Existing vegetation and proposed vegetation.

j. Description of the extent to which any water course will be altered or relocated as a result of proposed development.

2. If the proposed project involves regrading, excavation or filling, the site plan shall include proposed post-development terrain at one foot contour intervals.3. If the proposed project includes a new structure, substantial improvement, or repairs to a substantially damaged structure that will be elevated, the application shall include the flood protection elevation (FPE) for the building and site and the proposed elevations of the following:

a. The top of bottom floor (including basement, crawlspace or enclosure floor)

b. The top of the next higher floor.

c. The top of the slab of an attached garage.

d. The lowest elevation of machinery or equipment servicing the structure.

e. The lowest adjacent (finished) grade next to the structure.

f. The highest adjacent (finished) grade next to structure.

g. The lowest adjacent grade at the lowest elevation of a deck or stairs, including structural support.

4. If the proposed project includes dry floodproofing of a new structure, substantial improvement, or repairs to a substantially damaged nonresidential structure, the application shall include the flood protection elevation (FPE) for the building site. The elevation shall be noted in relation to the datum of the effective FIRM and the applicant shall provide certification by a registered professional engineer or licensed architect that the dry floodproofing methods meet the criteria in accordance with this ordinance.

5. If there has been no start of construction, a floodplain development permit shall expire one year after the date of issuance. Where the applicant documents a need for an extension beyond this period due to circumstances beyond the applicant’s control, the Community Development Director may authorize one or more extensions.

C. Administrative Officials. The Community Development Director, the City Engineer and the Building Official shall jointly administer and implement this section by granting or denying permit applications in accordance with its provisions.

D. Duties and Responsibilities. The duties of the administrative officials shall include, but not be limited to the following:

1. Review all permit and land-use applications to determine that the requirements of this section have been satisfied.

2. Review all applications to insure that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.

3. Review all applications in the area of special flood hazard to determine if the proposed development adversely affects the flood-carrying capacity of the area.

4. Review all applications to determine if the proposed development is located in the special flood hazard area or protected area and ensure that the provisions of this ordinance are met.

E. Use of Other Base Flood Data. When base flood elevation data has not been established, the City shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other source, as criteria for requiring that new construction, substantial improvements, or other development in Zone A comply with LMC 18A.40.170(B)(1), Residential Construction, LMC 18A.40.170(B)(2), Non-Residential Construction, and LMC 18A.40.170(B)(3), Manufactured Homes.

F. Information to be Obtained and Maintained.

1. Where base flood elevation data is provided by FEMA or required by this section, obtain and record the actual elevation (in relation to mean sea level) of the lowest floor, including basement, of all new or substantially improved structures and whether or not the structure contains a basement.

2. For all new or substantially improved flood-proofed structures:

a. Verify and record the actual elevation (in relation to mean sea level) to which the structure was floodproofed; and

b. Maintain the flood-proofing certifications required in LMC 18A.40.170, Provisions For Flood Hazard Reduction.

3. Maintain for public inspection all records pertaining to the provisions of this section.

4. The Floodplain Administrator shall submit reports to include the projects for which they issue floodplain development permits, including effects to flood storage, fish habitat and all indirect effects of development and mitigation provided, to FEMA as required for the National Flood Insurance Program. (Ord. 630 § 14, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.140Alteration of Watercourses - Flood Hazard Overlay.

A. The floodplain administrator shall notify adjacent jurisdictions and the state Department of Ecology or successor agency prior to any alteration or relocation of a watercourse, and submit evidence of such notification to FEMA.

B. Require that maintenance be provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished. If the maintenance program does not call for cutting of native vegetation, the system shall be oversized at the time of construction to compensate for said vegetation growth or any other natural factor that may need future maintenance.

C. An applicant for a project that will alter or relocate a watercourse shall submit a request for a Conditional Letter of Map Revision (CLOMR) where required by FEMA. The City shall not grant any permit unless FEMA issues the CLOMR and the provisions of the letter are made a part of the permit requirements. (Ord. 630 § 15, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.150Interpretation of FIRM Boundaries.

A. The City Engineer shall interpret the exact location of the boundaries of the areas of special flood hazard, where there appears to be a conflict between a mapped boundary and actual field conditions.

B. Any person contesting a flood area boundary may appeal the interpretation as provided in this title.

C. An appeal of the location of a flood area boundary shall consider all technical evaluations, all relevant factors, standards specified in other sections of this title, and:

1. The danger that material may be swept onto other lands to the injury of others.

2. The danger potential to life and property due to flooding or erosion damage.

3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.

4. The importance of the services provided by the proposed facility to the community.

5. The necessity to the facility of a waterfront location, where applicable.

6. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.

7. The compatibility of the proposed use with existing and anticipated development;

8. The relationship of the proposed use to the comprehensive plan for that area.

9. The safety of access to the property in times of flood for ordinary and emergency vehicles.

10. The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site.

11. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets and bridges.

D. The City may attach such conditions to the granting of variances hereunder as deemed necessary to further the purposes of this section.

E. The City shall maintain records of all appeal actions and report any variances to FEMA upon request.

F. All requests to FEMA to revise or change the flood hazard data, including requests for a Letter of Map Revision and a Conditional Letter of Map Revision shall be reviewed by the Administrative Officials prior to submittal to FEMA.

1. The Administrative Officials shall not sign any Community Acknowledgment Form for any requests based on filling or other development, unless the applicant for the letter documents that such filling or development is in compliance with this ordinance.

2. The Administrative Officials shall not approve a request to revise or change a floodway delineation until FEMA has issued a Conditional Letter of Map Revision that approves the change.

G. If an applicant disagrees with the regulatory data prescribed by this ordinance, he/she may submit a detailed technical study needed to replace existing data with better data in accordance with FEMA mapping guidelines. If the data in question are shown on the published FIRM, the submittal must also include a request to FEMA for a Conditional Letter of Map Revision.

H. All new hydrologic and hydraulic flood studies conducted pursuant to this section shall consider future conditions and the cumulative effects from anticipated future land use changes. This review shall be in accordance with Regional Guidance for Hydrologic and Hydraulic Studies in Support of the Model Ordinance for Floodplain Management under the National Flood Insurance Program and the Endangered Species Act, FEMA Region X, 2012. (Ord. 630 § 16, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.160Variances - Flood Hazard Overlay.

A. Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in this section.

B. Variances shall not be issued within a designated floodway if the proposed development would result in any increase in flood levels during the base flood discharge would result.

C. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

D. Variances shall only be issued upon:

1. A showing of good and sufficient cause.

2. A determination that failure to grant the variance would result in exceptional hardship to the applicant.

3. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

E. Any applicant to whom a variance is granted shall be given written notice of the required lowest floor elevation stated in feet below the base flood elevation. Applicants shall be made aware that the cost of flood insurance will be commensurate with the risk resulting from the reduced lowest flood elevation.

F. Variance Time Limit. Authorization of a variance shall be void after six (6) months unless the new construction, substantial improvement or approved activity has taken place. However, the Community Development Director may, at his discretion, extend authorization for one (1) additional six (6) month period upon request. (Ord. 630 § 17, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.170Provisions for Flood Hazard Reduction.

A. General Standards. In all areas of special flood hazards, the following standards shall apply for all new construction and substantial improvements or other development:

1. Anchoring.

a. All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.

b. All manufactured homes must be anchored to prevent flotation, collapse, or lateral movement by providing over-the-top and frame ties to ground anchors. Specific requirements shall be that:

(1) Over-the-top ties provided at each end of the manufactured home, with two (2) additional ties per side at intermediate locations and manufactured homes less than fifty (50) feet long requiring one (1) additional tie per side.

(2) Frame ties be provided at each corner of the home with five (5) additional ties per side at intermediate points and manufactured homes less than fifty (50) feet long requiring four (4) additional ties per side.

(3) All components of the anchoring system be capable of carrying a force of four thousand eight hundred (4,800) pounds; and

(4) Additions to the manufactured home shall be similarly anchored.

c. An alternative method of anchoring may involve a system designed to withstand a wind force of ninety (90) miles per hour or greater. Certification by a registered architect or engineer must be provided to the Building Official that this standard has been met.

2. Construction Materials and Methods.

a. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

b. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

c. Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

3. Utilities.

a. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system;

b. Water wells shall be located on high ground that is not in the floodway.

c.New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters; and

d. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

4. Use of Openings in Enclosures Below a Structure's Lowest Floor. All new construction and substantial improvements, which have fully enclosed areas below the lowest floor that are subject to flooding, shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters in those areas. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria: A minimum of two (2) openings having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one (1) foot above grade. Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

5. Subdivision Proposals.

a. All subdivision proposals shall be consistent with the need to minimize flood damage.

b. All public utilities and facilities serving subdivision proposals, such as sewer, gas, electrical, and water systems, shall be located and constructed to minimize flood damage.

c. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage.

d. Base flood elevation data shall be provided for subdivision proposals and other proposed developments that contain more than fifty (50) lots or five (5) acres, whichever is less.

e. The final recorded subdivision plat shall include a notice that part of the property is in the SFHA, riparian habitat zone and/or channel migration area, as appropriate.

6. Review of Building Permits. Where elevation data is not available either through Flood Insurance Study or from another authoritative source, applications for building and land use permits shall be reviewed to assure that proposed construction will be reasonable safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two (2) feet above grade in these zones may result in higher insurance rates.

7. Encroachments. It must be demonstrated that the cumulative effect of any proposed development, where combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one (1) foot at any point.

B. Specific Standards. In all areas of special flood hazards where base flood elevation data has been provided, the following provisions apply:

1. Residential Construction. New construction and substantial improvement of any residential structure shall elevate the lowest floor, including basement, at least one (1) foot above the base flood elevation.

2. Non-Residential Construction. New construction and substantial improvement of any commercial, industrial or other non-residential structure shall either elevate the lowest floor, including basement, at least one (1) foot above the base flood elevation or, together with attendant utility and sanitary facilities, shall:

a. Be flood-proofed so that below one (1) foot above the base flood level the structure is watertight, with walls substantially impermeable to the passage of water.

b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

c. Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with the standards of this subsection. Such certification shall be provided to the City for review and approval.

d. Non-residential structures that are elevated and are not flood-proofed must meet the same standards for space below the lowest floor as described in this section.

e. Applicants flood-proofing non-residential buildings shall be advised that flood insurance premiums will be based on rates that are one (1) foot below the flood-proofed level (e.g., a building flood-proofed to the base flood level will be rated as one (1) foot below).

3. Manufactured Homes. All manufactured homes to be placed or substantially improved within Zones A1-A30, AH, and AE shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated at least one (1) foot above the base flood elevation.

a. Manufactured homes shall be securely anchored to an adequately anchored foundation system so that:

(1) The lowest floor of the manufactured home is elevated at least one (1) foot above the base flood elevation; or

(2) The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty-six (36) inches in height above grade and be securely anchored to an adequately designed foundation system to resist flotation, collapse, and lateral movement.

b. New manufactured home parks and subdivisions. The following provisions apply for expansions to existing manufactured home parks and subdivisions. They also apply to existing manufactured home parks and subdivision where the repair, reconstruction or improvement of the streets, utilities and pads equals or exceeds fifty (50) percent of the value of the streets, utilities and pads before repair, reconstruction or improvement has commenced. The same provisions apply to manufactured homes not placed in a manufactured home park or subdivision:

(1) Pads or lots are elevated on compacted fill to or above the base flood level (insurance can be waived).

(2) Stands or lots are elevated on compacted fill or on pilings so that the lowest floor of the mobile home will be at or above the base level (insurance required).

(3) Adequate surface drainage and access for hauler are provided; and

(4) In the instance of elevation on piers or pilings where:

(a) lots are large enough to permit steps.

(b) pier and piling foundations are placed in stable soil no more than ten (10) feet apart.

(c) reinforcement is provided for piers and pilings more than six (6) feet above the ground level.

4. Accessory Structures and Uses.

a. New construction and substantial improvement of residential accessory structures in special flood hazard areas are not subject to the requirements of this section, provided that:

(1) The floor area of all floors of the accessory structure totals one thousand (1,000) square feet or less.

(2) The accessory structure shall not be used for human habitation.

(3) The accessory structure shall be designed to have low flood damage potential.

(4) The accessory structure shall be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters.

(5) The accessory structure shall be firmly anchored to prevent flotation that may result in damage to other structures.

(6) All service facilities, such as electrical and heating equipment associated with the accessory structure, shall be elevated or floodproofed. b. If it is determined that the accessory structure may cause significant flood risk, all requirements of this section shall be satisfied.

c. When accessory structures built under the provisions of this section exceed a value greater than ten (10) percent of the value of the principal residential structure, substantial increases in insurance rates may result.

5. Critical Facilities. Construction of new critical facilities shall be, to the greatest extent possible, located outside the limits of the special flood hazard area. Construction of new critical facilities shall be permissible within the one hundred (100) year floodplain if no feasible alternative site is available. Critical facilities constructed within the one hundred (100) year floodplain shall have the lowest floor elevated three (3) feet or more above the level of the one hundred (100) year base flood elevation at the site. Flood-proofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters. All access routes to critical facilities shall be elevated to at least one (1) foot above the base flood elevation, to the greatest extent possible.

6. Floodways. The floodway is an extremely hazardous area due to the velocity of floodwaters that carry debris, potential projectiles, and erosion potential. The following provisions apply:

a. Encroachments, including fill, new construction, substantial improvements, and other development, shall be prohibited, except for:

(1) Repairs, reconstruction, or improvements to a structure which do not increase the ground floor area.

(2) Repairs, reconstruction or improvements to a structure, the cost of which does not exceed fifty (50) percent of the fair market value of the structure either before the repair, or reconstruction is started, or if the structure has been damaged, and is being restored, before the damage occurred.

(3) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications, which are solely necessary to assure safe living conditions.

(4) Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places that do not increase the building's dimensions.

(5) Repairs, replacement, reconstruction or improvement to existing farmhouses located in designated floodways and on designated agricultural lands that do not increase the building's total square footage of encroachment and are consistent with all requirements of WAC 173-158-075.

(6) Repairs, replacement, reconstruction or improvements to substantially damaged residential dwellings other than farmhouses that do not increase the building’s total square footage of encroachment and are consistent with all requirements of WAC 173-158-075.

(7) Prior to the repair or replacement of a substantially damaged residential structure located within a floodway a recommendation shall be obtained from the Washington Department of Ecology in accordance with WAC 173-158-076.

(8) The applicant shall provide a certification by a registered professional engineer demonstrating through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed development would not result in any increase in flood levels during the occurrence of the base flood discharge.

b. All new construction and substantial improvements permitted pursuant to LMC 18A.40.170(B)(6)(a), Specific Standards, Floodways., shall comply with all applicable flood hazard reduction provisions of LMC 18A.40.170(B), Provisions For Flood Hazard Reduction, Specific Standards.

c. In areas with base flood elevations (but a regulatory floodway has not been designated), no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1-30 and AE on the community’s FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

7. Shallow Flooding Areas (AO Zones). Shallow flooding areas appear on FIRM as AO zones with depth designations. The base flood depths in these zones range from one (1) to three (3) feet above ground where a clearly defined channel does not exist, or where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is usually characterized as sheet flow. In all areas of special flood hazards designated as areas of shallow flooding, the following provisions shall apply:

a. All new construction and substantial improvements of residential structures and manufactured homes shall have the lowest floor, including the basement, elevated one (1) foot above the highest grade adjacent to the building site or above the depth number specified on the FIRM; at least two (2) feet if no depth number is specified.

b. All new construction and substantial improvements of non-residential structures shall:

(1) Have the lowest floor, including basement, elevated one (1) foot above the highest adjacent grade of the building site or above the depth number specified on the FIRM, at least two (2) feet if no depth number is specified, or;

(2) Together with attendant utility and sanitary facilities, be completely flood proofed to or above that level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. If this method is used, compliance shall be certified by a registered professional engineer or architect.

c.  Require adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures.

8. Recreational Vehicle (RV) Parks.

a. All new RV park proposals shall be consistent with the need to minimize flood damage.

b. All public utilities and facilities serving RV parks, such as sewer, electrical, and water systems, shall be located and constructed to minimize flood damage.

c. All RV park proposals shall have adequate drainage provided to reduce exposure to flood damage.

d. Base flood elevation data shall be provided for any RV park that is five (5) acres or greater in size.

e. Recreational vehicles placed on sites shall be on the site for fewer than 180 consecutive days. To be allowed for longer periods recreational vehicles must be fully licensed and ready for highway use, on their wheels or jacking system, attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions; or meet the requirements of Section 18A.40.170(B)(3).

9. Site Design.

A. Structures and other development shall be located to avoid flood damage.

(1) If a lot has a buildable site out of the Regulatory Floodplain, all new structures shall be located in that area.

(2) If a lot does not have a buildable site out of the Regulatory Floodplain, all new structures, pavement and other development must be sited in the location that has the least impact on habitat by locating the structures as far from the water body as possible or placing the structures on the highest land and lot.

(3) A minimum setback of 15 feet from the Protected Area shall be required for all structures.

B. All new development shall be designed and located to minimize the impact on flood flows, flood storage, water quality and habitat.

(1) Stormwater and drainage features shall incorporate low impact development techniques that mimic pre-development hydrologic conditions. Such methods include stormwater infiltration, rain gardens, grass swales, filter strips, disconnected impervious areas, permeable pavement and vegetative roof systems.

(2) If the proposed project will create new impervious surfaces so that more than 10 percent of the portion of the parcel in the Regulatory Floodplain is covered by impervious surface, the applicant shall demonstrate that there will be no net increase in the rate and volume of stormwater surface runoff that leaves the site or that the adverse impact is mitigated.

10. Hazardous Materials. No new development shall create a threat to public health, public safety, or water quality. Chemicals, explosives, gasoline, propane, buoyant materials, animal wastes, fertilizers, flammable liquids, pollutants, or other materials that are hazardous, toxic, or a threat to water quality are prohibited from the Regulatory Floodplain. This prohibition does not apply to small quantities of these materials kept for normal household use. (Ord. 630 § 18, 2015; Ord. 264 § 1 (part), 2001.)

18A.40.180Allowable Activities Within the Regulatory Floodplain.

A. Activities that do not meet the definition of “development” are allowed in the Regulatory Floodplain without the need for a floodplain development permit under this ordinance, provided all other Federal, State and local requirements are met. Activities include, but are not limited to, the following.

1. Routine maintenance of landscaping that does not involve grading, excavation or filling.

2. Removal of noxious weeds and hazard trees and replacement of non-native vegetation with native vegetation.

3. Normal maintenance of structures, such as re-roofing and replacing siding, provided that such work does not qualify as a substantial improvement.

4. Normal maintenance of above ground public utilities and facilities, such as replacing downed power lines.

5. Normal street and road maintenance, including filling potholes, repaving, and installing signs and traffic signals, but not expansion of paved areas.

6. Normal maintenance of a levee or other flood control facility prescribed in the operations and maintenance plan for the levee or flood control facility.

Plowing and other normal farm practices (other than structures or filling) on farms in existence as of the effective date of this ordinance.

B. The following activities are allowed in the Regulatory Floodplain without the analysis required in Sec. 18A.40.170.B.6(5) or the habitat impact assessment required under LMC 14A.154.050(C), providing all other provisions of this ordinance are met, including obtaining a floodplain development permit:

1. Repairs or remodeling of an existing structure, provided that the repairs or remodeling are not a substantial improvement or a repair of substantial damage.

2. Expansion of an existing structure that is no greater than ten percent beyond its existing footprint, provided that the repairs or remodeling are not a substantial improvement or a repair of substantial damage. This measurement is counted cumulatively from the effective date of this ordinance or September 22, 2011, whichever is earlier. If the structure is in the floodway, there shall be no change in the dimensions perpendicular to flow.

3. Activities with the sole purpose of creating, restoring or enhancing natural functions associated with floodplains, streams, lakes, estuaries, marine areas, habitat, and riparian areas that meet Federal and State standards, provided the activities do not include structures, grading, fill or impervious surfaces.

4.Development of open space and recreational facilities, such as parks, trails and hunting grounds, that do not include structures, grading, fill, impervious surfaces or removal of more than 5% of the native vegetation on that portion of the property in the Regulatory Floodplain. (Ord. 630 § 19, 2015.)

18A.40.200Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014.)

18A.40.210Purpose - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 264 § 1 (part), 2001.)

18A.40.220Applicability - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 264 § 1 (part), 2001.)

18A.40.230Development Standards - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 362 § 4, 2004; Ord. 264 § 1 (part), 2001.)

18A.40.240Provisions for Buffers Where Required - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 264 § 1 (part), 2001.)

18A.40.250Variances from Buffer Requirements - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 264 § 1 (part), 2001.)

18A.40.260Additional Provisions - Riparian Overlay. (Repealed)

(Repealed Ord. 590 § 5, 2014; Ord. 264 § 1 (part), 2001.)

18A.40.300Senior Housing Overlay.
18A.40.310Purpose - Senior Housing Overlay.

In order to provide opportunities for housing elders in areas of the city where the greatest level of services are available, the comprehensive plan creates an overlay area in which senior housing is to be focused. This section carries forward the comprehensive plan’s intent in creating regulatory incentives for senior housing within the Senior Housing overlay (SHO). (Ord. 264 § 1 (part), 2001.)

18A.40.320Applicability - Senior Housing Overlay.

This section applies, at the developer’s option, to land-use applications for senior housing within the SHO, except for the construction of a single-family dwelling on one (1) lot that can accommodate only one (1) dwelling based upon the density of the underlying zoning designation. This section shall not apply to congregate care and group living facilities. (Ord. 264 § 1 (part), 2001.)

18A.40.330Provisions - Senior Housing Overlay.

A. All of the provisions and requirements of the City’s housing incentives program set forth in LMC 18A.50.700, Housing Incentives Program, shall be equally applied to senior housing developed within the SHO.

B. An additional fifteen (15) percent density bonus, over the maximum allowable additional density afforded by the Housing Incentives Program, shall be afforded in return for the provision of low-income or market-rate senior housing within the SHO, regardless of zoning district. (Ord. 264 § 1 (part), 2001.)

18A.40.340Monitoring - Senior Housing Overlay.

In conjunction with monitoring required for the housing incentives program, the Community Development Department shall maintain a list of all senior units created within the SHO using the additional incentives herein. In conjunction with evaluation of the housing incentives program required as part of comprehensive plan review and amendment processes, the level and type of senior housing production under these terms shall likewise be reviewed and evaluated. (Ord. 264 § 1 (part), 2001.)

18A.40.400Sexually Oriented Business Overlays.
18A.40.410Findings and Legislative Record.

Prior to the adoption of this Ordinance, the City of Lakewood City Council enacted legislation related to Sexually Oriented Businesses (SOBs) based upon information and findings relevant to this Ordinance. These prior legislative actions included City of Lakewood Ordinances No. 171 and 258.

Lakewood Ordinance No. 171, adopted in May of 1998, provided for the licensing of and regulation of conduct within adult cabarets. Ordinance No. 171 based these regulations in part upon the city’s lack of a clearly demarked commercial/business district, the location of commercial and business land uses near residential neighborhoods, and the need to protect citizens - especially children - from criminal and unlawful activities and impacts associated with SOBs. These impacts are known as, and are generally referred to herein as, the harmful secondary effects of SOBs.

Ordinance No. 258, adopted in February of 2001, regulated the location and zoning of SOBs within the City. Ordinance 258 cited a detailed review of the national record regarding the harmful secondary effects of SOBs, as well as studies from cities such as New York, Indianapolis, San Diego and Los Angeles. Ordinance 258 found convincing documented evidence based upon that record to find that SOBs have detrimental effects upon nearby businesses and residential neighborhoods.

The legislative record and findings of Ordinances No. 171 and 258 are incorporated herein by this reference as if set forth fully herein, and such records and findings are cited hereby as support for the zoning regulations created in this Ordinance.

Prior to adoption of this Ordinance, the PAB held public meetings to consider relevant amendments to the City’s comprehensive plan. During a public hearing held on October 15, 2003, approximately 35 people testified and many written comments were submitted in response to the City’s proposed amendments, which at that time contemplated concentrating all SOBs within the city into a single defined overlay area. The comments were overwhelmingly negative and cited citizen perceptions regarding the adverse effects that adult entertainment and SOBs have upon the community, neighborhoods and families exposed to such land uses. Citizens resoundingly stated their belief that concentrating SOBs into a single zone would irreparably harm a thriving business community located near the proposed overlay.

The PAB then recommended to the City Council that the comprehensive plan goals and policies related to SOBs be deleted to allow flexibility to implement the changes shown in this Ordinance, because, by state statute, amendments to the City’s comprehensive plan can be made only once per year. The City Council adopted this amendment to the comprehensive plan on December 1, 2003. Thereafter, public meetings were held and the PAB worked with a variety of stakeholders in formulating SOB zoning regulations that fit the specific needs, community and conditions of the City. The stakeholder groups included representatives from businesses, educational institutions, community leaders, and representatives from the adult entertainment industry.

After amendment of the City’s comprehensive plan, the PAB commenced studying alternative SOB zoning proposals. The PAB’s research and study resulted in the specific findings listed below. Based upon these findings the PAB recommended to the Lakewood City Council that the harmful secondary effects of SOBs be minimized through regulations upon the zoning, operating and locating of SOBs as specified in this Ordinance. The PAB found that through creation of overlay areas within the City wherein SOBs could locate, the City could control the locations where SOBs exist and minimize the harmful secondary effects SOBs have upon business districts, neighborhoods and residential areas. Further, by creation of two or more overlay areas where SOBs will be allowed, the City can minimize the impact SOBs have upon any individual neighborhood or district within the City.

The City Council, through the passage of this Ordinance, does hereby adopt the specific findings of the PAB in regard to zoning SOBs, stated as follows:

A. Materials submitted to the PAB demonstrated that SOBs can create harmful secondary effects upon the communities they are located in, are detrimental to and conflict with the peace and tranquility of neighborhoods and residential land uses, and if left unregulated can cause deterioration of property values and increased crime and public disturbances in the areas in which they are located.

B. Citizens and business owners within the City have publicly expressed their fear of the harmful secondary effects SOBs cause and have testified that they strongly oppose SOB land uses. Citizens have expressed that they believe SOB land uses are harmful to neighborhoods and negatively impact families and children. Business owners have expressed concern that SOB land uses may impact commercial areas and business districts, increasing incidents of crime and decreasing property values.

C. Based upon a review of land use patterns, zoning and demographics throughout Lakewood, the PAB found that some areas are entirely unsuitable for and incompatible with SOB land uses. Such areas include residential neighborhoods and locations in close proximity to churches and schools. The PAB also found that the harmful effects of SOBs may be minimized if SOBs are limited to the areas where they currently exist; to areas that contain no residential land uses or only nonconforming residential land uses; and areas separated topographically and/or geographically from residential neighborhoods, churches and schools.

D. The PAB found that the creation of overlay areas wherein Sexually Oriented Businesses may locate is in the best interests of the City of Lakewood and necessary to protect the public health, safety and welfare. Protecting, preserving and improving the quality of its residential neighborhoods is sufficient to justify zoning regulations upon SOBs, as shown in the Washington State Supreme Court’s opinion in Northend Cinema, Inc. v. City of Seattle, 90Wn.2d 709, 585 P.2d 1153 (1978).

E. The PAB reviewed police incident reports that documented the occurrence of crimes within adult cabarets in the City. Since adoption of the City’s adult entertainment standards of conduct and violations in 1998, three adult entertainment cabarets have offered or allowed entertainment that violated City regulations. These adult cabarets are Lipstix (now known as Stilettos), the New Players Club, and the Déjà vu Nightclub. Police incident reports and court records regarding these violations are contained within the legislative record for this Ordinance.

F. The PAB has reviewed the administrative actions City officials have taken against the business licenses issued to adult entertainment cabarets. These administrative actions have included revocation of the New Players Club’s business license, a thirty (30) day suspension of Lipstix’ business license, and a pending action to revoke Stiletto’s business license for one year. The specific facts, violations and crimes that form the basis for these administrative actions are contained within the legislative record.

G. The PAB has reviewed records that indicate that improperly operated SOBs can be the focal point for a variety of crimes. These crimes were documented in the case of Heesan Corp. v. City of Lakewood, 118 Wn.App. 341, 75 P.3d 1003 (2003), wherein it was shown that entertainers at the New Players Club, a SOB located in the Ponders neighborhood of Lakewood, engaged in many illegal practices. These practices included entertainers offering to perform and engaging in sexual conduct in exchange for money, entertainers performing at less than four feet from the audience, and entertainers engaging in improper physical contact with customers. Additionally, the decision in Heesan Corp. v. City of Lakewood contained documentation that the premises of the New Players Club was used for the unlicensed consumption of alcohol, for illegal smoking of marijuana, and for the sale of other illegal drugs.

H. The PAB reviewed records that indicated that the harmful secondary effects of an improperly operated SOB can constitute a public or moral nuisance. Such a nuisance would impact the community as a whole, although the impact would be particularly burdensome to the employees and patrons of the business, and to property owners and persons residing and working in close proximity to the offending SOB land use.

I. The PAB concurred with the findings of the City of Lacey in the rationale for the adoption of City of Lacey Ordinances No. 11422 and 11274, regarding Urban Growth Area Zoning and adult entertainment facilities. When adopting these Ordinances in 1996 and 1997, the City of Lacey found that studies in Austin, Texas, and in the state of Michigan provided convincing evidence that crime increased in areas close to adult businesses. The City of Lacey also cited to a Detroit, Michigan, report and to evidence gathered from Seattle and Tacoma, Washington, that demonstrated that cities and metropolitan areas experienced harmful secondary effects related to adult entertainment activities. These harmful secondary effects can cause a detrimental impact upon residential land uses leading to destabilization of residential areas and depressed property values.

J. The PAB concurred with the findings contained in City of Spokane Ordinances No. 32778 and 33001, where the Spokane Planning Services Department documented evidence that adult bookstores and adult entertainment establishments create harmful secondary effects including negative health, safety, economic and aesthetic impacts upon neighboring properties and the community as a whole. The PAB cited to World Wide Video v. City of Spokane, No. 02-35936 (9th Cir. 2004), as documenting evidence of the harmful secondary effects of adult entertainment and as further support for the belief that reducing the undesirable effects of adult entertainment and SOBs is a substantial governmental interest that can be achieved with time, place and manner restrictions upon where such businesses may locate within a city.

K. The PAB reviewed studies that indicated that adult bookstores generate harmful secondary effects upon neighborhoods, families and the community. The PAB also reviewed police incident reports that indicated that crimes involving indecent exposure can occur at adult bookstores that contain panoram devices. (Ord. 358 § 6 (part), 2004.)

18A.40.415Purpose and Intent.

Based upon the findings of the PAB, the City Council for the City of Lakewood does hereby adopt this Ordinance for the purpose of minimizing the harmful secondary effects of SOB land uses within the City. It is the intent of this Ordinance to protect Lakewood’s citizens, persons who own property within the City, and people who travel through the City from crime, blight and other harmful secondary effects associated with SOBs.

By limiting the areas in which SOBs are allowed to operate, the Lakewood City Council intends to protect families, children and residential neighborhoods from crimes, nuisances and disturbances of the public peace and safety; to protect residential neighborhoods and business districts from blight and deterioration of property values; and to protect, foster and support the goals and ideals of schools, religious and public service organizations serving the Lakewood community.

It is not the intent of this Ordinance to suppress any constitutionally protected speech or expression. This Ordinance is intended as a content neutral regulation to diminish and control crime and the harmful secondary effects associated with SOBs, while allowing the existence of constitutionally protected expression. (Ord. 358 § 6 (part), 2004.)

18A.40.420Sexually Oriented Business Overlays Created.

There are hereby created Sexually Oriented Business Overlays (SOBOs) within the geographic areas of the City as identified and depicted on “Exhibit A (SOBOs),” attached hereto and by this reference incorporated herein. Sexually oriented businesses as defined within this title may locate only within the SOBOs identified in “Exhibit A.” (Ord. 358 § 6 (part), 2004.)

Code reviser’s note: Exhibit D of Ordinance No. 358 is on file in the City Clerk’s Office.

18A.40.430Applicability - Sexually Oriented Business land uses.

A. This section shall apply to all SOB land uses, as defined herein or as may be hereafter defined, located within the City of Lakewood.

B. Any SOB that lawfully existed, held all valid and necessary business licenses, and operated within the boundaries of any SOBO identified in “Exhibit A” as of the effective date of this Ordinance shall be considered a conforming land use.

C. Any SOB that lawfully existed, held all valid and necessary business licenses, and operated within the City in a location or parcel of property not completely within the boundaries of a SOBO as of the date of passage of this Ordinance shall be considered a vested but nonconforming land use.

D. All new applications for SOB business licenses shall be denied unless the application clearly identifies a business location and premises located within a SOBO and the application is in compliance with all requirements stated in this title.

E. If a new application for a SOB business license shows a SOB business location or premises address upon a parcel of land partially within a SOBO, the application shall be approved if the application conforms in all other ways with the requirements of this title and at least 75 percent of the square footage of the parcel upon which the SOB is proposed is located within a SOBO. (Ord. 358 § 6 (part), 2004.)

18A.40.435Notice to Noncoforming SOB Land Uses.

A. All SOBs made nonconforming upon the effective date of this Ordinance shall be notified in writing of such nonconforming status pursuant to LMC 18A.40.455.

B. The City Manager or the designee thereof shall determine whether SOBs lawfully existing on the effective date of this Ordinance are within SOBO zone boundaries. This determination shall be made within forty-five (45) days after the effective date of this Ordinance. This determination of zoning compliance shall be based upon the boundaries of the SOBOs and the location of each SOB as determined by a review of business licensing information and public records available to the City.

C. Determinations of nonconformity under this section shall be subject to appeal as provided in LMC 18A.02.500 through 18A.02.575 and LMC 18A.02.740 as a process one administrative action. Appeal of the hearing examiner’s decision on a determination of nonconformity shall be to superior court as provided in LMC 18A.02.755. (Ord. 358 § 6 (part), 2004.)

18A.40.440Processing of Applications for Licenses and Permits.

A. Upon receipt of an application for a permit or license for a SOB, the City Manager or the designee thereof shall determine within 28 days whether the application is complete. Whether an application is complete shall be determined as specified in LMC 18A.02.152 for permits, as specified in LMC 5.16.040 for adult cabaret licenses, as specified in LMC chapter 5.02 for SOB bookstores, and as specified in LMC 5.20.070 for SOBs applying for panoram, preview, picture arcade or peep show license. Should an application for a SOB license or permit be determined to be incomplete, the City Manager or designee shall notify the applicant in writing within the twenty-eight (28) day time frames stated above and describe the specific information necessary to complete the application. Should the City fail to request additional information or determine that an application is incomplete within the time frames specified in this section, the application shall be deemed complete and processed, accepted, denied, modified or conditioned within the time periods set forth in sub-sections (B) and (C) below.

B. Upon receipt of a completed application for a new SOB business license, the City Manager or designee thereof shall determine whether the application complies with all requirements of the Lakewood Land Use and Development Code, LMC Title 5 and this chapter. The City Manager or Designee shall determine compliance within thirty-five (35) days after receiving a completed application.

C. Upon receipt of a completed application for a permit related to a SOB land use, the City manager or designee thereof shall determine whether the permit application complies with all requirements of the Lakewood Land Use and Development Code and this title. The City Manager or designee shall determine compliance within one hundred and twenty (120) days of the receipt of the completed application based upon information contained within the application, the boundaries of the SOBO zone, and public records available to the City at the time of receipt of the application. Determinations related to SOB permit applications shall be processed in the same manner as any other completed permit application received by the City, however determinations regarding completed SOB permit applications must be made within one hundred and twenty (120) days of the receipt of the completed application.

D. Should the City fail to make a determination of zoning compliance or fail to specifically approve, condition, modify or deny a completed application for an SOB-related license or permit within the time frames set forth above, the SOB application will be assumed to be in conformity with all applicable zoning requirements. This presumption shall have the effect of making the application or permit a lawful and vested land use even if the City erred by failing to make a determination or by failing to deny, accept, condition or modify a license or permit.

E. Should a SOB that obtained a de facto license or permit as described above be found not to comply with applicable zoning or development regulations, the SOB land use shall obtain nonconforming status through the vested permit or application. (Ord. 358 § 6 (part), 2004.)

18A.40.445Regulations Within SOBO.

Newly established or created SOBs shall be allowed to locate anywhere within a SOBO except that all new SOBs must be located at least 1000 feet away from any SOB that lawfully existed prior to the receipt of the new application. New SOBs shall be required to locate at least 1000 feet away from existing conforming and existing nonconforming SOBs without regard to whether any nonconforming SOB is located within a SOBO. The 1000 foot distance separation shall be measured from the nearest building used for an existing SOB to the nearest portion of any building proposed to be used for a new SOB land use. (Ord. 358 § 6 (part), 2004.)

18A.40.450Expiration of Nonconforming Status.

A. Nonconforming SOBs shall be discontinued upon the occurrence of any one or more of the following:

1. Upon abandonment of a nonconforming SOB land use for six months or longer. For the purposes of this section, abandonment shall mean voluntary discontinuance or closure of the SOB land use or failure to apply for required permits to rebuild, remodel and/or reopen the business after it has been damaged or destroyed due to an involuntary event of fire, natural disaster or other casualty. For the purposes of this section, business license suspension or revocation shall not constitute a voluntary discontinuance or closure of a SOB.

2. Upon a change in use of the business to a use not defined as an SOB.

B. Nonconforming SOB land uses may apply for permits to make renovations or repairs as necessary or required for safety and health purposes. Applications for permits to perform renovations or repairs shall be processed, approved, modified, conditioned or denied in compliance with LMC 18A.02.835 and 18A.40.440.

C. To determine issues regarding whether a SOB has nonconforming status or has maintained nonconforming status pursuant to this section, the City Manager or designee shall rely upon the process and types of evidence listed in LMC 18A.02.845. (Ord. 358 § 6 (part), 2004.)

18A.40.455Notice and Order - Sexually Oriented Businesses.

A. Any SOB that becomes nonconforming upon the effective date of this Ordinance shall be given written notice of such nonconforming status by notice and order issued by the City Manager or designee pursuant to LMC 18A.40.435 and this section.

B. Whenever a completed application for a new SOB license or for a permit related to a SOB is denied, conditioned or modified, written notice shall be given to the applicant by notice and order issued by the City Manager or designee pursuant to this section.

C. A notice and order, and any amended or supplemental notice and order, shall be served upon the owner of the SOB either personally, by posting upon the property and personal service upon the manager or person responsible for the business during business hours, or by certified mail, postage prepaid, return receipt requested and addressed to the business owner at the address which appears on the most current license or permit application on file with the City.

D. Notice and orders issued pursuant to this section shall contain the following information:

1. The street address, when available, and a legal description sufficient for identification of the premises upon which the nonconforming business is located.

2. A statement clearly informing the applicant that an administrative determination has been made in regard to the SOB.

3. A description of or specific statement as to the reason(s) justifying the administrative determination.

4. A statement advising the SOB owner that an appeal may be made from the notice and order or from any action of the City Manager or designee to the City’s Hearing Examiner. Appeals shall be governed by the provisions of chapter 1.36 LMC. Failure to appeal shall constitute a waiver of all rights to an administrative hearing and appeal of the matter.

E. Timely Hearing of Appeals. Within forty-five (45) days of the receipt of a properly perfected appeal, the City Clerk shall set an appeal hearing before the Hearing Examiner and send notice of such hearing in writing to the SOB that requested the appeal. The Hearing Examiner hearing must be held within ninety (90) days after the receipt of an appeal under this chapter, unless the party, entity or person seeking appeal waives this requirement in writing. Upon closing of the record in such an appeal, the Hearing Examiner shall have ten (10) days within which to render a written decision upon the appeal.

F. General Business Licensing Provisions Referenced. The provisions of chapter 5.02 LMC shall apply to issues of licensing, zoning, development regulation, and notice and orders issued under this chapter to the extent that the provisions of chapter 5.02 LMC are not in specific conflict with the provisions set forth in this chapter. (Ord. 585 § 34, 2014; Ord. 358 § 6 (part), 2004.)

18A.40.460Definitions - Sexually Oriented Businesses.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

A. ADULT ENTERTAINMENT. Any entertainment that includes the following:

1. Any public exhibition, performance, dance or conduct of any type where such exhibition, performance, or dance involves a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered.

2. Any public exhibition, performance, dance or conduct of any type that is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:

a. Human genitals in a state of sexual stimulation or arousal.

b. Acts of human masturbation, sexual intercourse or sodomy.

c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.

d. Any exhibition, performance, dance or conduct which is intended to sexually stimulate any member of the public. This includes, but is not limited to, any such exhibition, performance, dance or conduct performed for, arranged with or engaged in with fewer than all members of the public for which payment is made, either directly or indirectly, for such performance, exhibition, dance or conduct.

Provided, however, that for the purposes of this chapter, adult entertainment activities do not include the following: plays, operas, musicals, or other dramatic works that are not obscene; classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene; or exhibitions, performances, expressions or dances that are not obscene. Provided, however, that the exemptions listed above shall not apply to sexual conduct defined in LMC 5.16.010(O), or the sexual conduct described in RCW 7.48A.010(2)(b)(ii) and (2)(b)(iii).

B. ADULT-ORIENTED MERCHANDISE. Any goods, products, commodities, or other wares, including but not limited to, videos, CD-ROMs, DVDs, magazines, books, pamphlets, posters, cards, periodicals or non-clothing novelties, which depict, describe or simulate the anatomical areas or sexual activities described under the definition of Adult Entertainment listed above.

C. ADULT RETAIL USE. A retail establishment which, for money or any other form of consideration, either:

1. Has, as a primary part of its business, the purpose or function of selling, exchanging, renting, loaning, trading, transferring, and/or providing for viewing or using, off the premises, any adult oriented merchandise; or

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

For the purposes of this chapter, a “primary part of its business” includes, but is not limited to, instances where a business provides or has advertising displays, merchandise, or product information reasonably visible to customers and other persons within the business facilities that shows, displays, or otherwise depicts adult-oriented merchandise or other sexually oriented business activities. Provided, however, that it shall not be considered a “primary part of its business” if such display, merchandise, or product information is only reasonably visible from within a limited portion of the business facility screened from general view, taking up not more than twenty (20) percent of the customer floor space, and where the access to the limited portion can be controlled to prevent accidental or incidental viewing of the display, merchandise, or product information by customers and other persons outside the limited portion of the business facilities.

Also, for the purposes of this chapter, a “substantial stock in trade” refers to, but is not limited to, instances where twenty (20) percent or more of the revenue generated by the business is derived from the sale, exchange, rental, loan, trade, transfer, and/or provision of adult-oriented merchandise; twenty (20) percent or more of the inventory of the business is adult-oriented merchandise; or twenty (20) percent or more of the customers of the business buy, exchange, rent, borrow, trade, transfer, and/or shop for adult-oriented merchandise in or from the business.

D. PANORAM. Any device which, for payment of a fee, membership fee, or other charge, is used to view, exhibit, or display a film, videotape, or videodisc. All such devices are denominated in this chapter by the terms “panoram” or “panoram device.” The terms panoram and panoram device as used in this chapter do not include games which employ pictures, views, or video displays; or state-regulated gambling devices.

E. SEXUALLY ORIENTED BUSINESS. A business that includes any one (1) or more of the following as defined herein: “adult entertainment facility,” “adult-oriented merchandise,” “adult retail use,” and/or “panoram”; or a similar facility, merchandise, or entertainment. (Ord. 358 § 6 (part), 2004.)

18A.40.470Prohibition and Public Nuisance.

All SOBs within the City of Lakewood shall be operated and maintained in compliance with this Ordinance. Any SOB not conducted and maintained in compliance with the SOBO requirements set forth in this Chapter is hereby declared a public nuisance subject to abatement and removal. (Ord. 358 § 6 (part), 2004.)

18A.40.480Provision for Conformance - Sexually Oriented Businesses.

If any portion of this section is deemed to be in conflict or inconsistent with any other provisions of the Lakewood Municipal Code, including, but not limited to other sections of this title, such other provisions shall be construed in conformity herewith; provided, that if such other provisions cannot be so construed, then the provisions of this section shall control, and such other provisions shall be deemed modified to conform herewith, for the purposes of this section only. (Ord. 358 § 6 (part), 2004.)

18A.40.500Planned Development District.
18A.40.510Purpose – Planned Development District.

A planned development district is a mechanism by which the City may permit a variety in type, design, and arrangement of structures; and enable the coordination of project characteristics with features of a particular site in a manner consistent with the public health, safety and welfare. A planned development district allows for innovations and special features in site development, including the location of structures, conservation of natural land features, protection of critical areas and critical area buffers, the use of low impact development techniques, conservation of energy, and efficient utilization of open space. (Ord. 651 § 25, 2016.)

18A.40.520Application for a Planned Development District (PDD).

A. A PDD is a process III application type and subject to all the procedural requirements applicable to this application type.

B. An application for approval of a PDD shall be submitted to the Community Development Department on forms provided by the Department along with established fees. For those planned development districts that include the division of land, a PDD application shall only be accepted as complete if it is submitted concurrent with an application for preliminary plat approval that includes all information required pursuant to LMC Title 17 and other applicable City regulations. Twenty-five copies of all associated application materials must be submitted in hard copy format. Digital application materials (e.g., CD copies) may fulfill a portion of the required hard copy applications as approved by the City.

An applicant for a PDD shall submit the following items to the City, unless the director finds in writing that one or more submittals are not required due to unique circumstances related to a specific development proposal:

1. A detailed narrative that includes:

a. A description detailing how the proposed development will be superior to or more innovative than conventional development methods as allowed under the City’s land use regulations and how the approval criteria set forth in LMC 18A.40.540 have been satisfied;

b. A description of how the proposed PDD will benefit the public in a manner greater than that achieved if the project was to be developed using conventional land use regulations;

c. A table illustrating the density and lot coverage of the overall development, with the proportion of the site devoted to open space clearly indicated;

d. A description of the types and numbers of dwelling units proposed and the overall land use density and intensity;

e. A description of the proposed open space and recreation areas including any proposed improvements, including specific details regarding the ownership and maintenance of such areas;

f. Detailed information regarding all proposed landscaping that is not included on an associated landscaping plan;

g. A description of the specific City standards as set forth in the underlying zoning district that the applicant is proposing for modification in accordance with Chapter 18A.30 LMC; and

h. A description of potential impacts to neighboring properties and how impacts have been mitigated through site design, screening, buffering and other methods;

2. A site plan with the heading “Planned Development District Site Plan” that includes any additional information that is not included on the standard preliminary plat map, including building footprints, proposed landscaping, open space and parks and/or recreational areas including trails and proposed setbacks;

3. Elevation drawings illustrating facade and building design elements, including height, overall bulk/mass and density and proposed residential design features that will provide for a superior development;

4. A conceptual landscape plan/map showing the proposed location and types of vegetation and landscaping. The landscape plan may also be incorporated into the PDD site plan and narrative;

5. A phasing plan, if the development will occur in distinct phases with a written schedule detailing the timing of improvements;

6. A draft development agreement, if proposed by the applicant or as required by the City; and

7. A draft of proposed covenants, conditions and restrictions demonstrating compliance with this chapter.

C. An applicant shall provide sufficient facts and evidence to enable the Hearing Examiner to make a decision. The established fee shall be submitted at time of application.

D. Notice of application shall be provided pursuant to LMC 18A.02.670. (Ord. 651 § 26, 2016.)

18A.40.530Public Hearing – Planned Development District.

A. The Hearing Examiner shall hold an open record public hearing on any proposed conditional use and shall give notice thereof in accordance with the procedures established pursuant to LMC 18A.02.700.

B. The hearing shall be conducted in accordance with the requirements of LMC 18A.02.720. (Ord. 651 § 27, 2016.)

18A.40.540Required Findings – Planned Development District.

A PDD shall only be granted after the Hearing Examiner has reviewed the proposed use and has made written findings that all of the standards and criteria set forth below have been met or can be met subject to conditions of approval:

A. The PDD is consistent with the comprehensive plan; and

B. The PDD, by the use of permitted flexibility and variation in design, is a development practice that results in better urban design features than found in traditional development. Net benefit to the City may be demonstrated by one or more of the following:

1. Placement, type or reduced bulk of structures, or

2. Interconnected usable open space, or

3. Recreation facilities, or

4. Other public facilities, or

5. Conservation of natural features, or

6. Conservation of critical areas and critical area buffers beyond, or

7. Aesthetic features and harmonious design, or

8. Energy efficient site design or building features, or

9. Use of low impact development techniques;

C. The PDD results in no greater burden on present and projected public utilities and services than would result from traditional development and the PDD will be served by adequate public or private facilities including streets, fire protection, and utilities; and

D. The perimeter of the PDD is compatible with the existing land use or property that abuts or is directly across the street from the subject property. Compatibility includes but is not limited to size, scale, mass and architectural design of proposed structures; and

E. Landscaping within and along the perimeter of the PDD is superior to that required by LMC 18A.50.425 and 18A.50.430, and landscaping requirements applicable to specific districts contained in LMC 18A.50.430, and enhances the visual compatibility of the development with the surrounding neighborhood; and

F. At least one major circulation point is functionally connected to a public right-of-way; and

G. Open space within the PDD is an integrated part of the project rather than an isolated element of the project; and

H. The design is compatible with and responds to the existing or intended character, appearance, quality of development and physical characteristics of the subject property and immediate vicinity; and

I. Roads and streets, whether public or private, within and contiguous to the site comply with guidelines for construction of streets; and

J. Streets and sidewalks, existing and proposed, are suitable and adequate to carry anticipated traffic within the proposed project and in the vicinity of the proposed project; and

K. Each phase of the proposed development, as it is planned to be completed, contains the required parking spaces, open space, recreation space, landscaping and utility area necessary for creating and sustaining a desirable and stable environment. (Ord. 651 § 28, 2016.)

18A.40.550Action of Hearing Examiner – Planned Development District.

A. In addition to demonstrating compliance with the criteria as determined by the Hearing Examiner, the applicant shall accept those conditions that the Hearing Examiner finds are appropriate to obtain compliance with the criteria.

B. In permitting a PDD, the Hearing Examiner may impose any or all of the following conditions:

1. Limit the manner in which the use is conducted, including restricting the time an activity may take place and restraints to minimize such environmental effects as noise, vibration, air pollution, glare and odor.

2. Establish a special yard or other open space or lot area or dimension.

3. Limit the height, size or location of a building or other structure.

4. Designate the size, number, location or nature of vehicle access points.

5. Increase the amount of street dedication, roadway width or improvements within the street right-of-way.

6. Designate the size, location, screening, drainage, surfacing or other improvement of parking or truck loading areas.

7. Limit or otherwise designate the number, size, location, and height of lighting of signs.

8. Limit the location and intensity of outdoor lighting or require its shielding.

9. Require screening, landscaping or another facility to protect adjacent or nearby property and designate standards for installation or maintenance of the facility.

10. Design the size, height, location or materials for a fence.

11. Protect existing trees, vegetation, water resources, wildlife habitat or other significant natural resources.

12. Require provisions for public access, physical and visual, to natural, scenic and recreational resources.

13. Require provisions for stormwater drainage including designating the size, location, screening, or other improvements of detention ponds and other facilities.

14. Impose special conditions on the proposed development to ensure that development is in conformance with the surrounding neighborhood and the intent and purpose of the zoning district classification.

15. Require such financial guarantees and evidence that any applied conditions will be complied with.

C. The decision of the Hearing Examiner is considered final and conclusive by the City. (Ord. 651 § 29, 2016.)

18A.40.570Permitted Modifications.

A. All zoning, site development, and subdivision requirements may be modified in a planned development district in the interest of the expressed purposes above except:

1. Permitted uses, administrative, and conditional uses;

2. Street setbacks on exterior streets in residential zones;

3. Surveying standards; and

4. Engineering design and construction standards of public improvements but not including street right-of-way width. (Ord. 651 § 31, 2016.)

18A.40.580Permitted Residential Density and Lot Sizes.

A. The number of dwelling units permitted in a planned development district may exceed the development standards found in LMC 18A.30.160. The permitted density shall be the maximum number of dwelling units allowed per gross acre (dua) and shall be as follows:

1. R1 zoning district: 2 dua;

2. R2 zoning district: 4 dua;

3. R3 zoning district: 7 dua;

4. R4 zoning district: 9 dua.

B. The minimum lot sizes for the residential zoning districts subject to the planned development district overlay shall be as follows:

1. R1 zoning district: 20,000 gsf;

2. R2 zoning district: 10,000 gsf;

3. R3 zoning district: 6,000 gsf;

4. R4 zoning district: 4,800 gsf.

C. The residential density and lot size standards of all other zoning districts are not subject to change. (Ord. 651 § 32, 2016.)

18A.40.610Binding Site Plan.

A binding site plan is required for all planned development districts and shall include:

A. All information required on a preliminary plat;

B. The location of all proposed structures;

C. A detailed landscape plan indicating the location of existing vegetation to be retained, location of vegetation and landscaping structures to be installed, the type of vegetation by common name and taxonomic designation, and the installed and mature height of all vegetation;

D. Schematic plans and elevations of proposed buildings with samples of all exterior finish material and colors, the type and location of all exterior lighting, signs and accessory structures;

E. Inscriptions or attachments setting forth the limitations and conditions of development;

F. An outline of the documents of the owners’ association, bylaws, deeds, covenants and agreements governing ownership, maintenance and operation of the planned development district shall be submitted with the binding site plan. Planned development district covenants shall include a provision whereby unpaid taxes on all property owned in common shall constitute a proportioned lien on all property of each owner in common. The City may require that it be a third party beneficiary of certain covenants with the right but not obligation to enforce association-related documents; and

G. The provisions ensuring the development will be in conformance with the site plan. (Ord. 651 § 35, 2016.)

18A.40.620Phased Development.

If a planned development district is planned to be completed in more than two years from the date of preliminary plat/site plan approval, the planned development district will be divided into phases or divisions of development, numbered sequentially in the order construction is to occur. The binding site plan for each phase shall be approved separately. Each division of development in a multiphase planned development district shall meet all the requirements of a planned development district independently. (Ord. 651 § 36, 2016.)

18A.40.630Required Certificates and Approvals.

Binding site plans shall include all the required certificates of a final plat. PDDs shall be subject to design review in accordance with LMC 18A.50.200 through 18A.50.241. (Ord. 651 § 37, 2016.)

18A.40.640Expiration.

Approval of a binding site plan expires unless recorded by the county auditor within three years from the date of approval. An applicant who files a written request with the City Clerk within 30 days of the expiration date shall be granted a one-year extension upon a showing of a good faith effort to file the site plan. (Ord. 651 § 38, 2016.)