Chapter 17.46
Conditional Land Use Permits and Variances
Sections:
17.46.050 Submittal requirements.
17.46.060 Washington State Environmental Policy Act review.
17.46.070 Conditional land use permit and variance review procedure.
17.46.075 Conditional land use permit and variance decision process.
17.46.080 Conditional land use permit decision criteria.
17.46.090 Variance decision criteria.
17.46.100 Limitation on authority to grant variances.
17.46.110 Public hearing notice.
17.46.120 Conduct of public hearings.
17.46.130 Limitation on refiling applications.
17.46.140 Appeal of examiner's decision to superior court.
17.46.150 Time limitation on conditional land use permits and variance.
17.46.160 Expiration of conditional land use permit.
17.46.180 Transfer of a conditional land use permit or variance.
17.46.190 Revocation of a conditional land use permit or variance.
17.46.010 Scope.
This chapter establishes the procedure and criteria the city will use in deciding applications for zoning conditional land use permits and zoning variances. (Ord. 1366 (part), 1995).
17.46.020 Applicability.
This chapter applies to all applications for zoning conditional land use permits and zoning variances. (Ord. 1366 (part), 1995).
17.46.030 Purposes.
(a) Conditional Land Use Permit Purpose. A conditional land use permit is a mechanism through which the city can determine if a certain use is appropriate in a particular location, and, if necessary, require special conditions on the development or on the use of land. The site specific review and the ability to require special conditions is intended to insure that designated uses or activities are compatible with other uses in the same zoning district and in the vicinity of the property for which the application is made.
(b) Variance Permit Purpose. A variance permit is a method of relief by allowing reduced setbacks, side yards, frontage requirements and lot sizes because of undue hardships by the enforcement of the requirements of this title. (Ord. 1366 (part), 1995).
17.46.040 Who may apply.
The property owner may apply for a conditional land use permit or a variance. (Ord. 1366 (part), 1995).
17.46.050 Submittal requirements.
(a) The administrator shall specify the application forms and submittal requirements including the type, detail and number of copies for a conditional land use permit and variance to be deemed complete and to be accepted for filing.
(b) The administrator may waive specific submittal requirements determined to be unnecessary for review of an application. (Ord. 1366 (part), 1995).
17.46.060 Washington State Environmental Policy Act review.
The Washington State Environmental Policy Act (SEPA) and the city of Montesano State Environmental Policy Act (SEPA) policies and procedures may apply to action taken under this chapter. Refer to Title 14 of the Montesano Municipal Code for the city of Montesano State Environmental Policy Act (SEPA) policies and procedures. (Ord. 1366 (part), 1995).
17.46.070 Conditional land use permit and variance review procedure.
(a) The applicant shall submit an application and any required fees to the administrator.
(1) The administrator shall review the application and determine if it is complete. The application shall not be deemed filed until the administrator determines the application is complete. The applicant may indicate on the application if they prefer the application to be considered by city council or referred directly to the hearing examiner. City council may grant the request or hear the request directly.
(2) The administrator may establish deadlines for applications. Deadlines shall not be established more than thirty days before the examiner’s hearing dates.
(3) The examiner may limit the number of applications to be considered at a meeting as part of the examiner’s rules of procedure.
(b) Within five days of the filing of the application, the administrator shall provide a copy of the application to the SEPA responsible official who makes SEPA determinations for conditional land use permit and variance applications. SEPA review shall then be conducted as provided by Title 14.
(c) After a SEPA exemption, SEPA determination of nonsignificance, or SEPA final environmental impact statement is issued for an application, the administrator shall notify property owners within three hundred feet of the applicant’s property and refer the application to the city council. Notification shall include the original application and date and time of the council meeting where the matter will be considered. There shall be no fee for such a request to be heard by the city council. The city council may act upon such an application or, by a majority vote of the council finding that technical expertise by a hearing examiner is appropriate, refer the matter to the hearing examiner. If referred by the city council to the examiner, the administrator shall schedule a public hearing for the next date upon which the examiner has scheduled hearings at which the application can be accommodated and notice given, and provide notice of the hearing on the application as provided in Section 17.46.110. Prior to filing the public notice of hearing examiner consideration, the applicant shall be informed of the hearing examiner fee schedule and the applicant’s responsibility for the appropriate fee. The applicant shall indicate agreement in writing to pay the hearing examiner fee prior to the matter being forwarded to the hearing examiner. Applicant shall pay all directly applicable publishing costs for advertising a public hearing in the paper of record when publishing is required by law.
(d) If the examiner conducts a public hearing on the application, the public hearing shall be conducted as provided in Section 17.46.120. At the hearing, the examiner may request such additional information as is reasonably necessary to evaluate the application. (Ord. 1642 §1, 2022; Ord. 1366 (part), 1995).
17.46.075 Conditional land use permit and variance decision process.
(a) After the applicable council meeting or public hearing has concluded, the city council or hearing examiner shall issue a decision in relation to the application.
(b) The city council or examiner, as applicable, shall issue a decision upon the application within thirty-two days of the initial public hearing or any extension thereof or the date upon which the written record is closed, whichever shall be later, unless the applicant and any adverse parties agree in writing to an extension of time.
(1) Decisions on applications for conditional land use permits shall be based on the decision criteria in Section 17.46.080. Decisions on applications for variances shall be based on the decision criteria in Section 17.46.090 and the limitation on the authority to grant variances in Section 17.46.100.
(2) The city council or examiner may condition the proposal.
(3) If the city council or examiner contemplates approving the application modified to such an extent that it results in a proposal not reasonably foreseeable from the description of the proposal contained in the hearing notice, the city council or examiner may hold a new hearing on the proposal as modified before approving the application. Notice of his hearing shall be provided as required by Section 17.46.110.
(c) The city council’s or examiner’s written decision shall include findings of fact and conclusions which support the decision and any required conditions.
(d) Notice of Appeal. Where the project is not exempt from SEPA, the administrator shall mail official notice of the date and place for making an appeal to the applicant, any parties to an administrative appeal, and any persons who have requested notice of decisions on the proposal after the decision on the application is made. The notice must include the following: a statement of that the appeal of the decision on the variance or conditional use must be filed with superior court for Grays Harbor County within thirty days of the decision and a statement that the appeal of the SEPA decision and a statement that the appeal of the SEPA decision must be filed with superior court for Grays Harbor County within thirty days of the date the notice is mailed or, if the notice is hand delivered, delivered. Where SEPA issues are first raised in an administrative appeal, the notice of appeal must also state that any person wishing to raise SEPA issues in a judicial appeal must give notice of the appeal to the city of Montesano responsible official within thirty days of the variance or conditional use decision date as required by WAC 197-11-680(4)(d) or its successor. The address of the responsible official must be included in the notice. The notice of appeal may be appended to the permit or decision document, or may be separate.
(e) Effect of Decision.
(1) The decision of the city council or examiner on the application is the final decision of the city.
(2) The city council’s or examiner’s decision shall not be reconsidered, except as a new application. See Section 17.46.130 for time limits for filing new applications.
(3) The decision of the city council or examiner on the application may be appealed to the superior court as provided in Section 17.46.140.
(f) Commencement of Activity. The applicant or any other party authorized to conduct activities or uses by the decision may commence activity or obtain other required approvals authorized by the decision of the examiner on the application seven days after the decision on the application. Activity commenced before the expiration of the full appeal period provided in Section 17.46.140 is at the sole risk of the applicant or other party. The city of Montesano and any of the city’s officers, agents, or employees shall not incur any liability or risk. (Ord. 1642 §2, 2022).
17.46.080 Conditional land use permit decision criteria.
The city council or examiner may approve or approve with conditions or modifications an application for a conditional land use permit if the proposal substantially complies with each of the following criteria:
(1) The conditional land use is harmonious and appropriate in design, character and appearance with the existing or intended character and quality of development in the immediate vicinity of the subject property and with the physical characteristics of the subject property.
(2) The conditional land use is compatible with the existing and potential uses in the general area.
(3) The conditional land use will be served by adequate public facilities including streets, fire protection, water, stormwater facilities, and sanitary sewer.
(4) The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property.
(5) The conditional land use is in accordance with the Montesano comprehensive plan.
(6) The conditional land use complies with the requirements of the zoning district in which it is located. A conditional land use permit shall not be used to reduce the requirements of the zoning district in which the use is to locate. The proposed use must be listed as a conditional land use in the zoning district in which it would be located.
(7) The proposal complies with all other applicable criteria and standards of the Montesano Municipal Code. (Ord. 1642 §3, 2022; Ord. 1366 (part), 1995).
17.46.090 Variance decision criteria.
The city council or examiner as applicable may approve or approve with conditions or modifications an application for a variance if each of the following criteria are met:
(1) The variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and the zoning district in which the property on behalf of which the application was filed is located.
(2) The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges allowed to other properties in the vicinity and the zoning district in which the subject property is located.
(3) The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and in the zoning district in which the subject property is located.
(4) The special circumstances of the subject property made the strict enforcement of the provisions of the zoning regulations an unnecessary hardship to the property owner or lessee.
(5) The variance is the minimum necessary to fulfill the purpose of the variance and the need of the applicant.
(6) The variance is consistent with the purpose and intent of the zoning regulations.
(7) The variance is in accord with the Montesano comprehensive plan. (Ord. 1642 §4, 2022; Ord. 1366 (part), 1995).
17.46.100 Limitation on authority to grant variances.
The city council or examiner shall not grant a variance for the following purposes:
(1) To allow a use other than a use specifically listed as a permitted use or conditional use in the zoning district in which the subject property is located. Variances shall not be approved to allow an unlisted or unclassified use in any zoning district;
(2) Any provision of the zoning regulations which by the terms of the zoning regulations is not subject to a variance;
(3) Any administrative or procedural provision of the zoning regulations. (Ord. 1642 §5, 2022; Ord. 1366 (part), 1995).
17.46.110 Public hearing notice.
(a) Content of the Public Notice. The administrator shall prepare notice for all public hearings conducted by the examiner. The notice may include the following information:
(1) The name of the applicant and, if applicable, the project name;
(2) The street address of the subject property and a description of the property in nonlegal terms sufficient to identify the location;
(3) A brief description of the proposal and any provision of the zoning regulations for which an application for a variance or conditional land use has been made;
(4) If the application is not exempt from SEPA, the SEPA determination on the application and a note to the effect that comments on the SEPA determination and SEPA documents may be made at the hearing. The time period for receiving comments on the SEPA documents must be at least fifteen days from the day the SEPA determination is made;
(5) The date, time and place of the public hearing;
(6) A statement of the right of any person to participate in the public hearing as provided in Section 17.46.120 and the ways they may participate;
(7) A statement that appeals of the examiner’s decision may only be made within thirty days of the date of the examiner’s decision on the application as provided in Section 17.46.140.
(b) Time of Notice. The administrator shall mail and publish the notice at least ten days before the hearing.
(c) Means of Notice. The administrator shall provide notice for all public hearings in the following manner:
(1) Publishing notice of the public hearing in a newspaper of general circulation within the city;
(2) Mailing notice of the public hearing to the applicant, the property owner, and each person identified by the real property records of the Grays Harbor County assessor as the owner of real property within three hundred feet of any boundary of the subject property and of any contiguous property in the applicant’s ownership;
(3) Posting the notice in two places open to the public in the city;
(4) Failure to receive a properly mailed notice shall not affect the validity of any testimony or the legality of any action taken. (Ord. 1642 §6, 2022; Ord. 1366 (part), 1995).
17.46.120 Conduct of public hearings.
(a) Who May Participate. Any person may participate in the public hearing.
(b) How to Participate. Any person may participate in the public hearing in either or both of the following ways.
(1) By submitting written comments to the administrator before the public hearing. The administrator shall transmit all written comments received before the public hearing to the examiner no later than the public hearing.
(2) By submitting written comments or making oral comments to the examiner at the public hearing.
(c) Hearing Record.
(1) The administrator shall make an electronic sound recording of each hearing.
(2) Whenever practicable, all documentary evidence presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings.
(d) Continuation of Hearing. The examiner may continue the hearing until a subsequent date and may keep the hearing or written record open to take additional information up to the point the decision is made.
(e) Time Limits. The examiner may place reasonable and equitable limitations on testimony, the presentation of evidence and arguments, and questions so the matter at issue may be heard and decided without undue delay. (Ord. 1366 (part), 1995).
17.46.130 Limitation on refilinq applications.
After a final decision denying an application, the administrator shall not accept any further application for substantially the same property involving substantially the same proposal within one year from the date of the denial decision. (Ord. 1366 (part), 1995).
17.46.140 Appeal of examiner's decision to superior court.
(a) Who May Appeal. Any person may appeal the decision of the examiner to superior court.
(b) Time to Appeal. The decision of the examiner must be appealed to superior court no more than thirty calendar days following the date of filing of the examiner's decision on the application with the office of the clerk-controller or is thereafter barred. (Ord. 1366 (part), 1995).
17.46.150 Time limitation on conditional land use permits and variance.
A conditional land use permit or variance becomes null and void if not exercised within the time limit specified in the permit or variance or, if no time limit is specified, within one year of the date of approval by the examiner or the date of the final resolution of any appeals, whichever is later. (Ord. 1366 (part), 1995).
17.46.160 Expiration of conditional land use permit.
A conditional land use permit or variance shall become null and void if the deviation, use or activity authorized by the permit has been abandoned or discontinued for one year or more, except in the following cases: (1) provided, that if the property with a conditional use permit is in a foreclosure process, then the authorized representative of the financial institution holding the note or other financial instrument on the property may submit a request for an extension to the administrator. That extension shall be granted for a period of one year from the completion date of the foreclosure process; or (2) provided, that if the use or variance has not been implemented within one year of the grant, then the applicant or authorized representative may submit a request for an extension to the administrator. That extension shall be granted for a period of six months. In the event that, prior to the end of the six-month extension, the use or variance which was the subject of the permit or grant has still not yet been implemented, then the holder may apply to the administrator for an additional six-month extension.
Such application shall be submitted prior to the termination of the initial six-month extension and shall be decided at the discretion of the administrator. In the event that the administrator determines it appropriate to consider the grant upon a change in condition, then a hearing shall be required with notice given as if it were an initial application. (Ord. 1621 §1(B), 2019: Ord. 1366 (part), 1995).
17.46.170 Assurance device.
(a) General.
(1) Where authorized by this title, the decision-making body may require an assurance device to ensure compliance with the requirements of this title.
(2) The assurance device may be a bond, nonrevocable letter of credit, set-aside letter, assignment of funds, certificate of deposit, bond, deposit account, or other readily accessible source of funds in a form acceptable to the city attorney.
(3) Interest from any interest-bearing form of assurance device will accrue to the benefit of the depositor.
(4) The assurance device shall specify the date and time by which the work which it guarantees shall be completed.
(5) The assurance device shall specify the date and time by which the city can negotiate the device to obtain the funds to do the work it guarantees. In all cases the date and time shall be at least sixty days after the deadline set for completion.
(b) Amount of Assurance Device. The city engineer shall determine the amount of the assurance device as follows:
(1) For a performance device the amount will be one hundred fifty percent of the cost of the work or improvements covered by the assurance device based on estimated costs, including engineering and other related costs, immediately following the expiration of the device together with the city's cost of obtaining funds from the assurance device and incurred in administering the project.
(2) For a maintenance device the amount will not be less than twenty percent of the cost of replacing the material covered by the assurance device based on estimated costs, including engineering and other related costs, on the last day covered by the device together with the city's cost of obtaining funds from the assurance device and incurred in administering the project.
(3) The city engineer may consult with one or more persons with special knowledge or expertise in determining the cost of work or improvements covered by an assurance device in a and b above. The applicant shall pay the actual costs of this consultation prior to the city engineer accepting the device.
(c) In each case where the city requires or allows an applicant to establish an assurance device, the owner of subject property shall give the city a signed notarized irrevocable license to run with the property to allow the employees, agents or contractors of the city to go on the subject property for the purpose of inspecting and, if necessary, doing the work or making the improvements covered by the device. The applicant shall file this license with the administrator.
(d) Release of Assurance Device.
(1) After the work or improvements covered by a performance assurance device have been completed to the satisfaction of the administrator or, at the end of the time covered by a maintenance assurance device, the applicant may request the administrator to release the device.
(2) The administrator shall release such device as expeditiously as possible after receipt of a request for release after confirming that all provisions of the agreement have been fulfilled.
(e) Use of Proceeds--Notice to Property Owner. If during the period of time covered by a maintenance assurance device or after the date by which the required work or improvements are to be completed under a performance assurance device, the administrator determines that the work or improvements have not been complied with, he/she shall notify the applicant. The notice must include the following information:
(1) The work that must be done or the improvement that must be made to comply with the requirements and the assurance device;
(2) The amount of time that the applicant has to commence and complete the required work or improvements;
(3) That, if the work or improvements are not commenced and completed within the time specified, the city will use the proceeds of the assurance device to have the required work or improvements completed.
(f) Use of Proceeds--Work by the City. If the work or improvements covered by the assurance device are not completed within the time specified in the notice given under subsection (e) of this section, the city shall obtain the proceeds of the device and do the work or make the improvements covered by the device. The city may either have employees of the city do the work or make the improvements or, by using procurement procedures established by law, have a contractor do the work or make the improvements.
(g) Use of Proceeds--Refund of Excess, Charge for All Costs. The property owner is responsible for all costs incurred by the city in doing the work and making the improvements covered by the assurance device. The city shall release or refund any proceeds of a performance device after subtracting all costs for doing the work covered by the device and the costs of obtaining the proceeds of the device. The owner of subject property shall reimburse the city for any amount expended by the city that exceeds the proceeds of the device. The city shall have a lien against the subject property for the amount of any excess.
(h) Itemized Statement. In each case where the city uses any of the proceeds of the device, it shall give the owner of the subject property an itemized statement of all proceeds and funds used. (Ord. 1366 (part), 1995).
17.46.180 Transfer of a conditional land use permit or variance.
An approved conditional land use permit or variance may be transferred from the original applicant to any successors in interest to the applicant for the property for which the conditional land use permit or variance was approved; provided, that all of the conditions and requirements of the approved permit or variance shall continue in effect as long as the use is pursued. (Ord. 1366 (part), 1995).
17.46.190 Revocation of a conditional land use permit or variance.
(a) Authority. The examiner shall have the power to revoke or modify an approved conditional land use permit or variance.
(b) Criteria for Revocation. The examiner may revoke or modify a conditional land use permit or variance if the examiner finds that one or more of the following criteria are met:
(1) The approval was obtained by fraud;
(2) The permit or variance is being exercised contrary to the terms or conditions of approval or in violation of law;
(3) The use or activity for which approval was granted is being exercised so as to be detrimental to the public health, safety, or welfare.
(c) Procedure for Revocation.
(1) Initiation. The examiner may initiate the revocation or modification of a permit or variance, if the examiner determines there is sufficient cause to hold a hearing on revocation of the permit or variance. City staff or other individuals who are aggrieved may request, in writing, that the examiner initiate revocation of a permit or variance.
(2) Notice of Public Hearing. Notice shall be provided as required by Section 17.46.110.
(3) Hearing. The examiner shall hold a public hearing before deciding whether to revoke or add conditions to the permit or variance. The public hearing shall be conducted as provided in Section 17.46.120. At the hearing, the examiner may request such additional information as is reasonably necessary to evaluate whether the permit or variance should be revoked.
(4) Decision. After the public hearing has concluded, the examiner shall decide whether to revoke or add conditions to the permit or variance.
(i) The examiner shall issue a written decision on the revocation within thirty days of the closing of the public hearing or the closing of the written record, whichever shall be later, unless the holder of the permit or variance, as the case may be, and any complainant agree in writing to an extension of time.
(ii) The decision shall be based on the decision criteria in subsection (b) of this section.
(iii) The examiner may add conditions to the permit or variance.
(iv) If the examiner's decision is to revoke the permit or variance, the examiner's decision may require restoration or reclamation of the property and may set time limits for the completion of these activities.
(v) The examiner shall adopt findings of fact and conclusions which support the decision and any required conditions.
(vi) The decision of the examiner and the findings of fact and conclusions shall be in writing, filed with the office of the clerk-controller and mailed to the permit holder and complainant by the administrator within seven days of the date of the filing of the decision.
(d) Effect of Decision.
(1) The decision of the examiner on the revocation is the final decision of the city.
(2) The examiner's decision shall not be reconsidered, except as a new application.
(3) The decision of the examiner on the revocation may be appealed to the superior court as provided in Section 17.46.140.
(4) If the examiner's decision revokes the permit or variance, all activity authorized by the permit or variance shall immediately cease, unless the examiner, in the decision, grants a period of time to complete the activity or reclaim the site or a court authorizes continued operation during an appeal. (Ord. 1366 (part), 1995).