Chapter 18.44
DECISION CRITERIA

Sections:

18.44.010    Purpose.

18.44.020    Reserved.

18.44.030    Temporary use permit.

18.44.040    Variance.

18.44.042    Limitation on authority.

18.44.045    Administrative variance.

18.44.047    Reasonable use exception – Public projects.

18.44.048    Reasonable use exception – Private projects.

18.44.050    Conditional use permit.

18.44.052    Utility facilities – Regional.

18.44.053    Essential public facilities.

18.44.055    Wireless communications facility (“WCF”) permit.

18.44.060    Special use permit.

18.44.070    Zone reclassification.

18.44.080    Home occupation permit.

18.44.090    Home industry permit.

18.44.010 Purpose.

The purposes of this chapter are to allow for consistent evaluation of land use applications and to protect nearby properties from the possible effects of such requests by:

A. Providing clear criteria on which to base a decision;

B. Recognizing the effects of unique circumstances upon the development potential of a property;

C. Avoiding the granting of special privileges;

D. Avoiding development which may be unnecessarily detrimental to neighboring properties;

E. Requiring that the design, scope and intensity of development is in keeping with the physical aspects of a site and adopted land use policies for the area; and

F. Providing criteria which emphasize protection of the general character of neighborhoods. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.020 Reserved.

18.44.030 Temporary use permit.

A temporary use permit shall be granted by the city, only if the applicant demonstrates that:

A. The proposed temporary use will not be materially detrimental to the public welfare;

B. The proposed temporary use is compatible with existing land use in the immediate vicinity in terms of noise and hours of operation;

C. The proposed temporary use, if located in a resource zone, will not be materially detrimental to the use of the land for resource purposes and will provide adequate off-street parking if necessary to protect against compacting soils;

D. Adequate public off-street parking and traffic control for the exclusive use of the proposed temporary use can be provided in a safe manner; and

E. The proposed temporary use is not otherwise permitted in the zone in which it is proposed. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.040 Variance.

A. Complete Application. Applications for a variance shall be considered fully complete once the department determines that the application contains the following materials:

1. Name of applicant and project.

2. Variance Application Request. Description why the variance that is requested is necessary.

3. Associated Development Applications. List any development application submitted concurrently.

4. If variance request pertains to the location of site improvements or site features, a site plan shall be submitted which includes:

a. The boundaries of existing and/or proposed lots, tracts and easements associated with the site.

b. Existing and proposed site improvements and structures.

c. The location and identification of critical areas (e.g., wetlands, streams, steep slopes) within 300 feet of any property line.

d. Adjacent streets, access easements and locations and dimensions of driveways providing access to the site.

e. The location of proposed or existing parking areas on the site.

f. The location of utilities and drainage systems that serve the site.

g. The location and size of water bodies and drainage features on the site.

h. Locations of significant trees identified to be retained per NMC 18.16.130.

5. Statement Letter. Description of the requested variance, including the specific code sections from which the variance is requested.

6. If the variance request pertains to the height, scale, bulk, or architectural features of a structure or building, a scaled drawing of the structure or building as seen in elevation view (elevation drawing) must be provided.

B. Decision Criteria. A variance from the provisions of this title may be granted by the city if:

1. The variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and land use district of the subject property;

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 permitted to other properties in the vicinity and in the land use district of the subject property;

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 land use district in which the subject property is located;

4. The variance is not inconsistent with the city of Newcastle comprehensive plan; and

5. The variance is the minimum necessary to grant relief to the applicant. (Ord. 2020-611 § 13; Ord. 2000-210 § 64; Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.042 Limitation on authority.

The decision maker may not grant a variance to:

A. The provisions of Chapter 18.08 NMC establishing the allowable uses in each land use district; or

B. The provisions of NMC Title 19 or any other procedural or administrative provision of the Newcastle Municipal Code; or

C. Any provision of the Newcastle Municipal Code within the primary approval jurisdiction of another decision maker as established by the Newcastle Municipal Code; or

D. Any provision of the Newcastle Municipal Code which, by the terms of that code, is not subject to a variance; or

E. The provisions of Chapter 18.24 NMC, Environmentally Critical Areas; or

F. Conditions established during prior permit review or from provisions enacted pursuant to former Chapter 18.38 NMC, Transitional, Property-Specific Development Standards and Special District Overlays. (Ord. 97-153 § 65).

18.44.045 Administrative variance.

The land use and planning administrator is authorized to review and grant or deny requests for variances from any required standards relating to property on which an existing residence is located, in accordance with the criteria set forth in NMC 18.44.040 and the review procedures set forth in NMC Title 19. (Ord. 97-153 § 64; Ord. 97-151 § 1; Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.047 Reasonable use exception – Public projects.

Any public agency or city department claiming that strict application of Chapter 18.24 NMC, Critical Areas, would deny construction of a public project may be granted a critical areas reasonable use exception – public project subject to the criteria and process listed below:

A. The agency or utility shall apply to the department and shall make available to the department other related project documents such as permit applications to other agencies, special studies and SEPA documents. The department shall prepare a recommendation to the hearing examiner.

B. The hearing examiner shall review the application and conduct a public hearing pursuant to the provisions of applicable city ordinances. The hearing examiner shall make a recommendation to the city council based on the following criteria:

1. There is no other practical alternative to the proposed development with less impact on the critical area; and

2. The proposal minimizes the impact on critical areas.

C. This exception shall not allow the use of the following critical areas for regional retention/detention facilities except where there is a clear showing that the facility will protect public health and safety or repair damaged natural resources:

1. Class 1 streams or buffers;

2. Category I wetlands or buffers with plant associations of infrequent occurrence; or

3. Category I or II wetlands or buffers which provide critical or outstanding habitat for herons, raptors or state or federal designated endangered or threatened species unless clearly demonstrated by the applicant that there will be no impact on such habitat.

D. Complete Application. Applications for a reasonable use exception – public shall be considered fully complete once the department determines that the application contains the following materials:

1. Name of applicant and project.

2. Reasonable Use Exception Request. Description why the reasonable use exception that is requested is necessary for the public project to be built.

3. Associated Development Applications. List any development application submitted concurrently.

4. Statement letter responding to criteria in subsection (B) of this section. (Ord. 2020-611 § 14; Ord. 2016-538 § 2 (Exh. 3)).

18.44.048 Reasonable use exception – Private projects.

Any private property owner who claims that strict application of Chapter 18.24 NMC, Critical Areas, would deny all reasonable economic use of their property may be granted a critical areas reasonable use exception – private property subject to the criteria and process listed below:

A. The applicant shall apply to the department, and the department shall prepare a recommendation to the hearing examiner. The applicant may apply for a reasonable use exception without first having applied for a variance if the requested exception includes relief from standards for which a variance cannot be granted pursuant to the provisions of Chapter 18.44 NMC.

B. The hearing examiner shall review the application in consultation with the city attorney and shall conduct a public hearing pursuant to the provisions of the applicable city ordinances. The hearing examiner shall make a recommendation to the city council based on the following criteria:

1. The application of this chapter would deny all reasonable use of the property; and

2. There is no other reasonable use with less impact on the critical area; and

3. The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site and is consistent with the general purposes of this chapter and the public interest; and

4. Any alterations permitted to the critical area resulting from the proposed use and site design shall be the minimum necessary to allow for reasonable use of the property; and

5. The inability to derive reasonable economic use is not the result of the applicant’s actions or that of a previous property owner, such as by segregating or dividing the property and creating an undevelopable condition.

C. Any authorized alteration of a critical area under this section shall be subject to conditions established by the city council including, but not limited to, mitigation under an approved mitigation plan.

D. Complete Application. Applications for a reasonable use exception – private shall be considered fully complete once the department determines that the application contains the following materials:

1. Name of applicant and project.

2. Reasonable Use Exception Request. Description why the reasonable use exception that is requested is necessary.

3. Associated Development Applications. List any development applications submitted concurrently.

4. Statement letter responding to criteria in subsection (B) of this section. (Ord. 2020-611 § 15; Ord. 2016-538 § 2 (Exh. 3)).

18.44.050 Conditional use permit.

A. Complete Application. Applications for a conditional use permit shall be considered fully complete once the department determines that the application contains the following materials:

1. Name of applicant or project.

2. Description of the use for which the conditional use permit is requested and if the conditional use pertains to new development on the site, or to existing development.

3. Associated Development Applications. List any development applications submitted concurrently.

4. Statement letter responding to criteria in subsection (B) of this section.

B. A conditional use permit shall be granted by the city, only if the applicant demonstrates that:

1. The conditional use is designed in a manner which is compatible with the character and appearance of the existing or proposed development in the vicinity of the subject property;

2. The location, size and height of buildings, structures, walls and fences, and screening vegetation for the conditional use shall not hinder neighborhood circulation or discourage the permitted development or use of neighboring properties;

3. The conditional use is designed in a manner that is compatible with the physical characteristics of the subject property;

4. Requested modifications to standards are limited to those which will mitigate impacts in a manner equal to or greater than the standards of this title;

5. The conditional use is such that pedestrian and vehicular traffic associated with the use will not be hazardous or conflict with existing and anticipated traffic in the neighborhood; and

6. The conditional use will be supported by adequate public facilities or services and will not adversely affect public services to the surrounding area or conditions can be established to mitigate adverse impacts on such facilities. (Ord. 2020-611 § 16; Ord. 97-153 § 66; Ord. 97-153 § 38; Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.052 Utility facilities – Regional.

Proposals that include new or expansions to existing utility facility – regional shall demonstrate compliance with the following criteria in addition to the conditional use permit criteria listed in NMC 18.44.050. For the purposes of this section expansions shall include a modification of an existing regional utility facility by an increase in the size, height, impervious coverage, floor area, or parking area of the facility by greater than 10 percent.

A. Prior to submittal of the application for conditional use permit, the applicant shall identify a minimum of three alternative site options located within or outside Newcastle’s city limits that will meet the system needs for the proposed new or expanding utility facility. At least one of the alternative sites identified by the applicant shall be located in the land use district to be primarily served by the proposed utility facility – regional. The siting analysis shall include the following:

1. Description of alternative sites.

2. Map of the location of the alternative sites in relation to residential zones within the city.

3. Description of which of the sites analyzed are considered practical or feasible alternatives by the applicant, and which of the sites analyzed are not considered practical or feasible, together with supporting information that justifies the conclusions reached. For sites located in a residential zone, the applicant shall:

a. Describe how the proposed utility facility – regional location is a consequence of needs or demands from customers located within the city or service area; and

b. Describe why the operational needs of the facility require locating the utility facility – regional at the proposed site.

4. Technology Considered for the Preferred Site Alternative. Upon submittal of the conditional use permit application required, the applicant shall:

a. Describe the range of technologies considered for the proposed utility facility – regional;

b. Describe how the proposed utility facility – regional provides reliability to customers served;

c. Describe components of the proposed utility facility – regional that relate to system reliability; and

d. Describe how the proposed utility facility – regional includes technology best suited to mitigate impacts on surrounding properties.

B. A public involvement process expanded from that otherwise required by NMC Title 19 shall be required and shall be conducted and paid for by the applicant. The purpose of the public involvement process is to involve the persons within the zone of likely and foreseeable impacts, and to determine potential mitigation measures that would make siting of that utility facility – regional more acceptable.

1. The applicant shall propose an acceptable public involvement plan to be reviewed and approved by the community development director.

2. The public involvement process shall be initiated within 45 days of the issuance of a notice of application.

3. A public involvement process conducted prior to submittal of an application to the city may be considered to satisfy all or part of the public involvement process requirement at the discretion of the community development director.

C. In addition to meeting the CUP decision criteria, the following criteria shall be used to make a determination on the application:

1. The impact of the utility facility – regional including the design and operation on the surrounding uses, the environment and the city has been minimized;

2. The design, use, and operation of the utility facility – regional complies with applicable guidelines, rules, regulations or statutes adopted by state law, or any agency or jurisdiction with authority;

3. The design, use and operation of the utility facility – regional complies with all applicable safety standards and engineering practices, including interactions with all other collocated utilities in regional corridors or facilities;

4. When a proposed regional utility facility is being collocated with an existing utility facility, the applicant shall provide a copy of a complete application package to the existing utility provider for comment, and said comments shall be provided to the city;

5. The applicant shall demonstrate that an operational need exists that requires the location or expansion at the proposed site;

6. The applicant shall demonstrate that the proposed utility facility – regional improves reliability to the customers served and reliability of the system as a whole, as certified by the applicant’s licensed engineer;

7. The proposal considers possible mitigation measures that can be developed which would make siting the utility facility – regional within the community more acceptable.

D. The city may impose conditions relating to the location, development, design, use, or operation of a utility facility – regional to mitigate environmental, public safety, or other identifiable impacts. Mitigation measures may include, but are not limited to, natural features that may serve as buffers, or other site design elements such as fencing and site landscaping.

E. The city may require the applicant pay for independent technical review by a consultant retained by the city for review of materials submitted by the applicant to demonstrate compliance with the requirements of the alternative siting analysis, conditional use criteria, and decision criteria for utility facility – regional in this section. Based on such independent technical review, the director may recommend and the hearing examiner may impose conditions to address and mitigate the regional utility facilities’ impacts to the city, including but not limited to public safety, aesthetics, landscaping and tree removal. The authority to require mitigation includes, but is not limited to, requiring setbacks from other utility facility – regional or land uses as may be determined necessary for public safety. (Ord. 2016-541 § 2 (Exh. 1)).

18.44.053 Essential public facilities.

A. Purpose and Intent. The purpose of this section is, as required by state law, to provide a process to site necessary public uses that may otherwise be difficult to site as defined under NMC 18.06.217.

B. Applicability. This section establishes a process for identifying and siting an essential public facility. This section provides a process for permitting those uses which qualify as essential public facilities under the criteria set forth below. A proposal may be reviewed as an essential public facility under this section when the applicant makes a written request for such review to the community development director or when the director requires that a proposal be reviewed as an essential public facility.

A proposal shall not be defined as or processed as an essential public facility where a specific land use is otherwise identified and regulated in the land use charts located in Chapter 18.08 NMC, Permitted Uses.

A proposal qualifies as an essential public facility when:

1. The facility meets the definition of essential public facility (NMC 18.06.217);

2. The facility is a type difficult to site because of one of the following:

a. The facility needs a type of site of which there are few sites;

b. The facility can locate only near another public facility; or

c. The facility is of a type that has been difficult to site in the past;

3. The facility is on a Washington State, King County, or city list of essential public facilities.

C. Process. The process for approval of an essential public facility shall be a Type III as set forth in NMC 19.07.030.

D. Review Process – Alternative Sites/Public Involvement.

1. An applicant may have one or more alternative sites considered at the same time during this process.

2. The community development director has the authority to require the consideration of sites outside the city of Newcastle, except where the facility is a state or regional facility for which a siting decision has already been made.

3. A public involvement process shall be required. The purpose of the public involvement process is to involve the persons within the zone of likely and foreseeable impacts, and to assist in the development of potential mitigation or modifications which would make siting of that facility more acceptable.

a. The applicant shall propose an acceptable public involvement process to be reviewed and approved by the community development director.

b. Public involvement activities shall be conducted by and paid for by the applicant.

c. The public involvement process shall be initiated by the applicant as early as feasibly possible.

4. The community development director may require a multi-jurisdictional review process if the facility serves a regional, countywide, statewide, or national need, if such a process has not been conducted prior to submittal of the application. If this process is required, the applicant shall design an acceptable process to be reviewed and approved by the director. If such a process has already been conducted, no additional multi-jurisdictional process will be required. Applicants shall be required to pay for any process conducted.

5. An analysis of the facility’s impact on city finances shall be undertaken.

E. Decision Criteria.

1. Except where the facility is a state or regional facility for which a siting decision has already been made, alternative sites covering the service area of the proposed facility must be considered, and the site proposed must be the most appropriate site taking into consideration the requirements of the facility and the impacts on surrounding uses and the environment;

2. A determination must be made that there is a public need for the facility, unless the facility is a state or regional facility for which need has already been established;

3. The impact of the facility on the surrounding uses and environment, the city, and the region must be minimized;

4. A forecast of the future needs for the essential public facility;

5. Conditions and/or mitigation measures relative to the design and/or operation of the facility must be identified and imposed to make the facility compatible with the surrounding uses and the environment to the extent practicable;

6. Mitigation measures must be developed that would make siting the facility within the community more acceptable;

7. A determination must be made as to whether the factors that make the facility difficult to site can be modified to increase the range of available sites or to minimize impacts on affected areas and the environment, except where the facility is a state or regional facility for which a siting decision has already been made;

8. The proposal shall comply with any applicable mitigation measures identified in the financial impact analysis;

9. The proposed facility must be consistent with the Newcastle comprehensive plan, unless the comprehensive plan would preclude the location of such facilities anywhere within the city; and

10. The facility must comply with any applicable state siting and permitting requirements.

F. Conditions. The city shall not deny or condition an essential public facility in such a manner as to preclude the siting or expansion of any state or regional essential public facility in the city. The city may impose conditions on the location, design, use or operation of the essential public facility within the scope of the city’s authority in order to mitigate identified environmental, public safety or other impacts of the essential public facility. (Ord. 2016-541 § 2 (Exh. 1)).

18.44.055 Wireless communications facility (“WCF”) permit.

A wireless communications facility (“WCF”) permit shall only be considered in the nonresidential zones in the city (all zones except R and MU-R zones) and shall be granted only if the performance criteria in Chapter 18.25 NMC are met. If the project proponent proposes to exceed or vary from the performance criteria in Chapter 18.25 NMC, Type III variance(s) must be processed in accordance with the review procedures set forth in NMC Title 19. (Ord. 2002-254 § 9).

18.44.060 Special use permit.

A special use permit shall be granted by the city, only if the applicant demonstrates that:

A. The characteristics of the special use will not be unreasonably incompatible with the types of uses permitted in surrounding areas;

B. The special use will not materially endanger the health, safety and welfare of the community;

C. The special use is such that pedestrian and vehicular traffic associated with the use will not be hazardous or conflict with existing and anticipated traffic in the neighborhood;

D. The special use will be supported by adequate public facilities or services and will not adversely affect public services to the surrounding area or conditions can be established to mitigate adverse impacts;

E. The location, size and height of buildings, structures, walls and fences, and screening vegetation for the special use shall not hinder or discourage the appropriate development or use of neighboring properties; and

F. The special use is not in conflict with the policies of the comprehensive plan or the basic purposes of this title. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.070 Zone reclassification.

A zone reclassification shall be granted only if the applicant demonstrates that the proposal is consistent with the comprehensive plan and applicable functional plans and complies with the following criteria:

A. There is a demonstrated need for additional zoning as the type proposed.

B. The zone reclassification is consistent and compatible with uses and zoning of the surrounding properties.

C. There have been significant changes in the circumstances of the property to be rezoned or surrounding properties to warrant a change in classification.

D. The property is practically and physically suited for the uses allowed in the proposed zone reclassification. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.080 Home occupation permit.

A home occupation permit shall be granted by the city only if the applicant demonstrates that the home occupation will be conducted in compliance with the provisions of NMC 18.30.040 and 18.30.050. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).

18.44.090 Home industry permit.

A home industry permit shall be granted by the city only if the applicant demonstrates that the home industry will be conducted in compliance with the provisions of NMC 18.30.060. (Ord. 45 § 1, 1994; Ord. 18 § 1, 1994).