4-9-190 SHORELINE PERMITS:

A. PURPOSE:

The purpose of this Section is to ensure consistency with the State Shoreline Management Act and with the City’s Shoreline Master Program.

B. SHORELINE DEVELOPMENT APPROVAL:

1. Development Compliance: All uses and developments within the jurisdiction of the Shoreline Management Act (hereinafter the “Act”) shall be planned and carried out in a manner that is consistent with the Shoreline Master Program and the policy of the Act as required by RCW 90.58.140(1), regardless of whether a shoreline permit, statement of exemption, shoreline variance, or shoreline conditional use permit is required. The Administrator of the Department of Community and Economic Development or designee shall assure compliance with the provisions of the Shoreline Master Program for all permits and approvals processed by the City.

2. Shoreline Overlay: Shoreline regulations shall apply as an overlay and in addition to development regulations, including but not limited to zoning, environmental regulations, development standards, subdivision regulations, and other regulations established by the City.

a. Allowed uses shall be limited by the general polices and specific regulations regarding use preferences for water-dependent and water-oriented uses. Allowed uses may be specified and limited in specific shoreline permits. In the case of nonconforming development, the use provisions of this code shall be applied to any change of use, including occupancy permits.

b. In the event of any conflict between shoreline policies and regulations and any other regulations of the City, shoreline policies and regulations shall prevail unless other regulations provide greater protection of the shoreline natural environment and aquatic habitat.

c. All regulations applied within the shoreline shall be liberally construed to give full effect to the objectives and purposes for which they have been enacted. Shoreline Master Program policies, found in the City’s Comprehensive Plan, establish intent for the shoreline regulations in addition to chapter 90.58 RCW and chapters 173-26 and 173-27 WAC.

3. Substantial Development Permit: A substantial development permit shall be required for all proposed use and development of shorelines unless the proposal is specifically exempt pursuant to RCW 90.58.140(1). An exemption from obtaining a shoreline substantial development permit is not an exemption from compliance with the Act, the Shoreline Master Program, or from any other regulatory requirements.

a. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemptions from the substantial development permit process.

b. The burden of proof that a development or use is exempt is on the applicant/proponent of the exempt development action.

c. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire project.

4. Shoreline Conditional Use Permit: A development or use that is listed as a shoreline conditional use pursuant to the Shoreline Master Program or is an unlisted use must obtain a conditional use permit even if the development or use does not require a substantial development permit.

5. Shoreline Variance: When an activity or development is proposed that does not comply with the bulk, dimensional, and/or performance standards of the program, such development or use shall only be authorized by approval of a shoreline variance even if the development or use does not require a substantial development permit.

6. Land Division: In the case of land divisions, such as short subdivisions, long plats and planned unit developments, the Administrator of the Department of Community and Economic Development or designee shall document compliance with bulk and dimensional standards as well as policies and regulations of the Shoreline Master Program and attach appropriate conditions and/or mitigating measures to such approvals to ensure the design, development activities and future use associated with such land division(s) are consistent with the Shoreline Master Program.

7. Approval Criteria: In order to be approved, the Administrator of the Department of Community and Economic Development or designee must find that a proposal is consistent with the following criteria:

a. All regulations of the Shoreline Master Program appropriate to the shoreline designation and the type of use or development proposed shall be met, except those bulk and dimensional standards that have been modified by approval of a shoreline variance.

b. All policies of the Shoreline Master Program appropriate to the shoreline area designation and the type of use or development activity proposed shall be considered and substantial compliance demonstrated. A reasonable proposal that cannot fully conform to these policies may be permitted, provided it is demonstrated to the Administrator of the Department of Community and Economic Development or designee that the proposal is clearly consistent with the overall goals, objectives and intent of the Shoreline Master Program.

c. For projects located on Lake Washington the criteria in RCW 90.58.020 regarding shorelines of statewide significance and relevant policies and regulations of the Shoreline Master Program shall also be adhered to.

8. Written Findings Required: All permits or statements of exemption issued for development or use within shoreline jurisdiction shall include written findings prepared by the Administrator of the Department of Community and Economic Development or designee, including compliance with bulk and dimensional standards and policies and regulations of the Shoreline Master Program. The Administrator of the Department of Community and Economic Development or designee may attach conditions to the approval of exempt developments and/or uses as necessary to assure consistency of the project with the Act and the program.

9. Building Permit Compliance: For all development within shoreline jurisdiction, the Administrator of the Department of Community and Economic Development or designee shall not issue a building permit for such development until compliance with the Shoreline Master Program has been documented. If a shoreline substantial development permit is required, no permit shall be issued until all comment and appeal periods have expired. Any permit issued by the Administrator of the Department of Community and Economic

Development or designee for such development shall be subject to the same terms and conditions that apply to the shoreline permit.

10. Restoration Project Relief: The City may grant relief from Shoreline Master Program development standards and use regulations when the following apply:

a. A shoreline restoration project causes or would cause a landward shift in the OHWM, resulting in the following:

i. Land that had not been regulated under this chapter prior to construction of the restoration project is brought under shoreline jurisdiction; or

ii. Additional regulatory requirements apply due to a landward shift in required shoreline buffers or other regulations of the applicable Shoreline Master Program; and

iii. Application of Shoreline Master Program regulations would preclude or interfere with use of the property permitted by local development regulations, thus presenting a hardship to the project proponent.

b. The proposed relief meets all of the following criteria:

i. The proposed relief is the minimum necessary to relieve the hardship;

ii. After granting the proposed relief, there is net environmental benefit from the restoration project;

iii. Granting the proposed relief is consistent with the objectives of the shoreline restoration project and consistent with the Shoreline Master Program; and

iv. Where a shoreline restoration project is created as mitigation to obtain a development permit, the project proponent required to perform the mitigation is not eligible for relief under this Section.

c. The application for relief must be submitted to the Department of Ecology for written approval or disapproval. This review must occur during the department’s normal review of a shoreline substantial development permit, conditional use permit, or variance. If no such permit is required, then the department shall conduct its review when the local government provides a copy of a complete application and all supporting information necessary to conduct the review.

i. Except as otherwise provided in subsection B10d of this Section, the Department of Ecology shall provide at least twenty (20) days’ notice to parties that have indicated interest to the department in reviewing applications for relief under this section, and post the notice on to their website.

ii. The department shall act within thirty (30) calendar days of close of the public notice period, or within thirty (30) days of receipt of the proposal from the local government if additional public notice is not required.

d. The public notice requirements of subsection B10c of this Section do not apply if the relevant shoreline restoration project was included in a Shoreline Master Program or shoreline restoration plan as defined in WAC 173-26-201, as follows:

i. The restoration plan has been approved by the department under applicable Shoreline Master Program guidelines; and

ii. The shoreline restoration project is specifically identified in the Shoreline Master Program or restoration plan or is located along a shoreline reach identified in the Shoreline Master Program or restoration plan as appropriate for granting relief from shoreline regulations; and

iii. The Shoreline Master Program or restoration plan includes policies addressing the nature of the relief and why, when, and how it would be applied.

C. EXEMPTIONS FROM PERMIT SYSTEM:

The following shall not be considered substantial developments for the purpose of this Master Program and are exempt from obtaining a Shoreline Substantial Development Permit (SSDP). An exemption from an SSDP is not an exemption from compliance with the Act or the Shoreline Master Program, or from any other regulatory requirements.

1. Governor’s Certification: Any project with a certification from the Governor pursuant to chapter 80.50 RCW.

2. Projects Valued at $5,000 or Less: Any development of which the total cost or fair market value does not exceed five thousand dollars ($5,000.00), if such development does not materially interfere with the normal public use of the water or shorelines of the State.

3. Maintenance and Repair: Normal maintenance or repair of existing structures or developments, including damage by accident, fire or elements.

a. “Normal maintenance” includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition.

b. “Normal repair” means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to the shoreline resource or environment.

c. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including, but not limited to, its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment.

4. Emergency Construction: Emergency construction necessary to protect property from damage by the elements.

a. An “emergency” is an unanticipated and imminent threat to public health, safety, or the environment which requires immediate action within a time too short to allow for full compliance with the Shoreline Master Program.

b. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed to be the appropriate means to address the emergency situation, upon abatement of the emergency situation, the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to chapter 90.58 RCW, chapter 17-27 WAC or the Shoreline Master Program shall be obtained.

c. All emergency construction shall be consistent with the policies of chapter 90.58 RCW and the Shoreline Master Program.

d. In general, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency.

5. Agricultural Construction or Practices: Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands, and the construction and maintenance of irrigation structures, including, but not limited to, head gates, pumping facilities, and irrigation channels. A feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling, other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations.

6. Construction of Single Family Residence and Accessory Buildings: Construction on shorelands by an owner, lessee or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty five feet (35') above average grade level as defined in WAC 173-27-030 and which meets all requirements of the State agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this Section.

a. “Single family” residence means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal appurtenance. An “appurtenance” is necessarily connected to the use and enjoyment of a single family residence and is located landward of the OHWM and the perimeter of a wetland.

b. Construction authorized under this exemption shall be located landward of the OHWM.

7. Construction of Noncommercial Docks: Construction of a dock including a community dock designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multi-family residences.

a. This exception applies if the fair market value of the dock does not exceed ten thousand dollars ($10,000.00); however, if subsequent construction having a fair market value exceeding two thousand five hundred dollars ($2,500.00) occurs within five (5) years of completion of the prior construction, the subsequent construction shall be considered a substantial development permit; and

b. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances.

8. Construction Authorized by the Coast Guard: Construction or modification, by or under the authority of the Coast Guard or a designated port management authority, of navigational aids such as channel markers and anchor buoys.

9. Operation, Maintenance, or Construction Related to Irrigation: Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored groundwater for the irrigation of lands.

10. Marking of Property Lines on State-Owned Lands: The marking of property lines or corners on State-owned lands when such marking does not interfere with the normal public use of the surface of the water.

11. Operation and Maintenance of Agricultural Drainage or Dikes: Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system.

12. Activities Necessary for Permit Application: Site exploration and investigation activities that are prerequisites to preparation of an application for development authorization under the Shoreline Master Program, if:

a. The activity does not interfere with the normal public use of the surface waters.

b. The activity will have no significant adverse impact on the environment including, but not limited to, fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values.

c. The activity does not involve the installation of a structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity.

d. A private entity seeking development authorization under the Shoreline Master Program first posts a performance bond or provides other evidence of financial responsibility to the Planning Division to ensure that the site is restored to pre-existing conditions.

e. The activity is not subject to the permit requirements of RCW 90.58.550.

13. Removal or Control of Aquatic Noxious Weeds: The process of removing or controlling an aquatic noxious weed, as defined in RCW 17.26.020, through the use of a herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other State agencies under chapter 43.21C RCW.

14. Watershed Restoration Projects: Watershed restoration projects as defined below:

a. “Watershed restoration project” means a public or private project authorized by the sponsor of a watershed restoration plan that implements the plan or a part of the plan and consists of one or more of the following activities:

i. A project that involves less than ten (10) miles of streamreach, in which less than twenty five (25) cubic yards of sand, gravel, or soil is removed, imported, disturbed or discharged, and in which no existing vegetation is removed except as minimally necessary to facilitate additional plantings.

ii. A project for the restoration of an eroded or unstable stream bank that employs the principles of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water.

iii. A project primarily designed to improve fish and wildlife habitat, remove or reduce impediments to migration of fish, or enhance the fishery resource available for use by all of the citizens of the State, provided that any structure, other than a bridge or culvert or in stream habitat enhancement structure associated with the project, is less than two hundred (200) square feet in floor area and is located above the OHWM of the stream.

b. “Watershed restoration plan” means a plan, developed or sponsored by a State department, a federally recognized Indian Tribe, a city, a county or a conservation district, for which agency and public review has been conducted pursuant to chapter 43.21C RCW, the State Environmental Policy Act. The watershed restoration plan generally contains a general program and implementation measures or actions for the preservation, restoration, re-creation, or enhancement of the natural resources, character, and ecology of a stream, stream segment, drainage area, or watershed.

15. Projects to Improve Fish and Wildlife Passage or Habitat: A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, when all of the following apply:

a. The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to accomplish the intended purpose.

b. The project has received hydraulic project approval by the Department of Fish and Wildlife pursuant to chapter 75.20 RCW.

c. The Planning Division has determined that the project is consistent with the Shoreline Master Program.

16. Hazardous Substance Remediation: Hazardous substance remedial actions pursuant to WAC 173-27-040(3).

17. Projects on Lands Not Subject to Shoreline Jurisdiction Prior to Restoration: Actions on land that otherwise would not be under the jurisdiction of the Shoreline Management Act except for a change in the location of OHWM or other criteria due to a shoreline restoration project creating a landward shift in the OHWM that brings the land under the jurisdiction of the Act.

D. EXEMPTION CERTIFICATE PROCEDURES:

1. Application Required: Any person claiming exemption from the permit requirements of the Shoreline Master Program as a result of the exemptions specified in this Section shall make application for a no-fee exemption certificate to the Planning Division in the manner prescribed by that division.

2. Consistency Required: Any development which occurs within the regulated shorelines of the State under Renton’s jurisdiction, whether it requires a permit or not, must be consistent with the intent of the State law.

3. Conditions Authorized: The City may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the Shoreline Management Act and the Shoreline Master Program.

4. Permit Required if Project Not Exempt in Part: If any part of a proposed development is not eligible for exemption, then a shoreline permit is required for the entire proposed development project.

E. SHORELINE PERMIT APPLICATION PROCEDURES:

1. Information Prior to Submitting a Shoreline Substantial Development Permit Application: Prior to submitting an application for a shoreline permit or an exemption from a shoreline permit, the applicant should informally discuss a proposed development with the Planning Division. This will enable the applicant to become familiar with the requirements of the Shoreline Master Program, building and zoning procedures, and enforcement procedures.

2. Shoreline Substantial Development Permit Required: No shoreline development shall be undertaken on shorelines of the City without first obtaining a “substantial development permit” from the Planning Division.

3. Shoreline Substantial Development Permit Application Forms and Fees: Fees shall be as listed in RMC 4-1-170, Land Use Review Fees. Applications for such permits shall be made on forms and reviewed according to procedures prescribed by the Planning Division. Application forms may be revised from time to time by the Planning Division without prejudice to any existing applications. Such forms should be designed to provide such information as is necessary to determine whether such a permit is justified.

4. Secondary Review by Independent Qualified Professionals: When appropriate due to the type of critical areas, habitat, or species present, or project area conditions, the Administrator of the Department of Community and Economic Development or designee may require the applicant to prepare or fund analyses or activities conducted by a third party or parties selected by the Administrator of the Department of Community and Economic Development or designee and paid for by the applicant. Analyses and/or activities conducted under this subsection include, but are not limited to:

a. Evaluation by an independent qualified professional of the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate; and

b. A request for consultation with the Washington Department of Fish and Wildlife, Washington State Department of Ecology, or the local Native American Indian Tribe or other appropriate agency; and/or

c. Analysis of detailed surface and subsurface hydrologic features both on and adjacent or abutting to the site.

5. Public Notice: Three (3) copies of a notice of development application shall be posted prominently on the property concerned and in conspicuous public places within three hundred feet (300') thereof. The notice of development application shall also be mailed to property owners within three hundred feet (300') of the boundaries of the subject property. The required contents of the notice of development application are detailed in RMC 4-8-090B, Public Notice Requirements.

6. Standard Public Comment Time: Each notice of development application shall include a statement that persons desiring to present their views to the Planning Division with regard to said application may do so in writing to that division and persons interested in the Planning Division’s action on an application for a permit may submit their views in writing or notify the Planning Division in writing of their interest within fourteen (14) days from the date of the notice of application.

7. Special Public Comment Time: Notice of development application for a substantial development permit regarding a limited utility extension as defined in RCW 90.58.140(11)(b) or for the construction of a bulkhead or other measures to protect a single family residence and its appurtenant structures from shoreline erosion shall include a fourteen (14) day comment period.

Such notification or submission of views to the Planning Division shall entitle those persons to a copy of the action taken on the application.

8. Review Guidelines: Unless exempted or authorized through the variance or conditional use permit provisions of the Shoreline Master Program, no substantial development permit and no other permit shall be granted unless the proposed development is consistent with the provisions of the Shoreline Master Program, the Shoreline Management Act of 1971, and the rules and regulations adopted by the Department of Ecology thereunder.

9. Conditional Approval: Should the Administrator of the Department of Community and Economic Development or designee find that any application does not substantially comply with criteria imposed by the Shoreline Master Program and the Shoreline Management Act of 1971, he/she may deny such application or attach any terms or condition which he/she deems suitable and reasonable to effect the purpose and objective of the Shoreline Master Program.

10. Notification: It shall be the duty of the Planning Division to timely furnish copies of all applications and actions taken by said division unto such other officials or departments whose jurisdiction may extend to all or any part of the proposed development, including any State or Federal agencies and Indian tribes.

F. REVIEW CRITERIA:

1. General: The Planning Division shall review an application for a permit based on the following:

a. The application.

b. The environmental checklist or environmental impact statement, if one is required.

c. Written comments from interested persons.

d. Information and comments from all affected City departments.

e. Evidence presented at a public hearing.

f. No authorization to undertake use or development on shorelines of the State shall be granted by the Administrator of the Department of Community and Economic Development or designee unless upon review the use or development is determined to be consistent with the policy and provisions of the Shoreline Management Act and the Shoreline Master Program.

2. Additional Information: The Planning Division may require an applicant to furnish information and data in addition to that contained or required in the application forms prescribed. Unless an adequate environmental statement has previously been prepared for the proposed development by another agency, the City’s Environmental Review Committee shall cause to be prepared such a statement, prior to granting a permit, when the State Environmental Policy Act of 1971 would require such a statement.

3. Procedural Amendments: In addition to the criteria hereinabove set forth in this Section, the Department of Community and Economic Development may from time to time promulgate additional procedures or criteria and such shall become effective, when reduced to writing, and filed with the City Clerk and as approved by the City Council and the Department of Ecology.

4. Burden of Proof on Applicant: The burden of proving that the proposed substantial development is consistent with the criteria which must be met before a permit is granted shall be on the applicant.

G. SURETY DEVICES:

The Planning Division may require the applicant to post a surety device in favor of the City of Renton to assure full compliance with any terms and conditions imposed by said department on any shoreline permit. Said surety device shall be in an amount to reasonably assure the City that any deferred improvement will be carried out within the time stipulated and in accordance with RMC 4-1-230, Surety and Bonds.

H. ADMINISTRATIVE APPEALS:

The Department of Community and Economic Development shall have the final authority to interpret the Shoreline Master Program for the City of Renton. Where an application is denied or changed, per subsection E6 of this Section, an applicant may appeal the decision denying or changing a “substantial development permit” to the Shoreline Hearings Board for an open record appeal in accordance with RMC 4-8-110. See RMC 4-8-110H for appeal procedures to the Shoreline Hearings Board.

I. VARIANCES AND CONDITIONAL USES:

1. Purpose: The power to grant variances and conditional use permits should be utilized in a manner which, while protecting the environment, will assure that a person will be able to utilize his property in a fair and equitable manner.

2. Authority:

a. Conditional Use Permits: Conditional use permits shall be processed either by the Hearing Examiner or administratively in accordance with the provisions of RMC 4-2-060, Zoning Use Table; provided, that:

i. Additional requirements for conditional use permits may be provided within shoreline jurisdiction in this Section and will prevail over the provisions of RMC 4-2-060.

ii. If an administrative process is not specified, a conditional use permit shall be processed by the Hearing Examiner.

iii. Proposed uses not specified in this Section or in RMC 4-2-060 and not prohibited may be allowed by Hearing Examiner conditional use permit.

b. Variances: The Hearing Examiner shall have authority to grant conditional use permits and variances in the administration of the Renton Master Program.

c. State Department of Ecology Decision: Both variances and conditional use permits are forwarded to the Department of Ecology and the Attorney General’s office for approval or denial.

d. Time Limit, Permit Validity, and Appeals: Conditional permits and variances shall be deemed to be approved within thirty (30) calendar days from the date of receipt by the Department of Ecology and the Attorney General’s office unless written communication is received by the applicant and the City indicating otherwise.

i. Conditional use permits and variances shall be filed with the State in accordance with RCW 90.58.140(6) and WAC 173-27-130.

ii. Permit validity requirements of subsection J of this Section shall apply to conditional use and variance permits.

iii. Appeals of conditional use or variance permits shall be made in accordance with RMC 4-8-110H.

3. Maintenance of Permitted Uses Allowed: It shall be recognized that a lawful use at the time the Shoreline Master Program is adopted is to be considered a permitted use, and maintenance and restoration shall not require a variance or a conditional use permit.

4. Variances:

a. Purpose: Upon proper application, a substantial development permit may be granted which is at variance with the criteria established in the Shoreline Master Program where, owing to special conditions pertaining to the specific piece of property, the literal interpretation and strict application of the criteria established in the Shoreline Master Program would cause undue and unnecessary hardship or practical difficulties.

b. Decision Criteria: The fact that the applicant might make a greater profit by using his property in a manner contrary to the intent of the Shoreline Master Program is not, by itself, sufficient reason for a variance. The Hearing Examiner must find each of the following:

i. Exceptional or extraordinary circumstances or conditions applying to the subject property, or to the intended use thereof, that do not apply generally to other properties on shorelines in the same vicinity.

ii. The variance permit is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by the owners of other properties on shorelines in the same vicinity.

iii. The variance permit will not be materially detrimental to the public welfare or injurious to property on the shorelines in the same vicinity.

iv. The variance granted will be in harmony with the general purpose and intent of the Shoreline Master Program.

v. The public welfare and interest will be preserved; if more harm will be done to the area by granting the variance than would be done to the applicant by denying it, the variance shall be denied, but each property owner shall be entitled to the reasonable use and development of his lands as long as such use and development is in harmony with the general purpose and intent of the Shoreline Management Act of 1971, and the provisions of the Shoreline Master Program.

vi. The proposal meets the variance criteria in WAC 173-27-170.

vii. Proposals that vary the size of the vegetation conservation buffer must provide for off-site mitigation in accordance with RMC 4-3-090F1k.

5. Conditional Use:

a. Purpose: Upon proper application, and findings of compliance with conditional use permit criteria, a conditional use permit may be granted. The objective of a conditional use provision is to provide more control and flexibility for implementing the regulations of the Shoreline Master Program. With provisions to control undesirable effects, the scope of uses can be expanded to include many uses.

b. Decision Criteria: Uses classified as conditional uses can be permitted only after consideration and by meeting such performance standards that make the use compatible with other permitted uses within that area. A conditional use permit may be granted subject to the Administrator of the Department of Economic Development or designee determining compliance with each of the following conditions:

i. The use must be compatible with other permitted uses within that area.

ii. The use will not interfere with the public use of public shorelines.

iii. Design of the site will be compatible with the surroundings and the Shoreline Master Program.

iv. The use shall be in harmony with the general purpose and intent of the Shoreline Master Program.

v. The use meets the conditional use criteria in WAC 173-27-160.

J. TIME REQUIREMENTS FOR SHORELINE PERMITS:

1. Applicability: The time requirements of this Section shall apply to all substantial development permits and to any development authorized pursuant to a variance or conditional use permit authorized under the Shoreline Master Program.

2. Unspecified Time Limits: Where specific provisions are not included to establish time limits on a permit as part of action on a permit by the City or the Department of Ecology, the time limits in subsections J6 and J8 of this Section apply.

3. Discretionary Time Limits for Shoreline Substantial Developments: If it is determined that standard time requirements of subsections J6 and J8 of this Section should not be applied, the Planning Division shall adopt appropriate time limits as a part of action on a substantial development permit upon a finding of good cause, based on the requirements and circumstances of the project proposed and consistent with the policy and provisions of the Shoreline Master Program and RCW 90.58.143.

4. Discretionary Time Limits for Shoreline Conditional Uses or Shoreline Variances: If it is determined that standard time requirements of subsections J6 and J8 of this Section should not be applied, the Hearing Examiner, upon a finding of good cause and with the approval of the Department of Ecology, shall establish appropriate time limits as a part of action on a conditional use or variance permit. “Good cause” means that the time limits established are reasonably related to the time actually necessary to perform the development on the ground and complete the project that is being permitted.

5. Extension Requests: Requests for permit extension shall be made in accordance with subsections J6 and J8 of this Section.

6. Standard Period of Validity: Unless a different time period is specified in the shoreline permit as authorized by RCW 90.58.143 and subsection J2 or J3 of this Section, construction activities, or a use or activity, for which a permit has been granted pursuant to the Shoreline Master Program must be commenced within two (2) years of the effective date of a shoreline permit, or the shoreline permit shall terminate, and a new permit shall be necessary. However, the Planning Division may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed with the Planning Division before the expiration date, and notice of the proposed extension is given to parties of record and the Department of Ecology.

7. Certification of Construction Commencement: Construction activities or commencement of construction referenced in subsection J6 of this Section means that construction applications must be submitted, permits must be issued, and foundation inspections must be completed before the end of the two (2) year period.

8. Time Allowed for Construction Completion: A permit authorizing construction shall extend for a term of no more than five (5) years after the effective date of a shoreline permit, unless a longer period has been specified pursuant to RCW 90.58.143 and subsection J2 or J3 of this Section. If an applicant files a request for an extension prior to expiration of the shoreline permit the Planning Division shall review the permit and upon a showing of good cause may authorize a single extension of the shoreline permit for a period of up to one year. Otherwise said permit shall terminate. Notice of the proposed permit extension shall be given to parties of record and the Department of Ecology. To maintain the validity of a shoreline permit, it is the applicant’s responsibility to maintain valid construction permits in accordance with adopted building codes.

9. Effective Date of Filing: For purposes of determining the life of a shoreline permit, the effective date of a substantial development permit, shoreline conditional use permit, or shoreline variance permit shall be the date of filing as provided in RCW 90.58.140(6). The permit time periods in subsections J6 and J8 of this Section do not include the time during which a use or activity was not actually pursued due to the pendency of administrative appeals or legal actions, or due to the need to obtain any other government permits and approvals for the development that authorize the development to proceed, including all reasonably related administrative or legal actions on any such permits or approvals.

10. Notification to City of Other Permits and Legal Actions: It is the responsibility of the applicant to inform the Planning Division of the pendency of other permit applications filed with agencies other than the City, and of any related administrative or legal actions on any permit or approval. If no notice of the pendency of other permits or approvals is given to the Division prior to the expiration date established by the shoreline permit or the provisions of this Section, the expiration of a permit shall be based on the effective date of the shoreline permit.

11. Permit Processing Time: The City shall issue permits within applicable time limits specified by State law. Substantial development permits for a limited utility extension as defined in RCW 90.58.140(11)(b) or for the construction of a bulkhead or other measures to protect a single family residence and its appurtenant structures from shoreline erosion shall be issued within twenty one (21) days of the last day of the comment periods specified in subsections E6 and E7 of this Section.

12. Construction Not Authorized Until Proceedings Completed: No construction pursuant to such permit shall begin or be authorized and no building, grading or other construction permits or use permits shall be issued by the City until twenty one (21) days from the date the permit was filed with the Department of Ecology and the Attorney General, or until all review proceedings are completed as were initiated within the twenty one (21) days of the date of filing. Filing shall occur in accordance with RCW 90.58.140(6) and WAC 173-27-130.

13. Special Allowance for Construction: If the granting of a shoreline permit by the City is appealed to the Shoreline Hearings Board, and the Shoreline Hearings Board has approved the granting of the permit, and an appeal for judicial review of the Shoreline Hearings Board decision is filed, construction authorization may occur subject to the conditions, time periods, and other provisions of RCW 90.58.140(5)(b).

K. RULINGS TO STATE:

Any ruling on an application for a substantial development permit under authority of the Shoreline Master Program, whether it is an approval or denial, shall, with the transmittal of the ruling to the applicant, be filed concurrently with the Department of Ecology and the Attorney General by the Planning Division. Filing shall occur in accordance with RCW 90.58.140(6) and WAC 173-27-130.

L. TRANSFERABILITY OF PERMIT:

If a parcel which has a valid shoreline permit is sold to another person or firm, such permit may be transferred to the new owner.

M. ENFORCEMENT:

All provisions of the Shoreline Master Program shall be enforced by the Planning Division. For such purposes, the Administrator of the Department of Community and Economic Development or his duly authorized representative shall have the power of a police officer.

N. RESCISSION OF PERMITS:

1. Noncompliance with Permit: Any shoreline permit issued under the terms of the Shoreline Master Program may be rescinded or suspended by the Planning Division of the City upon a finding that a permittee has not complied with conditions of the permit.

2. Notice of Noncompliance: Such rescission and/or modification of an issued permit shall be initiated by serving written notice of noncompliance on the permittee, which notice shall be sent by registered or certified mail, return receipt requested, to the address listed on the application or to such other address as the applicant or permittee may have advised the City; or such notice may be served on the applicant or permittee in person or his agent in the same manner as service of summons as provided by law.

3. Posting: In addition to such notice, the Planning Division shall cause to have notice posted in three (3) public places of which one posting shall be at or within the area described in the permit.

4. Public Hearing: Before any such permit can be rescinded, a public hearing shall be held by the Hearing Examiner. Notice of the public hearing shall be made in accordance with RMC 4-8-090D, Public Notice Requirements.

5. Final Decision: The decision of the Hearing Examiner shall be the final decision of the City on all rescinded applications. A written decision shall be transmitted to the Department of Ecology, the Attorney General’s office, the applicant, and such other departments or boards of the City as are affected thereby and the legislative body of the City.

O. APPEALS:

See RMC 4-8-110H.

P. VIOLATIONS AND PENALTIES:

1. Prosecution: Every person violating any of the provisions of the Shoreline Master Program or the Shoreline Management Act of 1971 shall be punishable under conviction by a fine not exceeding one thousand dollars ($1,000.00), or by imprisonment not exceeding ninety (90) days, or by both such fine and imprisonment, and each day’s violation shall constitute a separate punishable offense.

2. Injunction: The City Attorney may bring such injunctive, declaratory or other actions as are necessary to ensure that no uses are made of the shorelines of the State within the City’s jurisdiction which are in conflict with the provisions and programs of the Shoreline Master Program or the Shoreline Management Act of 1971, and to otherwise enforce provisions of this Section and the Shoreline Management Act of 1971.

3. Violators Liable for Damages: Any person subject to the regulatory program of the Shoreline Master Program who violates any provision of the Shoreline Master Program or the provisions of a permit issued pursuant thereto shall be liable for all damages to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to such violation. The City Attorney may bring suit for damages under this subsection on behalf of the City. Private persons shall have the right to bring suit for damages under this subsection on their own behalf and on behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by violation, the Court shall make provision to assure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such relief, including monetary damages, the Court in its discretion may award attorney’s fees and costs of the suit to the prevailing party.

Q. SHORELINE MORATORIUM:

1. The City Council may adopt moratoria or other interim official controls as necessary and appropriate to implement the provisions of the Shoreline Management Act.

2. Prior to adopting such moratorium or other interim official controls, the City Council shall:

a. Hold a public hearing on the moratorium or control within sixty (60) days of adoption;

b. Adopt detailed findings of fact that include, but are not limited to, justifications for the proposed or adopted actions and explanations of the desired and likely outcomes; and

c. Notify the Department of Ecology of the moratorium or control immediately after its adoption. The notification must specify the time, place, and date of any public hearing held.

3. Said moratorium or other official control shall provide that all lawfully existing uses, structures, or other development shall continue to be deemed lawful conforming uses and may continue to be maintained, repaired, and redeveloped, so long as the use is not expanded, under the terms of the land use and shoreline rules and regulations in place at the time of the moratorium.

4. Said moratorium or control adopted under this Section may be effective for up to six (6) months if a detailed work plan for remedying the issues and circumstances necessitating the moratorium or control is developed and made available for public review. A moratorium or control may be renewed for two (2) six (6) month periods if the City Council complies with subsection Q2a of this Section before each renewal.

5. If a moratorium or control is in effect on the date a proposed Master Program or amendment is submitted to the Department of Ecology, the moratorium or control must remain in effect until the department's final action under RCW 90.58.090; however, the moratorium expires six (6) months after the date of submittal if the department has not taken final action. (Ord. 4716, 4-13-1998; Ord. 4999, 1-13-2003; Ord. 5159, 10-17-2005; Ord. 5450, 3-2-2009; Ord. 5633, 10-24-2011)