Chapter 16.16
SHORELINE DEVELOPMENT*
Sections:
16.16.030 Shoreline review committee.
16.16.045 Submittal requirements.
16.16.050 Criteria for approval of substantial development permit and conditions authorized.
16.16.070 Commencement of construction.
*Prior history: Ords. 550, 595, 1166 and 1193. Res. 184.
16.16.010 Purpose and policy.
The purpose of this chapter is to implement the Washington Shoreline Management Act of 1971 and the Washougal shorelines management master program as endorsed by the city council on June 17, 1974, by regulating use activities on shorelines of the city and by providing for variances as may be warranted.
The Washington State Legislature has found that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration and preservation. In addition, it has found that ever increasing pressures of additional uses are being placed on the shorelines, necessitating increased coordination in the management and development of the shorelines of the state. The legislature further found that much of the shorelines of the state and the uplands adjacent thereto are in private ownership; that unrestricted construction on the privately owned or publicly owned shorelines of the state is not in the best public interest; and therefore, coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest. There is, therefore, a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines.
It is the policy of the state as stated in said legislation to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to ensure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable water, will promote and enhance the public interest. This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto.
The State Legislature has further declared that the interest of all of the people shall be paramount in the management of shorelines of statewide significance. The Washington Department of Ecology, in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, are required to and shall give preference to uses in the following order of preference which:
(1) Recognize and protect the state-wide interest over local interest;
(2) Preserve the natural character of the shoreline;
(3) Result in long-term over short-term benefits;
(4) Protect the resources and ecology of the shoreline;
(5) Increase public access to publicly owned areas of the shorelines;
(6) Increase recreational opportunities for the public in the shoreline;
(7) Provide for any other element as defined in Section 10(2) of the Shoreline Management Act of 1971 deemed appropriate or necessary.
It is stated that the city’s policy is consistent with such state policy as above stated. In the implementation of this policy, the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the city shall be preserved to the greatest extent feasible consistent with the overall best interest of the state, the city, and the people generally.
To this end, uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the city’s shoreline. Alterations of the natural condition of the shorelines of the city, in those limited instances when authorized, shall be given priority for single-family residences, ports, shoreline recreational uses including but not limited to parks, marinas, piers and other improvements facilitating public access to shorelines of the city, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the city and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the city.
Permitted uses in the shorelines of the city shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public’s use of the water. (Ord. 1233 § 1 (Exh. A), 1997)
16.16.020 Applicability.
This chapter shall apply to all developments and substantial developments, as defined in this title, proposed upon shorelines of the city, as defined in this title. No development or substantial development shall be undertaken on the shorelines of the city except those which are consistent with the policy of this chapter, the applicable regulations, and provisions of the master program, except as specifically authorized through a variance process.
No person shall undertake any substantial development, as defined by this title, on the shorelines of the city without first applying to the community development director for a substantial development permit and obtaining approval of such substantial development permit in accordance with the procedures, or reference thereto, specified in this chapter. (Ord. 1613 § 1 (Exh. A), 2008; Ord. 1233 § 1 (Exh. A), 1997)
16.16.030 Shoreline review committee.
A shorelines management review committee is created, consisting of the community development director (chair), one member of the city council, and one member of the planning commission. The committee is charged with determining if a shoreline substantial development permit application is significant or nonsignificant and hence determine the process which it will go through. (Ord. 1613 § 1 (Exh. A), 2008; Ord. 1233 § 1 (Exh. A), 1997)
16.16.040 Procedures.
(1) Except as provided for in subsection (3) of this section, shoreline substantial development permits, conditional uses or variances shall be processed as a Type II land use action, as provided for in WMC 18.94.060.
(2) Preapplication Review. Unless waived by the director, all shoreline substantial development permits, conditional uses and variances shall be subject to a preapplication conference pursuant to WMC 18.94.045.
(3) Supplemental Procedures. To assure consistency with the Shoreline Management Act (Chapter 173-27 WAC), the following supplemental procedures shall be in addition, or supercedent to, those procedures set forth in Chapter 18.94 WMC for shoreline substantial development permits.
(a) The public comment period from the notice of application shall be no less than 30 days.
(b) Upon receipt of a technically complete substantial development permit application, the director shall immediately forward a copy of the application to the shoreline review committee. After the end of the initial public comment period, but prior to issuance of the SEPA threshold determination, the committee, based upon the criteria in subsections (3)(b)(i) and (ii) of this section, shall determine if the substantial development permit is significant or nonsignificant.
(i) Determination of Significance. Generally, a determination of significance is based upon the nature and scope of the project, with the public interest in mind. If the development is likely to involve public concern (for instance, as manifested in public comments received during the 30-day period of comment opportunity), the application will be determined a significant substantial shoreline development proposal. If the committee determines the application to be significant, the committee shall review and make recommendations on the application, and the director shall schedule the matter for consideration by the hearing examiner and proceed with the application as a Type III land use action.
(ii) Determination of Nonsignificance. If the applicant is not determined to be significant, the director shall proceed with application processing as a Type II land use action. The final decision on the permit application shall be issued within 60 days of the technically complete date.
A determination of significance or nonsignificance of a shoreline substantial development permit shall not bind the city to issuing a SEPA determination of significance or nonsignificance on the same application. A final decision shall be issued within 90 days of the technically complete date.
(c) Upon final decision by the city, and exhaustion of all local appeals of such decision or lapse of local appeal opportunities, the city shall forward a copy of the decision to the Department of Ecology. When a substantial development permit and a conditional use or variance permit are required for a development, the submittal on the permits shall be made concurrently. The submittal to the Department of Ecology shall include the following information:
(i) A copy of the complete application pursuant to WAC 173-27-180;
(ii) Findings and conclusions that establish the basis for the decision including but not limited to identification of shoreline environment designation, applicable master program policies and regulations and the consistency of the project with appropriate review criteria for the type of permit(s) as established in WAC 173-27-140 through 173-27-170;
(iii) The final decision of the local government;
(iv) The permit data sheet required by WAC 173-27-190;
(v) Where applicable, local government shall also file the applicable documents required by Chapter 43.21C RCW, the State Environmental Policy Act, or in lieu thereof, a statement summarizing the actions and dates of such actions taken under Chapter 43.21C RCW; and
(vi) When the project has been modified in the course of the local review process, plans or text shall be provided to the department that clearly indicate the final approved plan. (Ord. 1451 § 1, 2003; Ord. 1233 § 1 (Exh. A), 1997)
16.16.045 Submittal requirements.
Applications for shoreline substantial development, conditional use, or variance permits shall include the information required for a Type II application as set forth in WMC 18.94.050, in addition to the following:
(1) The name, address and phone number of the applicant. The applicant should be the owner of the property or the primary proponent of the project and not the representative of the owner or primary proponent;
(2) The name, address and phone number of the applicant’s representative if other than the applicant;
(3) The name, address and phone number of the property owner, if other than the applicant;
(4) Location of the property. This shall, at a minimum, include the property address and identification of the section, township and range to the nearest quarter, quarter section or latitude and longitude to the nearest minute. All applications for projects located in open water areas away from land shall provide a longitude and latitude location;
(5) Identification of the name of the shoreline (water body) that the site of the proposal is associated with. This should be the water body from which jurisdiction of the Act over the project is derived;
(6) A general description of the proposed project that includes the proposed use or uses and the activities necessary to accomplish the project;
(7) A general description of the property as it now exists including its physical characteristics and improvements and structures;
(8) A general description of the vicinity of the proposed project including identification of the adjacent uses, structures and improvements, intensity of development and physical characteristics;
(9) A completed and signed SEPA checklist;
(10) A site plan, prepared consistent with Chapter 18.88 WMC, which includes:
(a) The boundary of the parcel(s) of land upon which the development is proposed,
(b) The ordinary high water mark of all water bodies located adjacent to or within the boundary of the project. This may be an approximate location; provided, that for any development where a determination of consistency with the applicable regulations requires a precise location of the ordinary high water mark, the mark shall be located precisely and the biological and hydrological basis for the location as indicated on the plans shall be included in the development plan. Where the ordinary high water mark is neither adjacent to or within the boundary of the project, the plan shall indicate the distance and direction to the nearest ordinary high water mark of a shoreline,
(c) Existing and proposed land contours. The contours shall be at intervals sufficient to accurately determine the existing character of the property and the extent of proposed change to the land that is necessary for the development. Areas within the boundary that will not be altered by the development may be indicated as such and contours approximated for that area,
(d) A delineation of all wetland areas that will be altered or used as a part of the development,
(e) A general indication of the character of vegetation found on the site,
(f) The dimensions and locations of all existing and proposed structures and improvements including but not limited to buildings, paved or graveled areas, roads, utilities, septic tanks and drainfields, material stockpiles or surcharge, and storm water management facilities,
(g) Where applicable, a landscaping plan for the project,
(h) Where applicable, plans for development of areas on or off the site as mitigation for impacts associated with the proposed project shall be included and contain information consistent with the requirements of this section,
(i) Quantity, source and composition of any fill material that is placed on the site whether temporary or permanent,
(j) Quantity, composition and destination of any excavated or dredged material,
(k) A vicinity map showing the relationship of the property and proposed development or use to roads, utilities, existing developments and uses on adjacent properties,
(l) Where applicable, a depiction of the impacts to views from existing residential uses and public areas,
(m) On all applications for variances pursuant to WMC 16.16.060, the plan shall clearly indicate where development could occur without approval of a variance, the physical features and circumstances on the property that provide a basis for the request, and the location of adjacent structures and uses. (Ord. 1233 § 1 (Exh. A), 1997)
16.16.050 Criteria for approval of substantial development permit and conditions authorized.
(1) A substantial development permit shall only be issued when the following criteria have been met:
(a) The policies and procedures of the Act;
(b) The policies and provisions of this regulation;
(c) The applicable master program adopted or approved for the area; and
(d) No permit shall be issued for any new or expanded building or structure of more than 35 feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.
(2) Local government may attach conditions to the approval of permits as necessary to assure consistency of the project with the Act and the local master program.
The burden of proof shall be on the applicant to demonstrate the proposed substantial development is consistent with said criteria.
(3) In considering and/or granting a permit the hearing examiner, shorelines management review committee and the director may attach conditions regarding the location, character, and/or other features of the proposed structure or use, or regarding their effect upon the shorelines, as deemed necessary to carry out the intent of this chapter and the state act and to be in the public interest. Such conditions may require additional work to be done, or work to be done in a certain manner. Plans conditionally approved by the hearing examiner for significant substantial developments shall be considered binding site plans. Conditionally approved developments, or binding site plans may be rescinded for failure to comply with conditions. (Ord. 1451 § 1, 2003; Ord. 1233 § 1 (Exh. A), 1997)
16.16.060 Variances.
(1) Applicability. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in the applicable master program where there are extraordinary circumstances relating to the physical character for configuration of property such that the strict implementation of the master program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020.
Variance permits should be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances the applicant must demonstrate the extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect.
(2) Procedures. Variances shall be classified and processed in the same manner as zoning variances, as set forth in Chapter 18.80 WMC.
(3) Criteria. The following criteria shall apply to shoreline variance requests:
(a) Variance permits for development and/or uses that will be located landward of the ordinary high water mark (OHWM), as defined in RCW 90.58.030(2)(b), and/or landward of any wetland as defined in RCW 90.58.030(2)(h), may be authorized provided the applicant can demonstrate all of the following:
(i) That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes, or significantly interferes with, reasonable use of the property;
(ii) That the hardship described in subdivision (1)(A) of this subsection is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;
(iii) That the design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment;
(iv) That the variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;
(v) That the variance requested is the minimum necessary to afford relief; and
(vi) That the public interest will suffer no substantial detrimental effect.
(b) Variance permits for development and/or uses that will be located waterward of the ordinary high water mark (OHWM), and as defined in RCW 90.58.030(2)(b), or within any wetland as defined in RCW 90.58.030(2)(h), may be authorized provided the applicant can demonstrate all of the following:
(i) That the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes all reasonable use of the property;
(ii) That the proposal is consistent with the criteria established under subsection (3)(a)(i) through (vi) of this section; and
(iii) That the public rights of navigation and use of the shorelines will not be adversely affected.
(c) In the granting of all variance permits, consideration shall be given to the cumulative impact of additional request for like actions in the area. For example, if variances were granted to other developments and/or uses in the area where similar circumstances exist, the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall not cause substantial adverse effects to the shoreline environment.
(d) Variances from the use regulations of the master program are prohibited. (Ord. 1233 § 1 (Exh. A), 1997)
16.16.070 Commencement of construction.
No construction pursuant to an approved substantial development permit shall begin or be authorized, and no building, grading or other construction or use permits shall be issued until 45 days have passed from the date of final approval, or until all review proceedings have terminated if such proceedings were initiated within 45 days of the date of final approval of the director, in the case of a nonsubstantial development. (Ord. 1233 § 1 (Exh. A), 1997)
16.16.080 Appeals.
Appeals of any decision on a shoreline substantial development permit or variance shall be made pursuant to WMC 18.94.140. Following exhaustion of all local appeals, any person aggrieved by the local action on a shoreline substantial development permit or variance may seek review from the State Shorelines Hearing Board by filing a request for the same within 30 days of receipt of the final order, and by concurrently filing copies of his request with the State Department of Ecology and the Attorney General, as provided by the Shorelines Management Act. Copies of the appeal shall likewise be filed with the community development director and the city attorney. The burden of proof shall in all cases be upon the person seeking such review. (Ord. 1613 § 1 (Exh. A), 2008; Ord. 1233 § 1 (Exh. A), 1997)