Chapter 20.35 ADMINISTRATION AND SHORELINE PERMIT PROCEDURES

Chapter 20.35
ADMINISTRATION AND SHORELINE PERMIT PROCEDURES

Sections:

20.35.001 Purpose and applicability.

20.35.005 Authority and rule of liberal construction.

20.35.010 Shoreline permit types and review procedures.

20.35.015 Shoreline substantial development permits.

20.35.020 Substantial development permits for limited utility extensions.

20.35.025 Exemptions from shoreline substantial development permits.

20.35.030 Letter of exemption.

20.35.033 Developments not required to obtain shoreline permits or local reviews.

20.35.035 Shoreline conditional use permits.

20.35.040 Shoreline variance permits.

20.35.050 Appeals.

20.35.055 Effective date and duration of shoreline permits.

20.35.060 Compliance and enforcement.

20.35.065 Revisions to shoreline permits.

20.35.070 Rescission of shoreline permits and exemptions.

20.35.001 Purpose and applicability.

The purpose of this chapter is to establish a program for the administration and enforcement of the permit system for shoreline management provided by the Shoreline Management Act of 1971 (Chapter 90.58 RCW). This chapter applies to all development within shorelines of the state within the city of Burien’s shoreline jurisdiction. The city’s shoreline administrative procedures are intended to be consistent with all provisions, criteria, application requirements, public notice requirements, and local or state review procedures set forth in Chapter 173-27 WAC, Shoreline Management Permit and Enforcement Procedures. In the event of any inconsistencies between this shoreline master program and Chapter 173-27 WAC, the WAC shall govern.

All development in designated shoreline areas shall comply with the policy, provisions, and intent of the city of Burien shoreline master program. Definitions contained in the Shoreline Management Act of 1971 (Chapter 90.58 RCW) and the Shoreline Master Program Guidelines (Chapter 173-26 WAC) shall apply to all terms and concepts used in this chapter; provided, that definitions contained in this title shall be applicable where not in conflict with the Shoreline Management Act and the Shoreline Master Program Guidelines. In addition, the city will establish minimum application requirements, checklists, handouts, forms and fees for shoreline permits and shoreline exemption determinations.

Amendments to the city of Burien shoreline master program will not become effective until approval by the Washington State Department of Ecology pursuant to RCW 90.58.090 (Approval of master program). [Ord. 706 § 1 (Exh. A), 2019; Ord. 581 § 1 (Exh. A), 2013]

20.35.005 Authority and rule of liberal construction.

This chapter is promulgated pursuant to the authority and mandate of RCW 90.58.140(3) (Development Permits). Compliance with this chapter shall constitute compliance with the Shoreline Management Act, the Shoreline Master Program Guidelines, and the city of Burien shoreline master program (SMP) for evaluating permits on shorelines of the state.

As provided under RCW 90.58.900 (Liberal construction), the Shoreline Management Act (SMA) is exempted from the rule of strict construction. The SMA and the city of Burien shoreline master program shall, therefore, be liberally construed to give full effect to the purposes, goals, policies, and standards for which the SMA and this master program were enacted. Exemptions from the Act or this master program are to be narrowly construed. [Ord. 706 § 1 (Exh. A), 2019; Ord. 581 § 1 (Exh. A), 2013]

20.35.010 Shoreline permit types and review procedures.

(1) Nonexempt Development. Substantial development that is not otherwise exempt or uses that are identified as requiring conditional use permits within the city of Burien’s shoreline jurisdiction must obtain a shoreline substantial development permit, shoreline conditional use permit, or shoreline variance from the city.

(2) Exempt Development. Development within the city of Burien’s shoreline jurisdiction that is exempt from the requirement to obtain a shoreline substantial development permit shall comply with BMC 20.35.025. An exempt development that requires a conditional use permit or variance shall also comply with applicable provisions related to those processes.

(3) Pre-Application Meeting. The owner of the subject property or the authorized agent of the owner is encouraged to have a pre-application meeting with the shoreline administrator to determine the appropriate type of shoreline permit needed for the proposed action.

(4) Permit Review. Shoreline permits shall be reviewed using the land use decision processes in Chapter 19.65 BMC (Procedures).

Shoreline permits are processed as a Type 1 land use decision pursuant to Chapter 19.65 BMC (Procedures). A Type 1 decision is a written administrative decision issued following public notice, consideration of written public comments and review of a written staff recommendation. For the purposes of this master program, the shoreline administrator is the decision maker on a shoreline permit using the Type 1 land use decision. The Type 1 land use decision can be appealed to the city’s hearing examiner.

If any shoreline use or development is subject to other approvals or permits under another permit authority, such as the zoning or subdivision codes, they shall be subject to a consolidated review and the decision maker designated for the nonshoreline approval or permit shall be the decision maker for the consolidated review.

Depending on the underlying land use permits, the shoreline permit may be processed as a Type 2 or 3 land use review involving the hearing examiner or the city council.

(5) Public Notice. Public notice of an application for a shoreline permit shall be provided pursuant to Chapter 19.65 BMC (Procedures) unless otherwise specifically stated in this code. The minimum public notice period for shoreline permits shall be 30 days. If there are conflicting public notice time periods with state law or administrative codes, or local laws, the longer notice period shall be used.

(6) Department of Ecology Notification. The Washington Department of Ecology – SEA Division (Ecology) shall be notified of the permit decision consistent with the filing procedures in WAC 173-27-130.

(7) Compliance with Regulations. In the case of either a shoreline conditional use permit or a shoreline variance, the shoreline administrator shall determine the application’s compliance with the relevant review criteria and render a decision that is then forwarded to Ecology for review and approval. The city’s decision may include issuing the shoreline permit, issuing the shoreline permit with conditions, or denial of the requested shoreline permit.

(8) Shoreline Conditional Use Permit Required. A development activity or use that is listed as a conditional use pursuant to this 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. The conditional use permit application shall be processed as indicated in subsection (4) of this section.

(9) Shoreline Variance Required. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of the master program, such development or use can only be authorized by approval of a shoreline variance, consistent with WAC 173-27-170 (Variances). The variance application shall be processed as set forth in subsection (4) of this section.

Figure 9 is a flow chart illustrating the shoreline permit review process for a Type 1 shoreline permit.

Figure 9: Shoreline Permit Review for Type 1 Process

[Ord. 706 § 1 (Exh. A), 2019; Ord. 581 § 1 (Exh. A), 2013]

20.35.015 Shoreline substantial development permits.

(1) Substantial Development Permit Required. Prior to any shoreline substantial development within a shoreline of the state, a shoreline substantial development permit shall be obtained. Development undertaken pursuant to the issuance of a permit shall be limited to that specifically delineated on the official site plan submitted by the applicant. The development shall be in compliance with any and all conditions imposed upon such permit at its issuance, including any impact mitigation measures identified in documents submitted in support of the application.

(2) Approval Criteria. A substantial development permit shall be granted by the shoreline administrator only when the development proposed is consistent with the following:

(a) City of Burien comprehensive plan, Burien Municipal Code, and Burien shoreline master program; and

(b) The proposed development or activity must also be found to be consistent with policies, guidelines, and regulations of the state Shoreline Management Act (Chapter 90.58 RCW and Chapters 173-26 and 173-27 WAC).

(3) Authority to Condition. The shoreline administrator may attach conditions to the approval of permits and shoreline exemptions as necessary to assure this consistency. [Ord. 581 § 1 (Exh. A), 2013]

20.35.020 Substantial development permits for limited utility extensions.

(1) Procedures. An application for a substantial development permit for a limited utility extension shall be subject to the following procedures:

(a) The public comment period shall be 20 days. The public notice issued pursuant to BMC 19.65.040 (Notice of Application) shall explain how the public may obtain a copy of the city’s decision on the application no later than two days following its issuance consistent with BMC 19.65.055 (Notice of Decision). If there is an appeal of the decision to grant or deny the permit to the local government legislative authority, the appeal shall be finally determined by the legislative authority within 30 days.

(b) For purposes of this section, a limited utility extension means the extension of a utility service that:

(i) Is categorically exempt under Chapter 43.21C RCW (State Environmental Policy Act) for one or more of the following: natural gas, electricity, telephone, water or sewer;

(ii) Will serve an existing use in compliance with Chapter 90.58 RCW (Shoreline Management Act); and

(iii) Will not extend more than 2,500 linear feet within the shorelines of the state. [Ord. 581 § 1 (Exh. A), 2013]

20.35.025 Exemptions from shoreline substantial development permits.

(See WAC 173-27-040 (Developments exempt from substantial development permit requirement) for additional language and details.)

(1) Rule of Narrow Construction. There are several types of development activities that are exempt from the requirement to obtain a shoreline substantial development permit. State law requires that such exemptions be construed narrowly and, if any part of the development is not eligible for exemption, then a substantial development permit is required for the entire proposed development. No pre-application meeting is required for a shoreline exemption, and the city usually makes a determination on the exemption within 30 days of application. The Department of Ecology does not review shoreline exemptions unless state or federal agency approvals are required for the project.

(2) Shoreline Exemption Process. Exemption from the shoreline substantial development permit process does not constitute exemption from compliance with the policies and use regulations of the SMA (Chapter 90.58 RCW), the provisions of this master program, or other applicable city, state or federal permit requirements. The shoreline administrator is authorized to grant or deny requests for exemptions from the shoreline substantial development permit requirement for uses and developments within shorelines that are specifically listed in the Shoreline Permit Matrix (Figure 4) of this master program (BMC 20.30.001).

Such requests shall be applied for on forms provided by the shoreline administrator. The request shall be in writing and shall indicate the specific exemption of this SMP that is being applied to the development. The shoreline administrator shall prepare an analysis of the consistency of the project with this SMP and the SMA. As appropriate, the shoreline administrator’s analysis and decision shall include statements of exemption, which may contain conditions and/or mitigating measures of approval to achieve consistency and compliance with the provisions of the SMA and SMP. A denial of an exemption shall be in writing and shall identify the reason(s) for the denial.

The shoreline administrator’s actions on the issuance of a statement of exemption or a denial are subject to appeal. The appeal shall be processed using the appeal procedures for the underlying land use approval pursuant to Chapter 19.65 BMC (Procedures). If there is no underlying land use approval, the appeal shall be processed pursuant to the Type 1 appeal procedures in BMC 19.65.065 (Type 1 Decisions).

(3) Agency Approvals Required. Even though a project is exempt from obtaining a substantial development permit, it may still need approvals from other agencies. For example, if the proposal involves construction within navigable water or if the project includes dredging or placement of fill, a U.S. Army Corps of Engineers Section 10 and/or 404 permit is required. In addition, if the project involves construction or other activity waterward of the ordinary high water mark or if the project includes an activity that will use, divert, obstruct, or change the natural flow or bed of any state waters, a hydraulic project approval from the Washington State Department of Fish and Wildlife is required.

(4) Exemptions. The developments listed in WAC 173-27-040(2) shall not require a local shoreline substantial development permit. Developments not meeting the provisions in WAC 173-27-040(2) must obtain a shoreline substantial development permit. [Ord. 706 § 1 (Exh. A), 2019; Ord. 581 § 1 (Exh. A), 2013]

20.35.030 Letter of exemption.

(1) Letter of Exemption – General. Persons requesting an exemption must obtain a written letter of exemption verifying the proposed development as not subject to a shoreline substantial development permit. The letter of exemption must state how the proposed action is consistent with the policies and regulations of the city of Burien shoreline master program. For example, the approval of a building permit for a single-family residence and bulkhead can be conditioned on the basis of shoreline policy and use regulations. The building official or other permit authorizing official, through consultation with the shoreline administrator, shall attach shoreline management terms and conditions to a building permit or other permit approvals pursuant to RCW 90.58.140 (Development permits).

(2) State and Federal Agencies. Where shoreline development proposals are subject to review, approval, and permitting by a federal or state agency, the shoreline administrator shall prepare a letter and send to the Department of Ecology indicating the specific exemption provision from WAC 173-27-040 (Developments exempt from substantial development permit requirement) that is being applied to the development and provide a summary of the city’s analysis of the consistency of the project with the city of Burien shoreline master program and the state Shoreline Management Act. [Ord. 706 § 1 (Exh. A), 2019; Ord. 581 § 1 (Exh. A), 2013]

20.35.033 Developments not required to obtain shoreline permits or local reviews.

(1) Requirements to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other review to implement the Shoreline Management Act do not apply to the following:

(a) Remedial Actions. Pursuant to RCW 90.58.355, any person conducting a remedial action at a facility pursuant to a consent decree, order, or agreed order issued pursuant to Chapter 70.105D RCW, or to the Department of Ecology when it conducts a remedial action under Chapter 70.105D RCW.

(b) Boatyard Improvements to Meet NPDES Permit Requirements. Pursuant to RCW 90.58.355, any person installing site improvements for storm water treatment in an existing boatyard facility to meet requirements of a national pollutant discharge elimination system storm water general permit.

(c) WSDOT Facility Maintenance and Safety Improvements. Pursuant to RCW 90.58.356, Washington State Department of Transportation projects and activities meeting the conditions of RCW 90.58.356 are not required to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other local review.

(d) Projects consistent with an environmental excellence program agreement pursuant to RCW 90.58.045.

(e) Projects authorized through the Energy Facility Site Evaluation Council process, pursuant to Chapter 80.50 RCW. [Ord. 706 § 1 (Exh. A), 2019]

20.35.035 Shoreline conditional use permits.

(See also WAC 173-27-160 (Conditional use permits).)

(1) Purpose. The purpose of a shoreline conditional use permit is to allow greater flexibility in administering the use regulations of the Burien shoreline master program in a manner consistent with the policies of the Shoreline Management Act. This allows for review of a proposed action which may have a potential for compatibility concerns with nearby uses of other impacts that could be resolved under special circumstances with appropriate mitigation measures or conditions of approval.

(2) Criteria. Shoreline conditional uses identified in the Burien shoreline master program Shoreline Permit Matrix (BMC 20.30.001), or those that are unlisted uses but not prohibited uses, may be allowed only when the applicant can demonstrate all of the following:

(a) The proposed use will be consistent with RCW 90.58.020 (Use preference) and the Shoreline Management Act and the Burien shoreline master program;

(b) The proposed use will not interfere with the normal public use of public shorelines;

(c) The proposed use and development of the site and design of the project will be compatible with other permitted and planned uses within the area;

(d) The shoreline proposal will not result in significant adverse impacts on the shoreline environment and that the cumulative impact of additional requests for like actions in the area will remain consistent with the policies of the Shoreline Management Act and the Burien shoreline master program;

(e) That the proposed use will not cause a substantial detrimental effect to the public interest. In authorizing a shoreline conditional use permit, special conditions may be attached to the permit to prevent undesirable effects of the proposed use, to ensure consistency with the Shoreline Management Act and the Burien shoreline master program, or to address cumulative impacts of all like actions. [Ord. 581 § 1 (Exh. A), 2013]

20.35.040 Shoreline variance permits.

(See also WAC 173-27-170 (Variances).)

(1) Applicability. A shoreline variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in the Burien shoreline master program where there are extraordinary or unique circumstances relating to the physical character or configuration of property such that strict implementation of the policies, regulations or development standards would impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020 (Use preference) or the Burien shoreline master program. Shoreline 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 (Use preference). The applicant must demonstrate that extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect. A variance permit cannot be granted for a use.

(2) Landward Variance Criteria. Variance permits for development and/or uses that will be located landward of the ordinary high water mark and/or landward of a wetland may be authorized provided the applicant can demonstrate all of the following:

(a) The strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes reasonable use of the property;

(b) The hardship described in subsection (2)(a) of this section 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;

(c) The design of the project is compatible with other authorized developments within the area and with uses planned for the area under the city’s comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment;

(d) The variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;

(e) The variance requested is the minimum necessary to afford relief; and

(f) The public interest will suffer no substantial detrimental effect.

(3) Waterward Variance Criteria. Variance permits for development and/or uses that will be located waterward of the ordinary high water mark or within a wetland may be authorized provided the applicant can demonstrate all of the following:

(a) The strict application of the bulk, dimensional or performance standards set forth in the Burien shoreline master program precludes all reasonable use of the property;

(b) The proposal is consistent with the criteria established in subsections (2)(b) through (f) of this section; and

(4) Consideration of Cumulative Impacts. In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests 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 (Use preference) and shall not cause substantial adverse effects to the shoreline environment. [Ord. 581 § 1 (Exh. A), 2013]

20.35.050 Appeals.

Any person aggrieved by the granting, denying or rescinding of a shoreline substantial development permit pursuant to BMC 19.65.060 (Judicial Appeal) and RCW 90.58.140 (Development permits) may seek review from the state shorelines hearings board by filing a petition for review within 21 days of the date of filing as defined in RCW 90.58.140(6) (Development permits). [Ord. 581 § 1 (Exh. A), 2013]

20.35.055 Effective date and duration of shoreline permits.

Construction authorized by an approved shoreline permit shall not begin until 21 days after the date of filing as defined by RCW 90.58.140 (Development permits). This restriction shall be stated on the permit. Construction shall be commenced or, where no construction is involved, the use or activity shall be commenced within two years and the construction related activity shall terminate within five years after the effective date of a shoreline permit or the final settlement date of any associated appeals or legal actions regarding the proposed action; provided, that the city 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 before the expiration date and notice of the proposed extension is given to parties of record and the Department of Ecology. The city shall notify the Department of Ecology in writing of any change to the effective date of a permit, as authorized by this section, with an explanation of the basis for approval of the change. Any change to the time limits of a permit other than those authorized by this section shall require a new permit application. See also WAC 173-27-090 for additional information regarding duration of permits. [Ord. 581 § 1 (Exh. A), 2013]

20.35.060 Compliance and enforcement.

(1) Choice of Action/Penalty – Conflict. The choice of enforcement action to be taken and the severity of any penalty to be imposed shall be guided by the nature of the violation, the damage or risk to the public or to public resources, and/or the existence or degree of bad faith of the person or persons subject to the enforcement action. The provisions of this section shall supersede and take precedence over any other enforcement provisions of the Burien Municipal Code in conflict herewith.

(2) Order to Cease and Desist – Notice of Correction. In the event any person is or has engaged in activity that violates any of the provisions of this chapter, Chapter 90.58 RCW (Shoreline Management Act), or a permit issued pursuant to this chapter, the city may issue and serve upon such person or persons a cease and desist order and/or an order to take corrective action.

(a) Content of Order. The order shall set forth and contain:

(i) A description of the specific nature, extent, and time of violation and the damage or potential damage; and

(ii) A notice that the act or acts causing a violation or a potential violation shall immediately cease and desist or, in appropriate cases, the specific corrective action to be taken within a specific and reasonable time, which corrective action may include, but is not limited to, restoration and/or mitigation of the site and other property damaged.

(b) Effective Date. An order issued under this section shall become effective immediately upon receipt by the person to whom the order is directed.

(c) Compliance. Failure to comply with the terms of an order issued pursuant to this subsection (2) shall be a violation of this chapter and can result in enforcement actions including, but not limited to, the issuance of a civil penalty.

(d) Other Action. In addition to the issuance of the cease and desist order and/or an order to take corrective action, the city may take other enforcement action available at law including issuance of a civil notice of violation and penalties pursuant to subsection (3) of this section, seeking injunctive or declaratory relief, imposition of criminal penalties, and permit rescission as set forth in RCW 90.58.140 (Development permits). The city may combine an order issued pursuant to this subsection (2) with a notice of violation.

(3) Civil Penalties – Procedures – Remission.

(a) Civil Violations. It shall be a civil violation of this chapter for any person to:

(i) Use, construct or demolish any structure, or to conduct clearing, earth-moving, construction or other development not authorized under a substantial development permit, conditional use permit or variance permit, where such permit is required by this chapter;

(ii) Undertake or conduct any work which is not conducted in accordance with the plans, conditions, or other requirements in a permit approved pursuant to this chapter; provided, that the terms or conditions are stated in the permit or the approved plans;

(iii) Remove or deface any sign, notice, complaint or order required by or posted in accordance with this chapter;

(iv) Misrepresent any material fact in any application, plans or other information submitted to obtain any shoreline use or development authorization;

(v) Fail to comply with the requirements of a substantial development permit, conditional use permit or variance issued pursuant to this chapter;

(vi) Undertake a development or use on shorelines of the state without first obtaining a permit required pursuant to this chapter;

(vii) Fail to comply with an order issued under subsection (2) of this section.

(b) Amount of Penalty. The penalty for each civil violation shall not exceed $1,000 for each violation and shall not be less than $25.00. The amount of the penalty prescribed in the notice of violation shall be determined based upon the guidelines set forth in subsection (1) of this section.

(c) Separate Violation. Each calendar day that a civil violation occurs or continues to occur shall constitute a separate civil violation.

(d) Notice of Civil Violation. A notice of civil violation and penalty shall be imposed by issuance and service of a notice of civil violation in writing.

(e) Contents of Notice of Violation. The notice of violation shall set forth and contain:

(i) A description of the specific nature, extent, and time of violation(s) and the damage or potential damage; and

(iii) A notice that any order included in the notice of violation shall become effective immediately upon receipt by the person to whom the order is directed.

(f) Service of Notice of Violation. The notice of violation shall be served upon the person or persons alleged to have committed the violation either by certified mail with return receipt requested, at such person’s or persons’ last known address of record, or by personal service.

(g) Application for Remission or Mitigation. Any person incurring a penalty may apply in writing, within 30 days of receipt of the penalty, to the director for remission or mitigation of such penalty. The application shall be filed with the city clerk and shall identify the specific violation or violations for which the applicant seeks remission or mitigation, set forth the specific facts establishing the extraordinary circumstances which the applicant desires the director to consider, include complete copies of any documents or records applicant wishes the director to consider, include the mailing address (not a post office box) at which the applicant will receive notice of the decision, and shall be signed by the applicant. Incomplete applications and applications filed with the city after the 30-day period specified herein shall not be considered by the director.

Upon receipt of a complete application for remission or mitigation, the director, or his/her designee, shall consider the application, together with any information the director, or his/her designee, determines is relevant, and may remit or mitigate the penalty only upon a finding that that applicant has demonstrated extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty. When a penalty is imposed jointly by the Department of Ecology and the city, the penalty may be remitted or mitigated only upon such terms as both the Department of Ecology and the city agree.

(h) Right of Appeal.

(i) Any person issued a notice of civil violation pursuant to this subsection (3) may appeal the same to the city council; provided, that, if the penalty is imposed jointly by the city and the Department of Ecology, an appeal shall be filed with the Shorelines Hearings Board in accordance with WAC 173-27-290 (Appeal of civil penalty).

(ii) Timing of Appeal. Except as provided below, any person appealing a notice of civil violation to the city council shall file a written notice of appeal with the city clerk within 30 days of service of the notice of civil violation. In the event that a timely and completed application is filed with the city clerk for remission or mitigation, an appeal of a civil violation that is the subject of the application for remission or mitigation shall be filed within 30 days of applicant’s receipt of the city’s written decision regarding the remission or mitigation. The applicant shall be deemed to have received the written decision upon the earlier of the date of personal service of the written decision or three days after the written decision is deposited in the United States mail, in a postage prepaid, properly addressed envelope, using the applicant’s address as stated in the application.

(iii) Notice of Appeal. All appeals shall be in writing and contain the following:

(A) A heading in the words: “Before the Hearing Examiner”;

(B) A caption reading: “Appeal of ______” giving the name of all appellant(s);

(C) A brief statement in concise language of the violation or violations protested, together with any material facts claimed to support the contentions of the appellant, including a copy of the notice of civil violation(s) being appealed;

(D) A brief statement in concise language of the relief sought, and the reasons why it is claimed the protested notice of violation(s) should be reversed, modified or otherwise set aside;

(E) The signatures of appellant and appellant’s official mailing addresses;

(F) The verification (by declaration under penalty of perjury under the laws of the state of Washington) of the appellant as to the truth of the matters stated in the appeal.

(iv) Hearing. Within 10 days of receiving the written appeal, the city clerk shall fix a date, time and place for the hearing of the appeal. Such date shall be not less than 10 days nor more than 60 days from the date the appeal was filed; provided, that the hearing examiner may reset or continue a hearing upon request of the city or the party appealing, upon good cause shown, or sua sponte. Written notice of the date of the hearing shall be provided to the appellant by mailing such notice by first class mail, postage prepaid, to the appellant at the address shown on the notice of appeal. At the hearing the appellant shall be entitled to appear in person and be represented by counsel, and to offer evidence pertinent and material to those matters or issues specifically raised by the appellant in the written notice of appeal.

(v) Evidence. Unless otherwise provided by law, evidence that is material and relevant to determination of the matter consistent with the applicable legal requirements and subject to administrative rules of proceedings before the hearing examiner shall be admitted into the record whether or not such evidence was considered by the official issuing the notice of civil violation.

(vi) Findings – Conclusions – Recommendation. The hearing examiner shall conduct adjudicative proceedings, receive and examine all evidence it finds relevant to the subject matter, and prepare a record thereof. When the hearing examiner renders a recommendation, the examiner shall make and enter written findings and conclusions which support such decision. The findings and conclusions shall set forth and demonstrate the manner in which the decision or recommendation is consistent with applicable laws, regulations and policies of the city of Burien. The hearing examiner may recommend that the notice of civil violation be affirmed, dismissed or modified consistent with his/her findings and conclusions. The decision or recommendation shall be rendered as soon as possible but in all events within 20 working days of the conclusion of the hearing.

(vii) City Council. When taking final action, the city council shall make and enter findings of fact from the record before the hearing examiner which support its action, may affirm, reverse, modify, or remand the decision of the hearing examiner, and may adopt all or portions of the examiner’s findings and conclusions. The decision of the city council shall be a final decision.

(i) Penalties Due.

(i) Penalties imposed under this subsection (3) shall become due and payable 30 days after receipt of notice of civil violation unless application for remission or mitigation is made or an appeal is filed. Whenever an application for remission or mitigation is made, penalties shall become due and payable 30 days after receipt of the city’s decision regarding the remission or mitigation. Whenever an appeal of a penalty is filed, the penalty shall become due and payable upon completion of all review proceedings and upon the issuance of a final decision confirming the penalty in whole or in part.

(ii) If the amount of a penalty owed the city is not paid within 30 days after it becomes due and payable, the city may take actions necessary to recover such penalty.

(j) Aiding or Abetting. Any person who, through an act of commission or omission, procures, aids or abets in the civil violation shall be considered to have committed a civil violation for the purposes of the civil penalty.

(4) Criminal Penalties. In addition to incurring civil penalties under subsection (3) of this section, any person found to have willfully engaged in activities on shorelines of the state in violation of the provisions of this chapter shall be guilty of a gross misdemeanor, and shall be punished by:

(a) A fine of not less than $25.00 or more than $1,000;

(b) Imprisonment in the county/city jail for not more than 90 days; or

(c) Both such fine and imprisonment; provided, that the fine for the third and all subsequent violations in any five-year period shall not be less than $500.00 nor more than $10,000; provided further, that fines for violations of RCW 90.58.550 (Oil or natural gas exploration in marine waters), or any rule adopted thereunder, shall be determined under RCW 90.58.560 (Oil or natural gas exploration).

(5) Inspection Access. The director and his/her authorized representatives may, for the purpose of inspection for compliance with the provisions of a permit issued pursuant to this chapter, enter all properties that are subject to such a permit. All persons applying for a permit under this chapter shall be deemed to have given their consent to entry upon the property upon issuance of the permit. No owner or occupant of any premises shall fail to provide prompt entry to the director or authorized representative for the purposes of inspection under this section. If such entry is refused, the city shall have recourse to every remedy provided by law to secure entry, including issuance of a notice of correction and issuance of a notice of civil violation.

Whenever entry is required for purposes of inspection pursuant to this section, if the premises are occupied, the persons conducting the inspection shall present proper credentials and request entry, and if the premises are unoccupied, reasonable effort shall first be made to locate the owner of the premises and request entry.

(6) Other Remedies.

(a) In addition to the civil and criminal penalties provided for herein, the city may, pursuant to Chapter 90.58 RCW (Shoreline Management Act), bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the state located within the city of Burien in conflict with the provisions of Chapter 90.58 RCW (Shoreline Management Act), this chapter, a permit issued pursuant to this chapter, or other regulations adopted pursuant to state law or city code, and to otherwise enforce the provisions of the city’s shoreline master program.

(b) Any person subject to the regulatory provisions of this program or the Act who violates any provision thereof, or permit, or permit condition issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation. The city attorney may bring suit for damages under this section on behalf of the city and on the behalf of all persons similarly situated pursuant to Chapter 90.58 RCW (Shoreline Management Act).

(7) Abatement. Structures or development on shorelines considered by the director to present a hazard or other public nuisance to persons, properties or natural features may be abated by the city using all lawful means available. [Ord. 581 § 1 (Exh. A), 2013]

20.35.065 Revisions to shoreline permits.

(See also WAC 173-27-100 (Revisions to permits).)

(1) Revision Required. A permit revision is required whenever an applicant proposes substantive changes to the design, terms or conditions of a project from that which is approved in the shoreline permit. Changes are considered substantive if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the Burien shoreline master program and/or the policies and provisions of Chapter 90.58 RCW (Shoreline Management Act). Changes which are not substantive in effect do not require approval of a revision.

(2) Required Information. When an applicant seeks to revise a permit, the city will request from the applicant detailed plans and text describing the proposed changes. If the shoreline administrator determines that the proposed changes are within the scope and intent of the original permit, and are consistent with the Burien shoreline master program and the Shoreline Management Act, the city may approve a revision.

“Within the scope and intent of the original permit” means all of the following:

(a) No additional over-water construction is involved except that pier, dock, or float construction may be increased by 500 square feet or 10 percent from the provisions of the original permit, whichever is less;

(b) Ground area coverage and height may be increased a maximum of 10 percent from the provisions of the original permit;

(c) The revised permit does not authorize development to exceed height, lot coverage, setback, or any other requirements of the applicable master program except as authorized under a variance granted as the original permit or a part thereof;

(d) Additional or revised landscaping is consistent with any conditions attached to the original permit and with the applicable county master program;

(e) The use authorized pursuant to the original permit is not changed; and

(f) No adverse environmental impact will be caused by the project revision.

(3) New Permits Required. If the revision, or the sum of the revision and any previously approved revisions, will violate the criteria specified in subsections (2)(a) through (f) of this section, the city shall require that the applicant apply for a new shoreline permit. Revisions to permits may be authorized after original permit authorization has expired under WAC 173-27-080(2) (legally established structures). The purpose of such revisions shall be limited to authorization of changes which are consistent with this section and which would not require a permit for the development or change proposed under the terms of Chapter 90.58 RCW (Shoreline Management Act), the Burien shoreline master program and this section. If the proposed change constitutes substantial development, then a new permit is required; provided, this subsection shall not be used to extend the time requirements or to authorize substantial development beyond the time limits of the original permit. The revision approval, including the revised site plans and text consistent with the provisions of WAC 173-27-180 (Application requirements) as necessary to clearly indicate the authorized changes and the final ruling on consistency with this section, shall be filed with the Washington State Department of Ecology. In addition, the city shall notify parties of record of the action.

(4) Revisions to Conditional Use or Variance Permits. If the revision to the original permit involves a conditional use or variance, the city shall submit the revision to the Department of Ecology for the required state’s approval, approval with conditions, or denial, and shall indicate that the revision is being submitted under the requirements of this subsection. The Department of Ecology shall render and transmit to the city and the applicant its final decision within 15 days of the date of their receipt of the submittal from the city. The city of Burien shall notify parties of record of the Department of Ecology’s final decision.

(5) Effective Date. The revised permit is effective immediately upon final decision by the city or, when appropriate, upon final action by the Department of Ecology.

(6) Appeals. Appeals shall be to the State Shorelines Hearings Board in accordance with RCW 90.58.180 (Appeals) and shall be filed within 21 days from the date of receipt of the city’s action by the Department of Ecology or the date the Department of Ecology’s final decision is transmitted to the city and the applicant.

(7) Construction Authorization. Construction undertaken pursuant to that portion of a revised permit not authorized under the original permit is at the applicant’s own risk until the expiration of the appeals deadline. If an appeal is successful in proving that a revision is not within the scope and intent of the original permit, the decision shall have no bearing on the original permit. [Ord. 581 § 1 (Exh. A), 2013]

20.35.070 Rescission of shoreline permits and exemptions.

(See also RCW 90.58.140(8) (Development permits).)

Whenever any development or use is in violation of a permit or shoreline exemption issued pursuant to this chapter, the city may, concurrent with or as an alternative to any other remedy provided by this title or other law or ordinance, initiate permit rescission proceedings by scheduling a public hearing before the hearing examiner and serving the applicant with written notice thereof. Notice shall be provided in accordance with BMC 19.65.045 (Notice of Open Record Predecision Hearing) and contain a general description of the alleged noncompliance and date, time, and place of public hearing. It shall be served by registered mail at least 15 calendar days prior to such hearing. The permit rescission request shall be processed as a Type 2 decision in accordance with the procedures established in Chapter 19.65 BMC (Procedures). [Ord. 581 § 1 (Exh. A), 2013]