Chapter 18.12
ADMINISTRATION AND ENFORCEMENT
Sections:
18.12.010 Community Development Director.
18.12.020 Community Development Director – Authority.
18.12.025 Building permits required.
18.12.030 Planning Commission.
18.12.060 Hearings Examiner – Authority.
18.12.120 Conditional use permit required.
18.12.130 Conditional use permit procedures.
18.12.160 Expiration of permit – Authorization for use.
18.12.170 Variances and adjustments.
18.12.180 Variance procedures.
18.12.185 Adjustment procedures.
18.12.190 Variance and adjustment permits – Expiration.
18.12.200 Appeals from Zoning Administrator decisions.
18.12.210 Effect of Hearings Examiner decisions.
18.12.240 Limitations on resubmission of applications.
18.12.250 Schedule of application fees.
18.12.260 Zoning amendments generally.
18.12.270 Zoning amendment procedures.
18.12.280 Comprehensive Plan amendment.
18.12.290 Violation – Procedures and penalty.
18.12.010 Community Development Director.
The office of City Community Development Director as defined by this title is established and granted that authority expressed and necessarily implied by the provisions of this title. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.020 Community Development Director – Authority.
A. Except where specifically provided otherwise by this title, the Community Development Director is vested with the authority to administer the provisions of this title and implement procedures and require forms necessary to exercise this authority.
B. Except where specifically provided otherwise by this title, the Community Development Director is vested with authority to interpret those provisions of this title in accordance with FMC 14.05.020.
C. The Community Development Director is authorized in enforcement of the provisions of this title to investigate written complaints of alleged violations; make periodic inspections for violation; order discontinuance of illegal use of land and/or structures; order discontinuance of illegal work being done; order removal of illegal additions, changes or structural alterations; or take other action authorized by this title. It is unlawful to violate the terms of such orders.
D. The Community Development Director may also be referred to herein as the Zoning Administrator and any reference to the Zoning Administrator is a reference to the Community Development Director. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.025 Building permits required.
It is unlawful to erect, move, add to or structurally alter a building or other structure without a permit therefor. No building permit shall be issued except in conformity with the provisions of this title and FMC Title 15. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006. Formerly 18.12.070)
18.12.030 Planning Commission.
The City Planning Commission, as established by Chapter 2.18 FMC, is established and granted that authority expressed and necessarily implied by the provisions of this title and as set forth in FMC 14.05.040. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.060 Hearings Examiner – Authority.
A. The Ferndale Hearings Examiner, as established by Chapter 14.17 FMC, is established and granted that authority expressed and necessarily implied by the provisions of this title and as set forth in Chapter 14.17 FMC.
B. Applications and appeals for Hearings Examiner action shall be filed in accordance with the processes and requirements set forth in FMC 14.09.040, 14.09.050, or 14.11.070, as appropriate.
C. Pursuant to procedural rules for City of Ferndale Hearings Examiner as codified in Chapter 14.17 FMC, the following procedures shall be adhered to for all hearings before the Hearings Examiner:
1. The Hearings Examiner shall cause to be made a verbatim record of the hearing either by audio recording or other means.
2. The Hearings Examiner may at his/her discretion either:
a. Make his/her decision in writing within 10 calendar days of the hearing unless the parties stipulate to an extension of the decision time, or if the issues are of such a complicated nature and/or the record is so voluminous that an extended decision time is warranted. The Hearings Examiner shall notify the parties of such an extension; or
b. Continue the hearing on the application/appeal to a specified time, date and place for any good cause he/she deems reasonable and appropriate, in which event no additional notice need be published.
3. The Hearings Examiner shall list findings of fact and conclusions of law in his/her decision on the application/appeal, including but not limited to the timing and completeness of applications, adherence to required notification requirements as set forth in FMC 14.13.090 and Chapter 14.15 FMC, and any other such findings specific to the individual request under review.
4. If a permit is granted, the Hearings Examiner decision shall reflect any conditions imposed in addition to the specified regulations of this title, which decision shall be signed by the Hearings Examiner.
D. The Hearings Examiner’s decision shall be final unless appealed by a party of record within 21 days of issuance to Whatcom County Superior Court in conformance with FMC 14.11.080 and RCW 36.70C.040. (Ord. 1976 § 2 (Exh. 2), 2016; Ord. 1972 § 1, 2016; Ord. 1906 § 1, 2015; Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.120 Conditional use permit required.
Except for uses that are otherwise authorized by the provisions of this title, it is unlawful to use or occupy or permit the use or occupancy of any property or portion thereof in any zone for other than its enumerated permitted principal and accessory uses, unless a conditional use permit has first been approved by the Hearings Examiner. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.130 Conditional use permit procedures.
Recognizing that there are certain uses enumerated as conditional uses in the respective zones that may, or may not, be detrimental to the public health, safety, morals and general welfare depending upon the facts of each particular case, the Hearings Examiner shall hear and decide conditional use permit applications. Any person desiring to obtain a conditional use permit shall submit an application therefor, together with the required application fee, to the Zoning Administrator, to be processed as follows:
A. The Zoning Administrator shall process applications in conformance with FMC 14.09.020.
B. A public hearing will be scheduled before the Hearings Examiner and notification given in conformance with FMC 14.15.050.
C. The Hearings Examiner may grant a conditional use permit only if he finds that the applicant has demonstrated the following facts:
1. The use is an enumerated conditional use in the zone wherein the property is located.
2. The notice of public hearing has been duly published.
3. The use, with appropriate conditions imposed, will not have significant adverse effects on the environment or on other uses, or the use, with appropriate conditions imposed, will mitigate, to the greatest extent practicable, all significant adverse effects on the environment.
4. The use, with appropriate conditions imposed, will be compatible with the existing uses, designs and appearance of the properties in its vicinity.
5. The use, with appropriate conditions imposed, will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.
6. The application for a conditional use permit has been reviewed by City staff and recommended administrative conditions have been provided to the Hearings Examiner.
D. If the Hearings Examiner finds that appropriate conditions have not been proposed by the applicant so as to authorize the granting of the permit, the Hearings Examiner may either deny the permit or impose such conditions upon the use as the Hearings Examiner finds will authorize the granting of the permit. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.160 Expiration of permit – Authorization for use.
A. With the exception of cases where the Hearings Examiner sets a specific expiration timeframe, all permits or authorizations for use approved in a Hearings Examiner decision will remain valid for a period of five years from the date of decision. If establishment of the use(s) authorized by a Hearings Examiner decision has not commenced within five years from the date of the decision, the permit or authorization shall expire and become null and void unless the Hearings Examiner grants an extension of not more than 12 months upon the written request of the owner prior to the expiration of said permit or authorization and subject to evidence that the owner intends to activate the permit or use within that extended time period.
B. If a conditional use permit is granted or other authorization is made by the Hearings Examiner for a use that does not involve the construction of a permanent structure, the conditional use permit shall be considered a temporary permit and shall expire five years from the date the grant of the permit becomes final, unless the Hearings Examiner grants an extension of an additional five-year period upon a written request prior to the expiration of said permit or authorization and evidence that the owner intends to extend the operation authorized under the conditional use permit or decision for the succeeding five-year period. Nothing in this section shall prohibit the Hearings Examiner from granting multiple extensions to a temporary conditional use permit; provided, that no single extension shall exceed five years in length. Further, nothing in this section shall limit the Hearings Examiner from granting a temporary permit or other authorization for a time period of less than five years in length. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.170 Variances and adjustments.
It is unlawful to fail to comply with all terms and requirements of this title except as permitted by variance granted by the Hearings Examiner or by adjustment granted by the Zoning Administrator. (Ord. 2197 § 2 (Exh. 1), 2022; Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.180 Variance procedures.
In special cases, applications for a variance will be submitted to the Hearings Examiner for review where, in the judgment of the Zoning Administrator, the proposal deviates from this title to such an extent that an administrative decision is not appropriate and a hearing is necessary. In such cases, the spirit and intent of this title may still be preserved by a limited relaxation of the literal enforcement of certain provisions of this title without having a detrimental effect upon the public health, safety, morals and general welfare. The Hearings Examiner shall hear and decide all such variance applications. Any person desiring to obtain a variance shall submit an application therefor, together with the application fee, to the Zoning Administrator to be processed as follows:
A. The Zoning Administrator shall process the variance application in conformance with FMC 14.09.020.
B. A public hearing will be scheduled before the Hearings Examiner and notification given in conformance with FMC 14.15.050.
C. The Hearings Examiner shall grant a variance application if they find that the applicant has demonstrated the following facts:
1. The variance is consistent with the spirit and intent of this title;
2. The notice of public hearing has been duly published;
3. The variance, either as applied for or with appropriate conditions imposed, will not have significant adverse effects on the environment or on other uses, or the variance as applied for or with appropriate conditions imposed will mitigate to the greatest extent practicable all significant adverse effects on the environment;
4. The variance will not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application was filed is located;
5. The variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located;
6. The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated;
7. Denial of the variance would result in unnecessary and undue hardship to the applicant; and
8. Such a variance would be properly granted to any applicant upon an identical showing of special circumstance relating to the subject property and the property or improvements in the vicinity in which the subject property is situated.
D. If the Hearings Examiner finds that appropriate conditions have not been proposed by the applicant so as to authorize the granting of the permit, the Hearings Examiner may either deny the permit or grant the variance based on the special circumstances documented by the Hearings Examiner. When the Hearings Examiner finds that a limited relaxation of strict compliance with the facts required by subsection (C) of this section will allow a property owner a reasonable, beneficial use consistent with the spirit and intent of this chapter without having a material detrimental effect upon the public interest or other properties in the vicinity, the Hearings Examiner may impose such conditions as they find will allow the granting of the variance. (Ord. 2197 § 2 (Exh. 1), 2022; Ord. 2040 § 1, 2018; Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.185 Adjustment procedures.
Applications for adjustments to vary from a numerical standard required by this title may be approved by the Zoning Administrator for no more than a 20 percent deviation from the standard, excepting density which cannot be adjusted. Adjustment applications will be reviewed to ensure the spirit and intent of this title are preserved by a limited relaxation of the literal enforcement of certain provisions of this title without having a detrimental effect upon the public health, safety, morals and general welfare. Any person desiring to obtain an adjustment shall submit an application on a form provided by the City together with the application fee, to the Zoning Administrator to be processed as follows:
A. The Zoning Administrator shall process the adjustment application in conformance with FMC 14.09.045.
B. The Zoning Administrator shall grant the adjustment application if they find that the applicant has demonstrated the following facts:
1. The adjustment is consistent with the spirit and intent of this title;
2. The notice of development application has been duly published;
3. The adjustment allows for development that is compatible with adjacent land uses, or it does not create a conflict with adjacent uses;
4. Approval of the adjustment does not create (a) violations(s) of any other adopted ordinance or code standard, and does not create the need for a variance;
5. Not more than three adjustments may be approved on the same lot or parcel in a continuous 12-month period; and
6. All applicable building code requirements and engineering design standards shall be met; and
7. The adjustment is reasonable in light of the facts and conditions applicable to the specific parcel of property and is not detrimental to adjacent properties or to the general public. (Ord. 2197 § 2 (Exh. 1), 2022)
18.12.190 Variance and adjustment permits – Expiration.
If establishment of the condition authorized by a variance or adjustment permit has not commenced within 12 months from the date the grant of the permit became final, the permit shall expire and be null and void unless the Hearings Examiner or Zoning Administrator grants an extension of not more than 12 months upon written request of the owner prior to expiration of the variance permit and evidence that the owner intends to activate the permit within that extended time period. (Ord. 2197 § 2 (Exh. 1), 2022; Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.200 Appeals from Zoning Administrator decisions.
Recognizing that there may be cases in which the spirit and intent of this title can be preserved by more than one interpretation of provisions of this title upon which reasonable minds could differ, the Hearings Examiner shall hear and decide all appeals from orders, recommendations, permits, decisions or determinations made by the Zoning Administrator in the administration and enforcement of the provisions of this title. Any person desiring to appeal from an order, recommendation, permit, decision or determination made by the Zoning Administrator shall submit an appeal application within 10 calendar days of such order, recommendation, permit, decision or determination in conformance with FMC 14.11.070, together with the required application, to be processed as follows:
A. The appeal application shall be processed and a public hearing scheduled before the Hearings Examiner and noticed in conformance with FMC 14.15.050.
B. The Hearings Examiner may grant the interpretation appealed from/for, which resulted in an order, recommendation, permit, decision or determination, only if he finds that the application has demonstrated the following facts:
1. The interpretation appealed for is a more reasonable interpretation of the wording and phraseology of the provisions of this title than the Community Development Director’s interpretation; and
2. The granting of the interpretation appealed for will not be materially detrimental to the public welfare or injurious to property in the City if uniformly applied in the future.
C. If the Hearings Examiner finds that one or more facts required by subsection (B) of this section have not been demonstrated by the applicant, the Hearings Examiner shall deny the appeal application. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.210 Effect of Hearings Examiner decisions.
Unless appealed to Whatcom County Superior Court, decisions or interpretations by the Hearings Examiner upon appeal of a decision by the Community Development Director shall be and remain in full force and effect until and unless negated prospectively by amendment to this title by the City Council. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.220 Time periods.
In computing any period of time prescribed or allowed by this title, the day of the act or event from which the designated period of time begins to run shall not be included, and the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.230 Applicants’ duties.
Applicants for permits or other relief from the provisions of this title shall thoroughly familiarize themselves with the provisions of this title, and shall provide complete and accurate information relating to the provisions of this title. The Community Development Director, Hearings Examiner, Planning Commission, and the City Council may, but are not obligated to, make personal investigations or inspections relative to conformance by the applicant with the provisions of this title. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.240 Limitations on resubmission of applications.
An application for a permit authorized or required by this title which has been denied shall not be resubmitted for a period of 12 months from the date of such denial unless the applicant can demonstrate a material change since its denial in either applicable laws, circumstances bearing upon issuance of the permit or the permit application itself. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.250 Schedule of application fees.
There is established a schedule of fees for processing applications and other requests authorized by this title in addition to fees required by other ordinances of the City. The current Fee Code Summary shall be posted in City Hall and may be altered or amended by ordinance of the City Council. No application shall be processed unless or until such fees have been paid in full nor shall any action be taken on proceedings before the Community Development Director, Planning Commission, Hearings Examiner or City Council unless or until preliminary charges and fees have been paid in full. The fees herein represent a portion of their processing cost and may not be refunded merely because an application is denied. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.260 Zoning amendments generally.
Except as authorized by a variance of the provisions of this title or an interpretation under FMC 18.12.200 and 18.12.210, it is unlawful to deviate from the provisions of this title without therefor first being adopted a zoning map amendment (rezone) or text amendment authorizing same. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.270 Zoning amendment procedures.
Recognizing that there will be changes in conditions and policies within the City that will from time to time justify changes in the official zoning map of the City or in the text of this title, the City Council upon its own motion, or any person(s) submitting a rezone or text amendment application, together with the required application fee, to the Community Development Director, may initiate a rezone or text amendment consideration to be processed as follows:
A. Determination of Consistency. Within 28 days of receipt of a complete application for a rezone or text amendment, the Community Development Director shall review the same for consistency with the City’s Comprehensive Plan and shall provide a written determination of consistency or inconsistency.
In making a determination as to whether a proposed rezone is consistent with the City’s Comprehensive Plan, the Community Development Director shall consider the following:
1. The type of land use;
2. The level of development, such as units per acre or other measures of density;
3. Infrastructure, including public facilities and services needed to serve the development; and
4. The character of the development, such as development standards.
If found to be consistent, the Community Development Director shall place the rezone or text amendment upon the Planning Commission’s next available meeting agenda that will allow sufficient time for compliance with the notice provisions of subsection (B) of this section. If the application is found to be inconsistent, the application shall not be considered further until amendments to the Comprehensive Plan, in conformance with FMC 18.12.280, have been approved, which would allow a determination of consistency to be made.
B. A public hearing will be scheduled before the Planning Commission and notification given in conformance with FMC 14.15.050.
C. The Planning Commission may in its discretion either:
1. Make its recommendation at said hearing; or
2. Continue its hearing on the amendment to a specified time, date and place on the condition that further information be provided, in which event no additional notice need be published.
D. The Planning Commission shall make a recommendation to the City Council containing its findings as to whether the following facts have been demonstrated:
1. The notice of public hearing has been duly published.
2. The amendment(s) will not have significant adverse effects on the environment or on other uses, or the amendment(s) with appropriate modifications will mitigate to the greatest extent possible all significant adverse effects on the environment.
3. The amendment(s) will be necessary or appropriate to effectuate the goals and objectives of the Comprehensive Plan of the City.
4. The amendment(s) will not designate an area for a use which:
a. Differs completely from that of surrounding land; and
b. Is inconsistent with that of surrounding land; and
c. Is inconsistent with the Comprehensive Plan; and
d. Is of benefit to a particular interest only; and
e. Is not of benefit to the community as a whole.
5. The amendment(s) will not be materially detrimental to the public welfare.
E. The Community Development Director shall place the rezone or text amendment application, together with the Planning Commission’s recommendation, upon the City Council’s next available meeting agenda.
F. The City Council, at a public meeting, shall make a decision on the application in accordance with the provisions of FMC 14.11.040. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.280 Comprehensive Plan amendment.
A. It is the intent of the City that all rezones and amendments to the regulations contained in this title be consistent with and implement the Comprehensive Plan and the most recently adopted public participation plan by following the steps described below. Any proposed rezone or text amendment that is determined to be inconsistent with the Comprehensive Plan shall not be approved.
B. Amendments or revisions to the Comprehensive Plan shall be considered no more frequently than on an annual basis except as authorized by state law.
C. The notification process for considering amendments or revisions to the Comprehensive Plan shall be as follows:
1. On or before April 1st of each year the Community Development Director shall publish notice in the City’s official newspaper indicating the availability of applications and that applications for amendments or revisions to the City’s Comprehensive Plan, including those amendments proposed by the City, will be received by no later than May 1st.
2. All applications shall be submitted on such forms as provided by the City and incomplete applications will not be accepted.
3. Providing a complete application has been received, the Community Development Director shall schedule a public hearing before the Planning Commission for the consideration of all such applications. While individual applications for Comprehensive Plan amendments will be processed separately, the City Council action must consider all applications as elements of a single Comprehensive Plan amendment, and must schedule a final public hearing for all applications contained within the annual amendment.
4. Notice of said hearing shall be given by at least two publications in the official newspaper, each of which shall not be more than 30 days and not less than 10 days prior to the hearing.
5. Notice of the hearing shall also be provided by mail to all persons from whom an application to amend or revise the Comprehensive Plan has been received and accepted prior to the deadline.
6. Notices shall specify the nature of proposed amendments, revisions or alternatives; shall describe the general effect on property; shall specify that written comments may be submitted prior to the hearing and the manner in which comments may be submitted.
7. As applicable, the notice requirements as specified in FMC 14.15.050 shall also apply.
D. At the hearing to consider amendments or revisions to the Comprehensive Plan, the Planning Commission shall consider each application, public testimony presented at the hearing, and any written comments submitted pursuant to subsection (C)(6) of this section.
E. The Planning Commission shall forward its written recommendation, for each proposed amendment or revision considered at the hearing, to the City Council for final action.
F. Following receipt of the recommendations of the Planning Commission, the City Council shall schedule a public hearing, for which notice in conformance with FMC 14.15.050 shall be provided.
G. At the public hearing, the Council shall consider each recommendation of the Planning Commission, public testimony presented at the hearing and any written comments received prior to the hearing.
H. Following the hearing, the City Council shall order amendments or revisions to the Comprehensive Plan consistent with its decisions.
I. Appeals from the decision of the City Council regarding Comprehensive Plan amendments shall be made in conformance with Chapter 36.70A or 36.70C RCW, as applicable. (Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006)
18.12.290 Violation – Procedures and penalty.
Enforcement procedures and the penalties resulting from violations of this chapter shall be administered pursuant to Chapter 1.12 FMC. (Ord. 1819 § 20, 2013)
18.12.300 Violation – Penalty – Equitable actions authorized.
Repealed by Ord. 1817. (Ord. 1750 § 1, 2012; Ord. 1723 § 1, 2012; Ord. 1400 § 2, 2006. Formerly 18.12.310)