Chapter 20.25
SHORELINE PERMITS AND EXEMPTIONS
Sections:
20.25.010 Shoreline substantial permit criteria.
20.25.020 Variance permit criteria.
20.25.030 Conditional use permit criteria.
20.25.035 Developments not required to obtain shoreline permits or other reviews.
20.25.070 Statement of exemption.
20.25.080 Relationship to other laws.
20.25.010 Shoreline substantial permit criteria.
A. A substantial development permit shall be obtained for all proposed use and development of shorelines unless the proposal is specifically exempt pursuant to FMC 20.25.050.
B. In order for a substantial development permit to be approved, the Administrator must find that the proposal is consistent with the following criteria:
1. All policies and regulations of this title appropriate to the shoreline environment designation and the type of shoreline use or shoreline modification activity proposed shall be complied with, except those bulk and dimensional standards that have been modified by approval of a shoreline variance under FMC 20.25.020.
2. All policies of this title appropriate to the shoreline environmental designation and the type of shoreline use or shoreline modification activity proposed shall be considered and substantial compliance demonstrated.
3. For projects located on shorelines of statewide significance, the policies of SMC 20.05.060 shall also be adhered to. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.020 Variance permit criteria.
A. The purpose of a variance is to grant relief to specific bulk or dimensional requirements set forth in this title where there are extraordinary or unique circumstances relating to the property such that the strict implementation of this title would impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020. Use restrictions may not be varied from.
B. Variances may be granted in circumstances where denial would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances extraordinary circumstances shall be shown, and the public interest shall suffer no substantial detrimental effect.
C. Variances for development that will be located landward of the OHWM and wetlands may be authorized, provided the applicant can demonstrate all of the following:
1. That the strict application of the bulk or dimensional criteria set forth in this title precludes or significantly interferes with reasonable permitted use of the property.
2. That the hardship described in subsection (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 this title, and not, for example, from deed restrictions or the applicant’s own actions.
3. That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the shoreline environment.
4. That the variance authorized does not constitute a grant of special privilege not enjoyed by the other properties in the area, and will be the minimum necessary to afford relief.
5. That the public interest will suffer no substantial detrimental effect.
6. That there shall be no net loss of ecological function as a result of the proposed activity.
D. Variances for development that will be located waterward of the OHWM or within wetlands may be authorized provided the applicant can demonstrate all of the following:
1. That the strict application of any bulk or dimensional criteria in this title precludes all reasonable permitted use of the property; and
2. That the proposed variance will satisfy the criteria listed in subsections (C)(2) through (C)(5) of this section; and
3. That the public rights of navigation and use of the shorelines will not be materially interfered with by the granting of the variance; and
4. That the project will mitigate for environmental impacts, utilizing mitigation sequencing, as defined in Chapter 20.10 FMC.
E. In the granting of all variances, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area. For example, if variances were granted to other developments in the area where similar circumstances exist, the total of the variances should also remain consistent with the policies of RCW 90.58.020 and should not produce significant adverse effects to the shoreline environment or other users.
F. Other factors that may be considered in the review of variance requests include the conservation of valuable natural features and the protection of views from nearby roads, surrounding properties and public areas; provided, the criteria of this section are first met. In addition, variance requests based on the applicant’s desire to enhance the view from the subject development may be granted where there are no likely detrimental effects to existing or future users, other features or shore processes in the vicinity, and where reasonable alternatives of equal or greater consistency with this title are not available. In platted residential areas, variances shall not be granted which allow a greater height or lesser shore setback than what is typical for the immediate block or area.
G. Variances from the use regulations of this title are prohibited. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.030 Conditional use permit criteria.
A. The purpose of a conditional use permit is to allow greater flexibility in administering the use regulations of this title in a manner consistent with the policies of RCW 90.50.020. In authorizing a conditional use, special conditions may be attached to the permit by the City or the Department of Ecology to control any undesirable effects of the proposed use.
B. Uses specifically classified or set forth in this title as conditional uses may be authorized provided the applicant can demonstrate all of the following:
1. That the proposed use, when properly conditioned, will be consistent with the policies of RCW 90.58.020 and this title.
2. That the proposed use, when properly conditioned, will not interfere with normal public use of public shorelines.
3. That the proposed use of the site and design of the project, when properly conditioned, will be compatible with other permitted uses within the area.
4. That the proposed use, when properly conditioned, will cause no significant adverse effects to the shoreline environment in which it is to be located.
5. That the public interest suffers no substantial detrimental effect.
C. Other uses not specifically classified or set forth in this title, including the expansion of a single-family nonconforming use pursuant to Chapter 20.60 FMC, may be authorized as conditional uses provided the applicant can demonstrate that the proposal will satisfy the criteria set forth in subsection (B) of this section, and that the use clearly requires a specific site location on the shoreline not provided for under the title, and extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of this title. Conditional use permits shall not authorize uses that are prohibited by the provisions of this title; provided, existing nonconforming uses may be authorized pursuant to Chapter 20.60 FMC.
D. In the granting of all conditional use permits, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the sum of the conditional uses and their impacts should also remain consistent with the policies of RCW 90.58.020 and should not produce a significant adverse effect to the shoreline environment. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.035 Developments not required to obtain shoreline permits or other reviews.
Requirements to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other review conducted by the City of Ferndale to implement this title do not apply to the following. It shall be the responsibility of the applicant to provide documentation to the City necessary to demonstrate compliance.
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 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, including any person installing site improvements for stormwater treatment in an existing boatyard facility to meet requirements of a national pollutant discharge elimination system stormwater general permit.
C. WSDOT facility maintenance and safety improvements and activities, pursuant to RCW 90.58.356.
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. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.045 Interpretation.
A. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemptions from the substantial development permit process.
B. An exemption from the substantial development permit process is not an exemption from compliance with the State Shoreline Management Act or this title, nor from any other regulatory requirements. To be authorized as an exemption, all uses and developments must be consistent with the policies and provisions of this title and the Shoreline Management Act. A development or use that is listed as a conditional use pursuant to this title or is an unlisted use, must obtain a shoreline conditional use permit even though the development or use does not require a substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of this title, such development or use can only be authorized by approval of a shoreline variance permit.
C. The burden of proof that a development or use is exempt is on the applicant. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project. The Administrator may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the Act and the local master program. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.050 Exemptions listed.
A. The following activities shall be considered exempt from the requirement to obtain a shoreline substantial development permit. A statement of exemption, as provided for in FMC 20.25.070, may be sought by a proponent for any of the listed categories below; however, such statement shall be required only for those activities listed in this section.
1. Any development of which the total cost or fair market value, whichever is higher, does not exceed $8,504 or as adjusted by the State Office of Financial Management, if such development does not materially interfere with the normal public use of the water or shorelines of the state. For the purpose of determining whether or not a permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state as defined in RCW 90.58.030(2)(g). The total cost or fair market value of the development shall include the fair market value of any donated, contributed, or found labor, equipment, or materials;
2. Normal maintenance or repair of existing legally established structures or developments, including repair of damage by accident, fire or by the elements. “Normal maintenance” includes those usual acts to prevent a decline, lapse or cessation from a lawfully established condition. “Normal repair” means to restore a development to a state comparable to its original condition within a reasonable period after decay or partial destruction except where repair causes substantial adverse effects to the shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment;
3. Construction of the normal protective bulkhead common to single-family residences. A “normal protective” bulkhead includes those structural and nonstructural developments installed at or near and parallel to the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used for backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead then the replacement bulkhead must be located at or near the actual ordinary high water mark. Beach nourishment and bioengineering erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by the Department of Fish and Wildlife;
4. Emergency construction necessary to protect property from damage by the elements does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the Administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, pursuant to Chapter 90.58 RCW, Chapter 173-27 WAC, or this title, obtained. All emergency construction shall be consistent with the policies of Chapter 90.58 RCW and this title. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency;
5. Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities, on shorelands, construction of a barn or similar agricultural structure, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels; provided, that a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;
6. Construction or modification, by or under the authority of the Coast Guard or a designated port management authority, of navigational aids such as channel markers and anchor buoys;
7. Construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of 35 feet above average grade level and which meets all requirements of the City, other than requirements imposed pursuant to Chapter 90.58 RCW. Construction authorized under this exemption shall be located landward of the ordinary high water mark. “Single-family residence” means a detached dwelling designed for and occupied by one family, including those structures and developments within a contiguous ownership which are a normal appurtenance. An “appurtenance” is necessarily connected to the use and enjoyment of a single-family residence and is located landward of the ordinary high water mark and the perimeter of a wetland. On a statewide basis, normal appurtenances include a garage; deck; driveway; utilities; fences; installation of a septic tank and drainfield and grading which does not exceed 250 cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. Construction authorized under this exemption shall be located landward of the ordinary high water mark;
8. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of a single-family and multifamily residences. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances. The private dock exemption applies in fresh waters when the fair market value of the dock does not exceed:
a. Twenty-two thousand five hundred dollars or as adjusted by the State Office of Financial Management for docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced; or
b. Eleven thousand two hundred dollars or as adjusted by the State Office of Financial Management for all other docks constructed in fresh waters.
c. If subsequent construction occurs within five years of completion of the prior construction, and the combined fair market value of the subsequent and prior construction exceeds the amount specified above, the subsequent construction shall be considered a substantial development for the purpose of this chapter;
9. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;
10. The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;
11. Operation, maintenance, and modifications to of any system of dikes, levees, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed or utilized, primarily as a part of an agricultural drainage or diking system;
12. Any project with a certification from the governor pursuant to Chapter 80.50 RCW;
13. Site exploration and investigation activities that are a prerequisite to preparation of an application for development authorization under this title, if:
a. The activity does not interfere with the normal public use of surface waters; and
b. The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values; and
c. The activity does not involve the installation of any structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity; and
d. A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the City to ensure that the site is restored to preexisting conditions; and
e. The activity is not subject to the permit requirements of RCW 90.58.550;
14. The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other state agencies under Chapter 43.21C RCW;
15. Watershed restoration projects as defined in RCW 89.08.460. The City shall review the projects for consistency with the shoreline master program in an expeditious manner and shall issue its decision along with any conditions within 45 days of receiving all materials necessary to review the request for exemption from the applicant. No fee may be charged for accepting and processing requests for exemption for watershed restoration projects as used in this section;
16. A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, when all of the following apply:
a. The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to accomplish the intended purpose;
b. The project received hydraulic project approval (HPA) by the Department of Fish and Wildlife pursuant to Chapter 77.55 RCW;
c. The Administrator has determined that the project is consistent with this title. The Administrator shall make such determination in a timely manner and provide it by letter to the project proponent; and
d. Fish habitat enhancement projects that conform to the provisions of RCW 77.55.181 and are determined to be consistent with this title;
17. The external or internal retrofitting of an existing structure for the exclusive purpose of compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) or to otherwise provide physical access to the structure by individuals with disabilities (RCW 90.58.030). (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.070 Statement of exemption.
A. In accordance with WAC 173-27-040(1) and FMC 20.25.045, all exemptions shall be construed narrowly.
B. Whenever the exempt activity also requires a U.S. Army Corps of Engineers Section 10 permit under the Rivers and Harbors Act of 1899 or a Section 404 permit under the Federal Water Pollution Control Act of 1972, a letter of exemption shall be sent to the applicant and Ecology pursuant to WAC 173-27-050.
C. The Administrator is authorized to grant or deny requests for statements of exemption from the shoreline substantial development permit requirement for activities within shorelines which are specifically listed in FMC 20.25.050. Such statements shall be applied for on forms provided by the Administrator. The statement shall be in writing and shall indicate the specific exemption from FMC 20.25.050 that is being applied to the development and provide a summary of the Administrator’s analysis of the consistency of the project with this title and the Shoreline Management Act. A denial of an exemption shall be in writing and shall identify the reason(s) for the denial. The Administrator’s actions on the issuance of a statement of exemption or a denial are subject to appeal pursuant to Chapters 14.11 and 20.15 FMC. Statements of exemption or denial shall be transmitted to the applicant as well as to Ecology.
D. No dredging, stream control works, historic site alteration, landfill or excavation, dock, shore defense works, freestanding signs, or any development within an aquatic or conservancy shoreline designation may commence until a statement of exemption has been obtained from the Administrator; provided, that no statement of exemption is required for emergency development pursuant to WAC 173-27-040(2)(d).
E. No statement of exemption may be required for other uses or developments nominally exempt pursuant to FMC 20.25.040 unless the Administrator has cause to believe a substantial question exists as to qualifications of the specific use or development for the exemption.
F. Exemptions shall expire as set forth in FMC 20.15.120. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)
20.25.080 Relationship to other laws.
Obtaining a shoreline permit or statement of exemption for a development or use does not excuse the applicant from complying with any other federal, state, or local laws and regulations applicable to such development or use. (Ord. 2252 § 1 (Exh. A), 2024; Ord. 2251 § 1 (Exh. A), 2024)