Chapter 16.75
PROCEDURES
Sections:
16.75.005 Additional administrative procedures.
16.75.010 Substantial development – Permit required – Exemption.
16.75.015 Developments not requiring shoreline permits or local reviews.
16.75.020 Permits – Prerequisite to other permits.
16.75.025 Permits – Reasonable accommodation.
16.75.040 Permits – Conditional use.
16.75.045 Public agency or utility maintenance plans.
16.75.050 Alteration or reconstruction of nonconforming use or development.
16.75.055 Relief from Shoreline Master Program development standards and use regulations.
16.75.060 Permits – Combined hearing authority.
16.75.070 Permits – Approval or disapproval – Notification – Additional conditions – Limitations.
16.75.090 Rules of city manager.
16.75.110 Shoreline environment redesignation.
16.75.120 Redesignation applications.
16.75.130 Redesignation initiated by motion.
16.75.140 Frequency of consideration of shoreline redesignations.
16.75.150 Shoreline redesignation and site-specific land use map amendment or zone reclassification.
16.75.160 Criteria for hearing examiner review.
16.75.003 Interpretation.
The city manager shall make administrative interpretations of this Shoreline Master Program and the Shoreline Management Act in accordance with Chapter 18.10 KMC. The city manager shall consult with the Washington State Department of Ecology to ensure that any formal written interpretations are consistent with the purpose and intent of Chapter 90.58 RCW and Chapter 173-26 WAC. [Ord. 20-0506 § 3 (Exh. 1).]
16.75.005 Additional administrative procedures.
In addition to the requirements of Chapter 19.25 KMC, the following administrative procedures apply to development in the shoreline jurisdiction. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.010 Substantial development – Permit required – Exemption.
A. No development shall be undertaken by any person within the shoreline jurisdiction unless such development is consistent with the policies of RCW 90.58.020 and the Shoreline Master Program. Development within the shoreline jurisdiction shall conform to the Shoreline Master Program whether or not the development requires a permit from the City of Kenmore.
B. A substantial development permit shall be required for all proposed uses and modifications unless the proposal is specifically exempt from the definition of substantial development in RCW 90.58.030 and WAC 173-27-040 or is exempted by RCW 90.58.140, WAC 173-27-044 or WAC 173-27-045.
C. Any person claiming exception from the permit requirements of this chapter as a result of the exemptions described in subsection B of this section may be required to submit an application to the city manager for such an exemption in the manner prescribed by the city manager. A person requesting an exemption shall provide a written statement of exemption for activities that are exempt from the substantial development permit requirement in subsection B of this section when:
1. WAC 173-27-040 applies; or
2. The activity will occur waterward of the ordinary high-water mark.
D. Whether or not a written statement of exemption under WAC 173-27-050 is required, all permits and approvals issued for development activities within the shoreline jurisdiction shall include a record of review indicating compliance with the City of Kenmore Shoreline Master Program.
E. Conditions of approval may be attached to the approval of substantial development permits, statements of exemptions, or exempted developments as necessary to ensure consistency of the project with the City of Kenmore Shoreline Master Program. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.015 Developments not requiring shoreline permits or local reviews.
A. 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:
1. 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.
2. Boatyard improvements to meet NPDES permit requirements. Pursuant to RCW 90.58.355, 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.
3. 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.
4. Projects consistent with an environmental excellence program agreement pursuant to RCW 90.58.045.
5. Projects authorized through the Energy Facility Site Evaluation Council process, pursuant to Chapter 80.50 RCW. [Ord. 20-0506 § 3 (Exh. 1).]
16.75.020 Permits – Prerequisite to other permits.
In the case of development subject to the permit requirements of this title, Kenmore shall not issue any other permit for such development until such time as approval has been granted pursuant to this title. Any development subsequently authorized by Kenmore shall be subject to the same terms and conditions which apply to the development authorized pursuant to this title, in addition to any other terms or conditions required for the subsequent authorization. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.025 Permits – Reasonable accommodation.
The Federal Fair Housing Act and the Americans with Disabilities Act (ADA) require that reasonable accommodations be made in rules, policies, practices, or services, when such accommodations may be necessary to afford handicapped people equal opportunity to use and enjoy a dwelling or structure. The city manager is therefore authorized to make accommodations in the provisions of this title when the city manager determines that such accommodations reasonably may be necessary in order to comply with such Acts. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.030 Permits – Variance.
A. The city manager is authorized to grant a variance from the performance standards of the City of Kenmore Shoreline Master Program only under the conditions enumerated in WAC 173-27-170 (Review Criteria for Variance Permits) and using the procedures outlined in Chapter 19.25 KMC. Shoreline variance permits are also subject to review and approval by the Washington Department of Ecology (RCW 90.58.140(10)). The purpose of a variance permit is limited to granting relief from development standards set forth in the City of Kenmore Shoreline Master Program where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of the City of Kenmore Shoreline Master Program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020.
B. A variance from City zoning code requirements shall not be construed to mean a variance from the City of Kenmore Shoreline Master Program use or development regulations and vice versa.
C. Shoreline variances may not be used to permit a use that is specifically prohibited in Chapter 16.50 KMC.
D. The burden of proving that a proposed variance meets the requirements of subsections A through C of this section shall be on the applicant; absence of such proof shall be grounds for denial of the application.
E. The fee which shall accompany an application for a shoreline variance shall be as adopted by resolution. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.040 Permits – Conditional use.
A. The city manager is authorized to issue shoreline conditional use permits only under the conditions enumerated in RCW 90.58.140 and 90.58.143 and WAC 173-27-160 and using the procedures outlined in Chapter 19.25 KMC. Conditional use permits are also subject to review and approval by the Washington Department of Ecology (RCW 90.58.140(10)).
B. The burden of proving that a proposed shoreline conditional use meets the criteria enumerated in WAC 173-27-160 shall be on the applicant. Absence of such proof shall be grounds for denial of the application; provided, however, that the city manager is authorized to determine and impose, on a case-by-case basis, those conditions and standards which may be required to enable any proposed shoreline conditional use to satisfy the criteria established in WAC 173-27-160. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.045 Public agency or utility maintenance plans.
A. To simplify the future review of maintenance activities that are or will be ongoing in association with new or existing public parks, utilities, streets, or other public agency or utility facilities, the city manager may approve a five-year maintenance plan that establishes best management practices or protocols to assure no net loss of shoreline ecological functions.
The maintenance plan shall contain, as applicable:
1. A description of proposed maintenance activities, including the area of disturbance and type, methods and frequency of maintenance activities;
2. Best management practices for maintenance activities;
3. A description of in-stream or in-lake habitat protection measures;
4. A description of riparian and wetland protection measures;
5. A description of site-appropriate water use management activities, including using less water-dependent landscaping, maximizing the efficiency of the water application system, and reducing the area irrigated;
6. A description of stormwater management practices to treat stormwater runoff to reduce both water quantity and water quality impacts;
7. A description of erosion and sediment control practices that prevent off-site movement of sediment from stored soils and potential surface erosion areas;
8. A description of revegetation or restoration activities following maintenance;
9. A description of chemical and nutrient use and containment practices that demonstrate minimization of overall inputs of these contaminants, restrict the type of inputs, and develop an acceptable method of application through a comprehensive management program, such as integrated pest management (IPM);
10. Specific performance standards for subsections (A)(3) through (9) of this section, as applicable, and corrective actions that will be implemented if the performance standard(s) is not met; and
11. Demonstration that the proposed work qualifies for a shoreline exemption and that the work complies with the City of Kenmore Shoreline Master Program. [Ord. 20-0506 § 3 (Exh. 1).]
16.75.050 Alteration or reconstruction of nonconforming use or development.
A. The review of applications for the modification of a nonconforming use or development shall be subject to the regulations enumerated in KMC 18.100.020 through 18.100.060, and 18.100.080 through 18.100.087, except that a nonconforming bulkhead may be replaced with a new bulkhead; provided, that:
1. The reconstructed bulkhead does not create new dry land; and
2. At least 40 percent of the bulkhead is replaced with a pocket cove or beach; and
3. The proposed reconstruction would substantially reduce the impacts of the existing structure on shoreline ecological functions; and
4. The project would not cause adverse impacts on adjacent shoreline uses.
B. Existing legal uses as defined under KMC 18.20.965 are considered existing legal uses within the shoreline jurisdiction.
C. Expansion of a nonconforming use or structure may be approved through the provisions of KMC 16.75.040 when the applicant demonstrates the following:
1. The project would substantially reduce the impacts of the existing use or structure on shoreline ecological functions; and
2. The proposed expansion would not cause adverse impacts on adjacent shoreline uses.
3. For a nonconforming structure located on land, any waterward expansion of the structure into the required setback would be offset by removal of another nonconforming structure of equal or greater footprint area in the shoreline setback, and the shoreline setback area would be restored with native riparian vegetation.
D. Expansion of a nonconforming dock or pier may be allowed by the city manager when the applicant demonstrates the following:
1. The existing nonconformance results from noncompliance with the standards in KMC 16.55.050(B); and
2. The proposed expansion meets all other applicable standards in KMC 16.55.050; and
3. The proposed expansion would not increase the overwater coverage of the dock or pier to more than the existing condition or above the limits established in KMC 16.55.050(B), whichever is greater; and
4. The project would reduce the impacts of the existing dock or pier on critical fish habitat as demonstrated through the habitat management plan for the development; and
5. The proposed expansion would not cause adverse impacts on adjacent shoreline uses. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.055 Relief from Shoreline Master Program development standards and use regulations.
A. Purpose of Section. This section incorporates statutory direction from RCW 90.58.580. In adopting RCW 90.58.580, the legislature found that restoration of degraded shoreline conditions is important to the ecological function of our waters. However, restoration projects that shift the location of the shoreline can inadvertently create hardships for property owners, particularly in urban areas. Hardship may occur when a shoreline restoration project shifts shoreline jurisdiction into areas that had not previously been regulated under the act or shifts the location of required shoreline buffers. The intent of this section is to provide relief to property owners in such cases, while protecting the viability of shoreline restoration projects.
B. Conditions and Criteria for Providing Relief. The City may grant relief from standards and use regulations in this title when the following apply:
1. A shoreline restoration project causes or would cause a landward shift in the ordinary high-water mark, resulting in the following:
a. Land that had not been regulated under this title prior to construction of the restoration project is brought under shoreline jurisdiction; or
b. Additional regulatory requirements apply due to a landward shift in required shoreline buffers or other regulations of the Kenmore SMP and this title; and
c. Application of this title would preclude or interfere with use of the property permitted by local development regulations, thus presenting a hardship to the project proponent.
2. The proposed relief meets the following criteria:
a. The proposed relief is the minimum necessary to relieve the hardship;
b. After granting the proposed relief, there is net environmental benefit from the restoration project;
c. Granting the proposed relief is consistent with the objectives of the shoreline restoration project and consistent with the Kenmore Shoreline Master Program and this title; and
d. Where a shoreline restoration project is created as mitigation to obtain a development permit, the project proponent required to perform the mitigation is not eligible for relief under this section.
3. The application for relief must be submitted to the Washington State Department of Ecology for written approval or disapproval. This review must occur during Ecology’s normal review of a shoreline substantial development permit, conditional use permit, or variance. If no such permit is required, then Ecology shall conduct its review when the City provides a copy of a complete application and all supporting information necessary to conduct the review.
a. Ecology shall provide at least 20 days’ notice to parties that have indicated interest to Ecology in reviewing applications for relief under this section, and post the notice on its website.
b. Ecology shall act within 30 calendar days of the close of the public notice period, or within 30 days of receipt of the proposal from the City if additional public notice is not required.
C. A substantial development permit is not required on land that is brought under shoreline jurisdiction due to a shoreline restoration project creating a landward shift in the ordinary high- water mark. [Ord. 20-0506 § 3 (Exh. 1).]
16.75.060 Permits – Combined hearing authority.
A. In those cases when proposed development under the jurisdiction of this title also requires a Type 3 or Type 4 decision and a public hearing before the hearing examiner is required, the department shall issue a recommendation on the proposal, and the examiner shall conduct a public hearing to receive evidence relating to the issuance of a substantial development permit or exemption therefrom, a shoreline management conditional use permit and/or a shoreline management variance, if applicable.
B. The examiner shall conduct the hearing in accordance with the provisions of Chapter 19.30 KMC and shall exercise the powers therein.
C. The decision of the examiner shall be the decision of the city manager and shall be the final decision of the City with regard to shoreline management. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.070 Permits – Approval or disapproval – Notification – Additional conditions – Limitations.
A. In granting or extending a permit, the city manager may attach thereto conditions, modifications, or restrictions regarding the location, character and other features of the proposed development and related development and activity outside of the shoreline as necessary to make the permit compatible with the criteria set forth in KMC 16.05.030 and 16.75.010. Such conditions may include a requirement to post a performance bond assuring compliance with permit requirements, terms and conditions.
B. Issuance of a substantial development permit does not constitute approval pursuant to any other federal, State or City laws or regulations. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.080 Appeals.
A. Appeals from the final decision of the City with regard to shoreline management shall be governed solely by the provisions of RCW 90.58.180, which shall prevail over any conflicting appeal procedures set forth in Chapter 19.25 KMC.
B. After all local permit decisions are complete and the permit documents are amended to incorporate any resulting changes, the city manager shall mail the permit using return receipt requested mail to the Department of Ecology regional office and the Office of the Attorney General. Projects that require both conditional use permits and/or variances shall be mailed simultaneously with any substantial development permits for the project.
1. The permit and documentation of the final local decision will be mailed together with the complete permit application; a findings and conclusions letter; a permit data form (cover sheet); and applicable SEPA documents.
2. Consistent with RCW 90.58.140(6), the State’s Shorelines Hearings Board 21-day appeal period starts with the date of filing, which is defined below:
a. For projects that only require a substantial development permit (SDP): the date that Ecology receives the City decision.
b. For a conditional use permit (CUP) or variance: the date that Ecology’s decision on the CUP or variance is transmitted to the applicant and City.
c. For SDPs simultaneously mailed with a CUP or variance to Ecology: the date that Ecology’s decision on the CUP or variance is transmitted to the applicant and the City.
C. The effective date of the City’s decision shall be the date of filing with the Department of Ecology as defined in RCW 90.58.140.
D. When a hearing and decision have occurred pursuant to KMC 16.75.060 and the examiner’s recommendation with regard to disposition of a proposed development pursuant to KMC Titles 18 and 19 requires city council action, the final decision of the City pursuant to this title shall be effective on the date of filing as defined in RCW 90.58.140 for the purposes of appeal as provided in RCW 90.50.140. However, no development may occur until the city council has taken final action on the examiner’s recommendation required by KMC Titles 18 and/or 19. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.090 Rules of city manager.
The city manager is authorized to adopt such rules as are necessary and appropriate to implement this chapter. The city manager may prepare and require the use of such forms as are necessary to its administration. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.100 Enforcement.
A. The city manager is authorized to enforce the provisions of this title, the ordinances and resolutions codified in it, and any rules and regulations promulgated thereunder pursuant to the enforcement and penalty provisions of Chapter 1.20 KMC.
B. The city manager shall bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the State in conflict with the provisions of this title or Chapter 90.58 RCW or in conflict with the Shoreline Master Program, or rules or regulations adopted pursuant thereto, and to otherwise enforce the provisions of this chapter and Chapter 90.58 RCW.
C. Any person subject to the regulatory provisions of this title who violates any provision of this title or the provisions of a permit 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, within a reasonable time, to its condition prior to such violation. The city manager shall bring suit for damages under this subsection on behalf of the City. Private persons shall have the right to bring suit for damages under this subsection on their own behalf and on behalf of all persons similarly situated. The court on its discretion may award attorney’s fees and costs of the suit to the prevailing party. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.110 Shoreline environment redesignation.
A. Shoreline environments designated by the Shoreline Master Program may be redesignated by the city council upon finding that such a redesignation will be consistent with the standards in KMC 16.75.160 and the requirements of WAC 173-26-100 and 173-26-110. A shoreline redesignation may be initiated by an applicant or by motion of the city council and requires Department of Ecology approval.
B. A redesignation initiated by an applicant shall be made on forms and processed in a manner prescribed in KMC 16.75.120. A redesignation initiated by the city council shall follow the process in KMC 16.75.130.
C. The fee which shall accompany an application for a shoreline redesignation shall be as adopted by resolution. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.120 Redesignation applications.
A. A redesignation initiated by an applicant, as described in KMC 16.75.110(B), must follow the procedures in Chapters 19.25 and 19.30 KMC for shorelines redesignations and must include the following information in addition to the requirements in Chapter 19.25 KMC:
1. Applicant information, including signature, telephone number and address;
2. The applicant’s interest in the property, such as owner, buyer or consultant;
3. Property owner concurrence, including signature, telephone number and address;
4. A property description, including parcel number, property street address and nearest cross street;
5. A county assessor’s map outlining the subject property;
6. Related or previous permit activity;
7. A description of the proposed shorelines redesignation;
8. A mitigation plan providing for significant enhancement of the first 100 feet adjacent to the shoreline and improved habitat for species declared as endangered or threatened under the Endangered Species Act, to the extent that the impacts of development can be determined at the time of the proposed shoreline redesignation; and
9. A discussion of how the proposed shoreline redesignation meets the criteria in KMC 16.75.160.
B. The hearing examiner shall make a recommendation to the city council based on the criteria for review in KMC 16.75.160. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.130 Redesignation initiated by motion.
A. A city council motion initiating a shoreline redesignation, as described in KMC 16.75.110(B), must be accompanied by the following information:
1. A description of the shoreline and a property description, including parcel numbers, property street addresses and nearest cross streets, for all properties that the shoreline runs through or is adjacent to;
2. A county assessor’s map outlining the subject property or properties; and
3. A description of the proposed shorelines redesignation.
B. If the motion proposes site-specific redesignation, as “site” is defined in KMC Title 18, the redesignation shall be referred to the hearing examiner for consideration following the procedures of KMC 16.75.120 for consideration of redesignation applications. Any other redesignation proposal initiated by motion shall be referred to the city manager for consideration as part of the process for amendment of comprehensive plan or development regulations as outlined in Chapter 19.20 KMC.
C. A motion initiating a site-specific redesignation must identify the resources and the work program required to provide the same level of review accorded to an applicant-generated shoreline redesignation. Before adoption of the motion, the city manager shall have the opportunity to provide an analysis of the motion’s fiscal impact. If the city manager determines that additional funds are necessary to complete the work program, the city manager may transmit an ordinance requesting the appropriation of supplemental funds. The city council may consider the supplemental appropriation ordinance concurrently with the proposed motion referring the shorelines redesignation proposal to the hearing examiner.
D. The departmental report and recommendation regarding an application for a site-specific redesignation initiated by city council motion shall be forwarded to the hearing examiner for consideration.
E. A site-specific redesignation initiated by motion shall follow the procedures in Chapters 19.25 and 19.30 KMC for shorelines redesignations with regard to the information to be provided and the notice and hearing processes, and shall meet the submittal requirements of KMC 16.75.120. The hearing examiner shall make a recommendation to the city council based on the criteria for review in KMC 16.75.160. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.140 Frequency of consideration of shoreline redesignations.
A shorelines redesignation may not be initiated unless at least three years have elapsed since the city council’s prior consideration of the current designation for the property. The city manager or the city council may waive this time limit if the proponent establishes that there exists either an obvious technical error or a change in circumstances justifying the need for earlier consideration of the shorelines redesignation. [Ord. 20-0506 § 3 (Exh. 1).; Ord. 12-0334 § 3 (Exh. 1)]
16.75.150 Shoreline redesignation and site-specific land use map amendment or zone reclassification.
A site-specific shorelines redesignation may be accompanied by a related proposal for a site-specific land use map amendment or zone reclassification, or both, in which case City review of the two applications must be consolidated to the extent practical, consistent with this title and Chapter 19.25 KMC. The city council’s consideration of a subarea or comprehensive plan shorelines redesignation is a legislative decision that must be determined before and separate from the city council’s final consideration of a zone reclassification or site-specific shorelines redesignation, which is a quasi-judicial decision. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]
16.75.160 Criteria for hearing examiner review.
A shorelines redesignation referred to the hearing examiner for a public hearing shall be reviewed based upon the requirements of comprehensive plan policies and City shorelines management goals and objectives and the following additional standards:
A. The proposed change implements and supports the goals of the State Shoreline Management Act and City of Kenmore Shoreline Master Program requested;
B. The impacts of development allowed by the proposed change will not permanently impair any habitat critical to endangered or threatened species; and
C. The impacts of development allowed by the proposed change are adequately addressed in a mitigation plan providing significant enhancement of the first 100 feet adjacent to the stream and improved habitat for species declared as endangered or threatened under the Endangered Species Act, to the extent those impacts may be determinable at the time of the shorelines redesignation. A full mitigation plan shall accompany each application, as provided in KMC 16.75.120 and 16.75.130. [Ord. 20-0506 § 3 (Exh. 1); Ord. 12-0334 § 3 (Exh. 1).]