Chapter 22E.050
SHORELINE MANAGEMENT MASTER PROGRAM
Sections:
22E.050.020 Compliance required.
22E.050.050 Application – Form.
22E.050.070 Notice publication.
22E.050.090 Filing with Department of Ecology.
22E.050.100 Appeals – Shoreline Hearings Board.
22E.050.110 Commencement of construction – Time lapse.
22E.050.120 Time requirements of permit.
22E.050.160 Rescission – Hearing.
22E.050.170 Director’s authority.
22E.050.180 Revisions to permit.
22E.050.190 Nonconforming uses.
22E.050.200 Documentation of project review actions and changing conditions in shoreline areas.
22E.050.210 Amendments to shoreline master program.
22E.050.220 Violation – Penalty.
22E.050.010 Adoption.
The city council hereby adopts the 2020 Shoreline Master Plan as an element of, and amendment to, the Marysville Growth Management Comprehensive Plan, subject to the modifications set forth in the Department of Ecology’s required changes, which are attached to Ordinance No. 3146 as Exhibit B. A copy of the comprehensive plan amendment, entitled Marysville Shoreline Master Program, is attached to Ordinance No. 3146 as Exhibit C and is hereby incorporated by this reference. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.020 Compliance required.
No developments shall be undertaken on the shorelines of the city except those which are consistent with the policies of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, regulations, or master program. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.030 Permit required.
No substantial development shall be undertaken on the shorelines of the city without first obtaining a permit from the city. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.040 Permit – Fees.
All persons desiring such a permit shall make application by paying a fee as set out in Chapter 22G.030 MMC and filing an application with the community development department. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.050 Application – Form.
Applications for permits shall be made on forms prescribed by the community development department, and shall contain the name and address of the applicant, a description of the development, the location of the development, and any other relevant information deemed necessary by the community development department. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.060 Review process.
(1) The community development department will review the substantial development permit proposals for consistency with:
(a) The legislative policies stated in RCW 90.58.020, the Shoreline Management Act;
(b) The shoreline management master program of the city of Marysville.
(2) Conditional Use Permits. The purpose of the conditional use permit is to allow greater flexibility in administering the use regulations of the master program in a manner consistent with the policies of the SMA. Conditional use permits may also be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in the SMA. The criteria for granting conditional use permits is the following:
(a) The uses which are classified or set forth in the master program as conditional use permits may be authorized, provided the applicant can demonstrate all of the following:
(i) That the proposed use will be consistent with the policies of the SMA and the policies of the master program;
(ii) That the proposed use will not interfere with the normal public use of public shorelines;
(iii) That the proposed use of this site and design of the project will be compatible with other permitted activities in the area;
(iv) That the proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is to be located;
(v) That the public interest suffers no substantial detrimental effect.
(b) Other uses which are not classified or set forth in the master program may be authorized as conditional uses provided the applicant can demonstrate, in addition to the criteria set forth in subsection (2)(a) of this section, that extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of the master program.
(c) In the granting of all conditional use permits, consideration shall be given to the cumulative impact of additional requests or like actions in the area.
(3) Variances. The purpose of a variance is strictly limited to granting relief to specific bulk, dimensional, or performance standards set forth in the master program where there are extraordinary or unique circumstances relating to the properties such that the strict implementation of the master program would impose unnecessary hardships on the applicant or thwart the policies set forth in the SMA. The criteria for granting variances shall be consistent with WAC 173-27-170 and include the following:
(a) Variances should be granted in a circumstance where denial of the permit would result in a thwarting of the policy enumerated in the SMA. In all instances, extraordinary circumstances should be shown, and the public interest shall suffer no substantial detrimental effect.
(b) Variances for development that will be located landward of the ordinary high water mark may be authorized provided the applicant can demonstrate all of the following:
(i) That the strict application of the bulk, dimensional, or performance standards as set forth in the master program precludes or significantly interferes with a reasonable permitted use of the property;
(ii) That the hardship is specifically related to the property and is the result of unique conditions, such as irregular lot shape, size, or natural features, in the application of the master program and not, for example, from deed restrictions or the applicant’s own actions;
(iii) That the design of the project will be compatible with other permitted activities in the area and will not cause adverse effects to adjacent properties or the shoreline environment designation;
(iv) That the variance authorized does not constitute a grant of special privilege not enjoyed by other properties in the area, and will be the minimum necessary to grant relief;
(v) That the public interest will suffer no substantial detrimental effect.
(c) Variances for development that will be located waterward of the ordinary high water mark may be authorized provided the applicant can demonstrate all of the criteria specified in subsection (3)(b) of this section. The applicant must also demonstrate that the public rights of navigation and use of the shorelines will not be adversely affected by the granting of the variance, and that the strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes all reasonable use of the property.
(d) In granting of all variances, consideration shall be given to the cumulative impact of additional requests or like actions in the area. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.070 Notice publication.
Upon receipt of an application for a permit, the city shall cause notice of application to be published at least once a week for two consecutive weeks in a newspaper of general circulation within the city. The second notice shall be published not less than 30 days prior to action by the community development department. The city shall also cause notice of the application to be mailed to each property owner of record within 300 feet of the proposed development. The date of the mailing shall not be less than seven days in advance of the department action. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.080 Decision.
The following decision making process shall apply to all substantial development, conditional use and variance permits:
(1) Exemption. Certain developments are exempt from the requirement to obtain a substantial development permit. Such developments still may require a variance or conditional use permit, and all development within the shoreline is subject to the requirements of the SMP, regardless of whether a substantial development permit is required. Developments which are exempt from obtaining a substantial development permit are identified in WAC 173-27-040 or as subsequently amended. Application shall be made to the community development department for a shoreline exemption.
(2) Administrative Action. The community development director shall make a decision on applications for substantial development permits, recommendations on applications for conditional use and variance permits based upon:
(a) The shoreline master plan (SMP) for the city; and
(b) The policies and procedures of the Shoreline Management Act (SMA) and related sections of the Washington Administrative Code (WAC).
In the event the community development director determines the substantial development is consistent with the above criteria, the community development director shall so state in written findings, and such findings shall be filed with the Department of Ecology. In the event the community development director determines the substantial development is inconsistent with the above criteria the application shall be denied. The permit shall issue upon the terms and conditions hereinafter prescribed and as prescribed by the community development director.
(3) Hearing Examiner Action. The hearing examiner shall review an application for a shoreline variance and conditional use permit and make decisions as authorized by this chapter, and as consistent with the SMP; SMA (RCW 90.58.100(5) and WAC 173-27-160). The permit shall issue upon the terms and conditions hereinafter prescribed by the hearing examiner.
(4) Exceptions – Requirements to Obtain Shoreline Permits or Local Reviews. 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 pursuant to Chapter 70.105D RCW, or to the Department of Ecology when it conducts remedial action under Chapter 70.105D RCW.
(b) Boat Yard 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. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.090 Filing with Department of Ecology.
After all local permit administrative appeals or reconsideration periods are complete and the permit documents are amended to incorporate any resulting changes, the city will mail or digitally send the permit using return receipt for documentation of date of receipt to the Department of Ecology 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.
(a) The permit and documentation of the final local decision will be mailed or digitally transferred together with the complete permit application; a findings and conclusions letter; a permit data form (cover sheet); and applicable SEPA documents.
(b) Consistent with RCW 90.58.140(6), the state’s Shorelines Hearings Board 21-day appeal period starts with the filing date, which is defined below:
(i) For projects that only require a Substantial Development Permit (SDP): the date that Ecology receives the city decision.
(ii) For a conditional use permit (CUP) or variance (VAR): the date that Ecology’s decision on the CUP or variance is transmitted to the applicant and the city. For SDPs simultaneously mailed with a CUP or VAR to Ecology: the date that Ecology’s decision on the CUP or VAR is transmitted to the applicant and the city. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.100 Appeals – Shoreline Hearings Board.
Any decision made by the community development director on a substantial development permit, or by the hearing examiner on a conditional use or variance permit shall be final unless an appeal is made. Persons aggrieved by the grant, denial, recission or modification of a permit may file a request for review to the Shoreline Hearings Board in accordance with the review process established by RCW 90.58.180 or as subsequently amended, and with the regulations of the Shoreline Hearings Board contained in Chapter 461-08 WAC or subsequently amended. The request for review must be filed with the hearings board within 21 days of the date of filing. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.110 Commencement of construction – Time lapse.
No one who is issued a permit hereunder shall be authorized to commence construction until 21 days have elapsed from the date that the permit is filed with the Washington State Department of Ecology, or until all review proceedings are terminated if such proceedings were initiated within said 21-day period, per WAC 173-27-190. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.120 Time requirements of permit.
The following time requirements shall apply to all substantial development, conditional use and variance permits:
(1) Construction or substantial progress toward construction of a project for which a permit has been granted must be undertaken within two years after the approval of the permit.
Substantial progress toward construction shall include, but not be limited to, the letting of bids, making of contracts, and purchase of materials involved in development, but shall not include development or uses which are inconsistent with the Shoreline Management Act or the city’s master program. In determining the running of the two-year period hereof, there shall not be included the time during which a development was not actually pursued by construction and the pendency of litigation reasonably related thereto made it reasonable not to so pursue; provided, that the community development director may, at his/her discretion, extend the two-year time period for a reasonable time based on factors, including the inability to expeditiously obtain other governmental permits which are required prior to the commencement of construction.
(2) If a project for which a permit has been granted has not been completed within five years after the approval of the permit by the city, the community development director shall review the permit and, upon a showing of good cause, do either of the following:
(a) Extend the permit for one year; or
(b) Terminate the permit.
Provided, that the running of the five-year period shall not include the time during which a development was not actually pursued by construction and the pendency of litigation reasonably related thereto made it reasonable not to so pursue; provided further, that nothing herein shall preclude the city from issuing permits with a fixed termination date less than five years. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.130 Scope of chapter.
Nothing in this chapter shall authorize the issuance of a permit upon conditions or terms which are specifically contrary to the laws of the state of Washington. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.140 Burden of proof.
All applicants for permits shall have the burden of proving that a proposed development is consistent with the criteria which must be met before the permit is issued. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.150 Permit rescinded.
Any permit issued hereunder may be rescinded by the hearing examiner upon a finding that a permittee has not complied with the conditions of a permit, subject however to a hearing as hereinafter provided. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.160 Rescission – Hearing.
Before such permit is rescinded by the hearing examiner, the community development director shall set a date for a public hearing to determine whether the permittee has not complied with the conditions of the permit. This hearing will be held upon notice to the permittee by mailing such to permittee’s address as shown on the application, by posting one notice at the development, and by notice in a newspaper of general circulation within the city at least 10 days prior to the hearing. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.170 Director’s authority.
The community development director shall have the authority to immediately stop any work under a permit which the community development director believes, in good faith, is not in compliance with the permit and is likely to cause immediate and irreparable harm. Upon such a stop order being issued, the permittee shall immediately cease and desist such portion of the development which is ordered stopped by the community development director, but may continue working on the other portions of the development. As soon as it is practical thereafter, a hearing will be held before the hearing examiner of the city to determine whether the conditions of the permit were being violated, and if so, whether to cancel the permit or determine what other action should be taken. Notice of hearing shall be in the form and manner prescribed hereinabove as to a hearing on cancellation of a permit. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.180 Revisions to permit.
When an applicant seeks to revise a substantial development, conditional use or variance permit, the city community development department shall request from the applicant detailed plans and text describing the proposed changes in the permit. If the community development director determines that the proposed changes are within the scope and intent of the original permit, the revision shall be automatically approved. “Within the scope and intent of the original permit” means the following:
(1) No additional over-water construction will be involved;
(2) Lot coverage and height may be increased a maximum of 10 percent from provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit;
(3) Landscaping may be added to a project without necessitating an application for a new permit;
(4) The use authorized pursuant to the original permit is not changed;
(5) No additional significant adverse environmental impact will be caused by the project revision.
If the revision, or the sum of the revision and any previously approved revisions, will violate the criteria specified above, the city shall require the applicant to apply for a new substantial development, conditional use or variance permit, as appropriate, in the manner provided for herein. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.190 Nonconforming uses.
The provisions of Chapter 22C.100 MMC, specifically MMC 22C.100.010 through 22C.100.050, relating to nonconforming uses are hereby incorporated into the shoreline master plan as though fully set forth therein. All references to provisions contained in the Marysville unified development code shall be construed as referring to the shoreline master plan (including shoreline permits), and all references to zoning districts and classifications shall be construed as referring to environments established by the shoreline master plan. MMC 22C.110.010 through 22C.110.050 dealing with temporary use shall not be considered part of the shoreline master plan. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.200 Documentation of project review actions and changing conditions in shoreline areas.
The city will keep on file documentation of all projects, including applicant submissions and records of decisions, relating to shoreline management provisions in the shoreline master program. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.210 Amendments to shoreline master program.
If the city or Ecology determines it necessary, the city will review shoreline conditions and update this SMP within seven years of its adoption. (Ord. 3146 § 4 (Exh. D), 2020).
22E.050.220 Violation – Penalty.
In addition to incurring civil liability, any person found to have willfully engaged in activities on the shorelines within the city in violation of the provisions of this chapter or any of the master programs, rules or regulations adopted pursuant thereto shall be guilty of a misdemeanor and shall be subject to MMC 4.02.040, Penalties and enforcement. (Ord. 3146 § 4 (Exh. D), 2020).