Chapter 17B.64
CONDITIONAL USES AND VARIANCES
Sections:
17B.64.010 Permitted conditional uses and variances.
17B.64.030 Review criteria for conditional use permits.
17B.64.040 Review criteria for variances.
17B.64.050 Review of conditional use and variance permits by the Department of Ecology.
17B.64.070 Application procedures.
17B.64.010 Permitted conditional uses and variances.
Conditional use permits and variances shall be granted or denied by the city after due consideration has been given to the performance standards set forth in this title and after the applicant has shown that the conditional use or variance would not impinge on the health, safety, welfare, and rights of the residents of the city. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.020 Minimum standards.
The criteria established in this chapter for conditional use and variance permits shall constitute the minimum criteria for review of these permits by the city. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.030 Review criteria for conditional use permits.
The purpose of a conditional use permit is to provide a system within the master program which allows flexibility in the application of use regulations in a manner consistent with the policies of RCW 90.58.020. In authorizing a conditional use, special conditions may be attached to the permit by the city or the Department of Ecology to prevent undesirable effects of the proposed use and/or to ensure consistency of the project with the Act and the local master program.
A. WAC 173-27-160 allows uses which are classified or set forth as conditional uses; provided, that the applicant demonstrates compliance with all of the following criteria or as updated by state law:
1. That the proposed use is consistent with the policies of RCW 90.58.020 and the city’s shoreline master program;
2. That the proposed use will not interfere with the normal public use of public shorelines;
3. That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program;
4. That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and
5. That the public interest suffers no substantial detrimental effect.
B. In the granting of all conditional use permits, consideration shall be given to the cumulative 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 total of the conditional uses shall also remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment.
C. Other uses which are not classified or set forth in the city’s shoreline master program may be authorized as conditional uses, provided: (1) the applicant can demonstrate consistency with the requirements of this title and the requirements for conditional uses, and (2) the use is consistent with the goals and policies of the city’s shoreline master program. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.040 Review criteria for variances.
A. The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional or performance standards set forth in this title where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of the shoreline regulations will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020. All variance applications shall be reviewed against the requirements of this section or as updated in WAC 173-27-170.
B. Variance permits should be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances the applicant must demonstrate extraordinary circumstances and show that the public interest would not suffer any substantial detrimental effect.
C. Variance permits for development and/or uses that will be located landward of the ordinary high water mark (OHWM), as defined in RCW 90.58.030(2)(b), and/or landward of any wetland as defined in RCW 90.58.030(2)(h), may be authorized, provided the applicant can demonstrate all of the following:
1. That the strict application of the bulk, dimensional or performance standards set forth in this title precludes, or significantly interferes with, reasonable use of the property;
2. 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 and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;
3. That the design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to adjacent properties or to the shoreline environment;
4. That the variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;
5. That the variance requested is the minimum necessary to afford relief;
6. The variance does not conflict with the general purpose and intent of the Mukilteo shoreline master program; and
7. That the public interest will suffer no substantial detrimental effect.
D. Variance permits for development and/or uses that will be located waterward of the ordinary high water mark (OHWM), as defined in RCW 90.58.030(2)(b), or within any wetland as defined in RCW 90.58.030(2)(h), may be authorized, provided the applicant can demonstrate all of the following:
1. 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;
2. That the proposal is consistent with the criteria established under subsection C of this section; and
3. That the public rights of navigation and use of the shorelines will not be adversely affected.
E. In addition to the above criteria in subsections C and D of this section, applicants for variances from the public access requirements of this title shall demonstrate that one or more of the following conditions exist which cannot otherwise be mitigated:
1. The provision will result in an unacceptable hazard to the public.
2. The inherent security requirements of the development preclude access consideration.
3. The cost of the access amenity is unreasonably disproportionate to the total cost of the development.
4. The provision of access will result in unacceptable environmental harm.
5. A significant and unavoidable conflict with adjacent uses will occur.
F. In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted to other developments and/or uses in the area where similar circumstances exist the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall not cause substantial adverse effects to the shoreline environment. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.050 Review of conditional use and variance permits by the Department of Ecology.
A. After the city’s approval of a conditional use or variance permit, the city shall submit the permit to the Department of Ecology for approval, approval with conditions, or denial. Ecology shall render and transmit to the city and the applicant its final decision approving, approving with conditions, or disapproving the permit within thirty days of the date of submittal by the city.
B. The Department of Ecology shall review the complete file submitted by the city on conditional use and variance permits and any other information submitted or available that is relevant to the application. The Department of Ecology shall base its determination to approve, approve with conditions or deny a conditional use permit or variance on consistency with the policy and provisions of the Shoreline Management Act and, except as provided in WAC 173-27-210, the criteria in WAC 173-27-160 and 173-27-170.
C. The city shall provide timely notification of Ecology’s final decision to those interested persons having requested notification from the city. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.060 Prohibited uses.
Some developments and uses by their nature are not consistent with the definition, policies, or intent of the downtown waterfront or shoreline environmental designations. For the purpose of this title, conditional uses or variances may not be granted for uses that are prohibited by this title. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)
17B.64.070 Application procedures.
Applications for conditional use permits or variances shall be submitted and processed in accordance with Chapter 17B.13, Procedures. (Ord. 1295 § 10 (Exh. 1B) (part), 2011)