Chapter 18.80 APPLICATION, NOTICE, REVIEW, AND APPEAL REQUIREMENTS

A. Purpose. “Project permits” are defined in SJCC 18.20.160. Such permits include, but are not limited to, subdivisions, conditional use permits, variances, shoreline permits, provisional use permits, and temporary use permits. Concurrency findings, determinations of completeness, and other such administrative approvals are reviewed as part of the underlying project permit and are not project permits. SEPA threshold determinations are not project permits. Building, driveway, and other construction-type development permits and approvals are not project permits (RCW 36.70B.020(4) and 36.70B.140). (See “development permit” in SJCC 18.20.040.) Procedures for building and development permits that do not trigger a requirement for a project permit are found in SJCC 18.80.070 (procedures for “Yes” uses). The procedures in this subsection are enacted to provide consistent evaluation of project permit applications and to protect nearby properties from the possible negative impacts of such requests by:

1. Providing clear criteria on which to base a decision;

2. Recognizing the effects of unique circumstances upon the development potential of a property;

3. Avoiding the granting of special privileges;

4. Providing criteria which emphasize compatibility with legally existing land uses in the same land use designation;

5. Requiring that the design, scope, and intensity of development are in keeping with the physical aspects of a site and adopted land use policies for the area;

6. Providing criteria which emphasize the rural and small-village character of the County;

7. Combining the environmental review process with the procedures for review of project permit applications; and

8. Providing no more than one open-record hearing, except as provided in Chapters 36.70B and 43.21C RCW.

B. Director’s Responsibilities.

1. Responsibilities. The director shall provide for the review of all project permit applications, conducting such field inspections as necessary, to determine whether or not the proposal meets the requirements specified in this code.

a. If, upon application for a development permit, the director determines that a project permit is required, the applicant shall be so informed immediately. Upon receipt of an application for a project permit, the director shall conduct a review as specified in this section.

b. All applications for project permits shall be reviewed by the director for compliance with this code regardless of whether a development permit is required. No development permit which involves a change or alteration of existing uses shall be issued until any required project permit has been issued according to the provisions in this chapter.

2. Upon receipt of a project permit application, the director shall review the proposal, conduct or require such field inspections as necessary to determine whether or not the proposal complies with the purpose and intent of this section and this code. The director may require additional information from the applicant sufficient to make a determination. (Ord. 26-2012 § 22; Ord. 11-2011 § 6; Ord. 15-2002 § 1; Ord. 2-1998 Exh. B § 8.1)

18.80.020 Project permit applications – Procedures.

A. Nonbinding Preapplication Conferences and Site Inspections. Preapplication conferences and site inspections are optional, but strongly encouraged, and will be conducted on a time-available basis. Any fee assessed for such a preapplication conference and site inspection shall be refunded upon submission of a permit application.

1. Preapplication conferences and site inspections are recommended to provide a prospective applicant and the County the opportunity to discuss the property owner’s plans; review available critical area maps; examine unique site characteristics; discuss stormwater management and low impact development options; determine if and how County regulations may apply; and to encourage the applicant to consider the effect of County regulations in designing the project.

2. Recognizing that project plans are typically incomplete at the preapplication stage, that more information is typically obtained prior to filing a project permit application, and that new regulations may be enacted prior to submission of a project permit application, preliminary discussions at a preapplication meeting shall not be binding on either the County or the potential applicant.

B. Determination of Proper Type of Project Permit.

1. Determination by Director. The director shall determine the proper type of project permit. Table 8.1 summarizes the steps in the review process for each type of project permit.

2. Consolidated Permit Processing. For a proposal that involves two or more shoreline permits and/or other project permits, such applications shall be consolidated under the “highest” procedure (i.e., the rightmost applicable column in Table 8.1) required for such permits or processed individually under each of the procedures identified by this code. The applicant may request the consolidation of hearings with other local, state, regional, federal, or other agencies in accordance with RCW 36.70B.090 and 36.70B.110. (See also SJCC 18.80.110.4, shoreline permits consolidated permit processing, and SJCC 18.80.140.)

C. Project Permit Application – Forms. Applications for project permits shall be submitted on forms approved by the director. An application must (1) consist of all materials required by the applicable development regulations; (2) be accompanied by plans and appropriate narrative and descriptive information sufficiently detailed to clearly define the proposed project and demonstrate compliance with applicable provisions of this code; and (3) except for project permit applications for temporary uses, include the following:

1. A completed project permit application form;

2. If the applicant is not the owner of the subject property, a notarized statement by the owner(s) that (a) the application has been submitted with the consent of all owners of the subject property, and (b) identification of the owner’s authorized agent or representative;

3. A legal description of the site and any other property description required by the applicable development regulations;

4. The applicable fee;

5. Evidence of available and adequate water supply as required by SJCC Title 8; see also SJCC 18.60.020;

6. Evidence of sewer availability or septic approval or suitability as required by SJCC Title 8;

7. A plot plan to scale at no smaller than one inch equals 40 feet for a plot larger than one acre, and no smaller than one inch equals 20 feet for a plot one acre or smaller;

8. Graphic depiction of the following:

a. Compass direction and graphic scale;

b. Corner grades and, if required by the director, existing contours of topography at five-foot contour intervals;

c. Proposed developments or use areas;

d. Existing structures and significant features on the subject property and on adjacent properties;

e. Property lines, adjoining streets, and immediately adjoining properties and their ownerships;

f. Location and dimensions of existing and proposed improvements on public rights-of-way, such as roads, sidewalks, and curbs;

g. Existing and proposed grades and volume and deposition of excavated material;

h. Natural drainage direction and storm drainage facilities and improvements;

i. Locations of all existing and proposed utility connections;

j. Parking spaces and driveways;

k. Proposed landscaping;

l. Wetlands and other critical areas; and

m. All easements (recorded or unrecorded) must be shown. If recorded, the recording number must be shown;

9. The applicant shall provide a list showing the name and addresses of the owners of property within 300 feet of the boundaries of the property subject to the project permit application. For purposes of this chapter, the owners of property within 300 feet of the boundaries of the subject property are those whose names are shown on the tax assessment rolls on the date the project permit application is submitted;

10. Photographs of the site depicting existing and proposed development areas and areas where vegetation is proposed to be removed;

11. Critical Areas (CAs).

a. All project permit applications shall include sufficient information about the site and the proposed project to demonstrate consistency with SJCC 18.35.020 through 18.35.140.

b. Critical Area Review Process. All plans for development of commercial, industrial, institutional and public facilities must undergo review for compliance with groundwater protection requirements for critical aquifer recharge areas (SJCC 18.35.080). The department shall review the application, available maps, and information and, if requested by the property owner, shall conduct a site inspection prior to determining whether the proposed project may affect or be affected by a wetland, fish and wildlife habitat conservation area, frequently flooded area, or geologically hazardous area. If the area proposed for development or vegetation removal is not in a frequently flooded area; is more than 200 feet from a geologically hazardous area; is more than 300 feet from a wetland; is more than 200 feet from a fish and wildlife habitat conservation area; is more than 1,000 feet from any golden eagle nests; and is more than one-quarter mile from any peregrine falcon or great blue heron nests, the department shall rule that the critical area review is complete with regard to those types of critical areas. Otherwise, the department will notify the applicant and provide them with a list of any report(s) or application materials required by SJCC 18.35.020 through 18.35.140. If required, these reports and materials must be received before an application will be deemed complete.

c. Critical Area Reports.

i. Detailed requirements for critical area reports are identified in SJCC 18.35.020 through 18.35.140.

ii. If the director finds that a report does not accurately reflect site conditions, is inadequate to determine compliance, or does not meet the requirements of this title, the director shall contact the qualified professional who prepared the report to discuss the issues and, if necessary, shall have the report reviewed by a third party qualified professional;

12. Frequently Flooded Areas. Project permit applications shall include the location of any frequently flooded areas or special flood hazard area on the subject property, and an elevation certificate if required by the director. No use or development shall be undertaken or approved within any area of special flood hazard except in compliance with the provisions of SJCC Titles 15 and 18. Elevation certificates shall include certification by a land surveyor, licensed civil engineer or architect authorized by law to certify elevation information. Elevation certificate forms shall be provided by the director;

13. Additional Application Information for Divisions of Land and Boundary Line Modifications. The application for a division of land shall meet the requirements of this subsection and the requirements in Chapter 18.70 SJCC;

14. Additional Application Information for Binding Site Plans. The application for a binding site plan shall meet the requirements of this subsection, SJCC 18.70.090, and the requirements in SJCC 18.80.170;

15. Additional Application Information for Planned Unit Developments. A planned unit development application is part of the application for a subdivision or a binding site plan; additional information requirements are summarized in SJCC 18.80.160. The application for a planned unit development shall meet the requirements of this subsection and the requirements in SJCC 18.80.160;

16. Additional Application Information for Rural Residential Cluster Development. The application for a rural residential cluster development shall meet the requirements of this subsection, SJCC 18.60.230 and 18.80.180, and shall also include the following:

a. The floor plan and elevations for each proposed residential structure, at a scale of not less than one-quarter inch equals one foot;

b. A list, diagram and samples showing exterior materials and finishes for all structures, fences, and other constructed features of the project;

c. The plot plan prepared under this subsection shall also show the location and species of any existing trees greater than six inches in diameter at breast height on the property, except in areas proposed for open space preservation or forest resource management;

d. A list showing the floor area and use of each structure to be constructed on the site, and the total floor area of structures, and the area of the site devoted to residences, residential yards, circulation spaces, other uses, and open space; and

e. A narrative description indicating how the project responds to the requirements of SJCC 18.60.230, including the minimum standards of SJCC 18.60.230(C), the separation requirements of SJCC 18.60.230(F), and the design guidelines of SJCC 18.60.230(G);

17. Additional Information. The director may require additional information necessary for review and evaluation or demonstration of project consistency with this code;

18. Director’s Waiver. The director may waive specific submittal requirements determined to be unnecessary for review of a project permit application required by this code; and

19. Temporary Use Permit Applications. All project permit applications for a temporary use shall be submitted to the director in writing and contain sufficient information for the director to make a decision (see SJCC 18.80.060). The director shall determine what information is necessary for review of such applications.

D. Project Permit Applications – Determination of Completeness, Modification, Referral and Review.

1. Determination of Completeness. Within 28 days after receiving a project permit application, the director shall determine if a project permit application is complete and notify the applicant in writing that either:

a. The application is complete; or

b. The application is incomplete. If such application is incomplete, the director shall specify what information is necessary to make the application complete.

2. Identification of Other Agencies with Jurisdiction. To the extent known by the County, other agencies with jurisdiction over the project permit application shall be identified.

3. Additional Information.

a. A project permit application is complete for purposes of this chapter when it meets the submittal requirements in this section and any submittal requirements contained in applicable development regulations.

b. If the submittal requirements have not been met, the director may determine that the application is complete and, at the same time, require that additional information or studies be provided within a time specified.

c. Nothing in this section precludes the director from requesting additional information or studies at any time if new information is determined to be necessary due to the complexity of the plans, apparent errors, or where there are substantial changes in the proposal.

d. If the applicant fails to submit the requested information or studies within the time specified, or within a longer period if agreed to by the director, the application shall lapse and the applicant shall forfeit the application fee.

4. Incomplete Applications.

a. If the director notifies the applicant that an application is incomplete, the applicant shall have 90 days to submit the necessary information to the director. Within 14 days after an applicant has submitted the additional information, the director shall again make the determination described in subsection (D)(1) of this section, and notify the applicant. If the applicant submits the required information to the director within the 90-day period and the director determines that the application is now complete, the project permit application will be considered complete as of the date the project permit application was originally submitted; however, the 120-day processing period in SJCC 18.80.130 will be tolled during the 90-day resubmittal period.

b. If the applicant fails to submit additional information, or does not within such 90-day period request additional time to submit the required information, the application shall lapse and the applicant shall forfeit the application fee.

5. Director’s Failure to Provide Determination of Completeness. A project permit application shall be deemed complete under this section if the director does not timely notify the applicant that the application is incomplete.

6. Modifications to Applications. An applicant-initiated modification to an application which is not in response to technical review, a change requiring a new public notice, a change of land use(s), or a mitigation measure under SEPA may require a new application. A change requiring a new public notice establishes a new vesting date for that application.

7. Referral and Review of Project Permit Applications. Within 14 days of determining that a project permit application is complete, the director shall transmit a copy of the application, or appropriate parts of the application, to each affected agency and County department for review and comment, including those responsible for determining compliance with state and federal requirements. Applications for shoreline permits shall also be circulated to the director of the University of Washington Friday Harbor Laboratories for comment as a reviewing agency. The affected agencies and County departments shall have 20 days to comment. The referral agency or County department is presumed to have no comments if comments are not received within the specified time period. The director shall grant an extension of time where unusual circumstances are present.

Table 8.1. Summary of Project Permit Notice, Hearing, Decision and Appeals Processes (1)
Project Permit Application	Boundary Line Modification; Simple Land Division	Provisional Use; Short Subdivisions; BSP to 4 Lots; Temporary Use Permits (Level II), Administrative Substantial Development Permit	Conditional Use and/or Variance	Shoreline Permits (Substantial Development, Conditional Use or Variance)	Subdivisions; BSP for More than 4 Lots
	Administrative		Quasi-Judicial
Public Notice of Application	no	yes	yes	yes	yes
Notice of Public Hearing	no	no	yes	yes	yes
Public Comment Period	no (yes if BLM and SLD and SEPA required)	yes	yes	yes	yes
Open-Record Predecision Hearing	no	no	yes	yes	yes
Decisionmaker	Director	Director	Hearing Examiner	Hearing Examiner	Hearing Examiner
Open-Record Appeal Hearing (Hearing Examiner)	yes	yes	no	no	no
Appeal Period (days) for Appeal to the Hearing Examiner	21	21	N/A	N/A	N/A

Abbreviations:

BSP:

Binding Site Plan

(Ord. 8-2020 § 13; Ord. 2-2014 § 7; Ord. 26-2012 § 23; Ord. 11-2011 § 7; Ord. 26-2002 § 6; Ord. 15-2002 § 2; Ord. 4-2001 § 5; Ord. 14-2000 § 7(AAA); Ord. 11-2000 § 7; Ord. 2-1998 Exh. B § 8.2)

18.80.030 Notice of project permit applications, public comment, and notice of hearing.

A. Notice of Project Permit Applications.

1. Applicability.

a. Notice of application is required for all project permit applications.

b. Public notice of the issuance of a threshold determination for projects subject to SEPA review may be combined with the notice of application or given separately, as provided in SJCC 18.80.050(I).

2. Mailing, Publication, and Posting Requirements. Notice of application shall be prepared in accordance with this section and provided within 14 days after the application is determined to be complete; and, if an open-record predecision hearing is required, at least 15 days prior to the open-record hearing, as follows:

a. The administrator shall publish notice of application in the official County newspaper at least one time;

b. The applicant shall mail a notice of application, as provided by the administrator, to all owners of property within 300 feet of the boundaries of the subject property, using the names and addresses of those individuals as shown on the tax assessment rolls on the date the project permit application is submitted to the permit center. Notices of application shall be deemed to have been provided on the date the notices are deposited in the mail. The applicant shall provide the administrator with a declaration of mailing and list of those individuals to whom the notice of application was mailed. (See SJCC 18.80.020(C)(9).) All notices which are returned to the applicant must be submitted to the administrator for inclusion in the file.

Failure to mail such notice as provided in this section shall not invalidate such proceedings as to a property owner who appears at a hearing or receives actual notice.

c. Posting. The applicant shall post a notice of application on the property on a board purchased from the permit center. Posted notice shall be:

i. At the midpoint of the site road frontage or as otherwise directed by the administrator for maximum visibility;

ii. Five feet inside the street property line, except when the board is structurally attached to an existing building; provided, that no notice board shall be placed more than five feet from the margin line of the road or right-of-way without approval of the administrator;

iii. Between five and eight feet above grade at the top of the notice board;

iv. Completely visible to pedestrians;

v. Maintained in good condition by the applicant during the notice period;

vi. In place at least 30 days prior to the date of hearing; and

vii. Removed within 15 days after the notice of decision is received by the applicant.

If the property is served by a private road, an additional notice board shall be located at the nearest intersection of the private road with a public road. Where a notice board cannot be placed as indicated or would not provide effective notice, the administrator shall determine a suitable location for posting.

d. The applicant shall submit an affidavit of posting and a photograph showing the location(s) of posting to the administrator prior to the publication of the notice of application.

3. Contents. The notice of application shall include the following information:

a. The date the project permit application was complete, and the date of the notice of application;

b. The name of the applicant or the applicant’s authorized agent or representative;

c. A description of the subject property reasonably sufficient to inform the public of its location, which may include a vicinity location (map) or written description (rural route box or subdivision lot and block alone are not sufficient);

d. The date, time, place, and type of public hearing, if applicable and scheduled as of the date of notice of application. If notice of public hearing is not so combined with the notice of application the requirements of subsection (C) of this section shall also be met;

e. A description of the proposal, a list of the project permits included in the application and, if applicable, a list of any studies requested;

f. The identification of state, federal, or other required permits not included in the application, to the extent known;

g. The identification of existing environmental documents that evaluate the proposal, and the location where the application and any studies can be reviewed;

h. The public comment period, together with statements of the right of any person to:

i. Comment on the application;

ii. Comment on the County’s SEPA threshold determination;

iii. Receive notice of and provide testimony in any hearings;

iv. Request a copy of the decision once made; and

v. Appeal;

i. A statement of the preliminary determination (if one has been made at the time of notice of application) of those development regulations that will be used for project mitigation (SJCC 18.80.050(G)(1)) and consistency with the Comprehensive Plan and this code;

j. The threshold determination under SEPA, if applicable and if a determination has been made at the date of notice of the application;

k. When and how written comments may be submitted;

l. Where and when a copy of the application, and supporting documents submitted by the applicant are available for inspection;

m. A statement that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and that copies will be available; and

n. Any other information determined appropriate by the administrator.

B. Public Comment on the Notice of Application.

1. The comment period shall be 21 days following the date of notice of application. Comments may be mailed, personally delivered, or sent by facsimile to the permit center.

2. The public comment period shall be 30 days for shoreline substantial development permit applications, except that the public comment period shall be 20 days for limited utility extensions or construction of a bulkhead or other measures to protect a single-family residence and its appurtenant structures from shoreline erosion. (RCW 90.58.140(4) and (11)(a).)

3. Public comments will be received during regular business hours by the administrator at any time prior to the closing of the record of an open-record predecision hearing, or, if there is no open-record predecision hearing, prior to the decision on the project permit application.

C. Notice of Public Hearing. If the notice of application does not specify a hearing date, a separate notice of public hearing shall be prepared by the administrator.

1. The administrator shall publish such notice of public hearing in the official County newspaper at least one time, not less than 10 days prior to the hearing. This notice shall include the date of public hearing and the information described in this section.

2. The applicant shall mail the notice of public hearing to all of the persons entitled to notice, as described in this section, and to any person who has submitted written comments on the application to the administrator. The applicant shall provide the administrator with a declaration of mailing and a list of the names and addresses of those individuals to whom the notice of public hearing was mailed. All notices which are returned to the applicant must be submitted to the administrator for inclusion in the file.

3. Notice of public hearing shall be deemed to have been provided on the date the notice is deposited in the mail.

4. All costs associated with meeting the requirements of this subsection shall be borne by the applicant. (Ord. 15-2002 § 3; Ord. 2-1998 Exh. B § 8.3)

18.80.040 Open-record predecision hearings.

A. Responsibility of Administrator for Hearings. The administrator shall:

1. Where applicable, schedule open-record predecision hearings on project permit applications;

2. Prepare the staff report on the project permit application, which shall be a single report stating intermediate steps taken in processing the project permit application as of the date of the report, and recommendations, if any. The staff report shall state any mitigation required or proposed under the development regulations or under the County’s SEPA authority. If a threshold determination other than a determination of significance has not been issued previously by the County, the report shall include or append this determination; and

3. Prepare the notice of decision, if required, and mail a copy of the notice of decision to those required by this code (SJCC 18.80.130) to receive such decision.

B. Burden and Nature of Proof. The burden of proof is on the project permit applicant. The project permit application must be supported by evidence that it is consistent with the applicable state law, County development regulations, the Comprehensive Plan, and the applicant meets his burden of proving that any significant adverse environmental impacts have been adequately analyzed and addressed. (Ord. 15-2002 § 4; Ord. 2-1998 Exh. B § 8.4)

18.80.050 SEPA implementation rules.

A. Authority.

1. This section contains County SEPA procedures and policies implementing the State Environmental Policy Act (SEPA), Chapter 43.21C RCW. San Juan County adopts this section under RCW 43.21C.120 and WAC 197-11-904.

2. SEPA Rules – Adoption by Reference. The County hereby adopts by reference the SEPA rules, Chapter 197-11 WAC. The SEPA rules must be used in conjunction with this section.

B. Purpose. To adopt regulations to implement the State Environmental Policy Act, consistent with the SEPA rules. This is accomplished by ensuring that:

1. Environmental values are considered in making land use and agency decisions, and reasonable alternatives and conditions are identified and implemented to mitigate (as provided in this section) the adverse impacts of proposed actions on the environment;

2. Adequate and timely environmental information is gathered and provided to decisionmakers, and procedural delay and duplication is avoided; and

3. Opportunity for public involvement is included in the decisionmaking process.

C. Responsible Official/Decisionmaking Authority.

1. The director is the responsible official for proposals for which the County is the lead agency.

2. For those proposals for which the County is the lead agency, the responsible official is vested with authority to and shall make the threshold determination, determine an exemption (if any), supervise scoping and preparation of any required EIS, administer the state guidelines and this section, and perform any other functions assigned to the “lead agency” or “responsible official” by the SEPA rules.

3. The responsible official shall be responsible for the written comments of the County in response to a consultation request:

a. Prior to issuance of a threshold determination;

b. For participation in scoping; or

c. For review of a DEIS.

4. The County community development and planning department shall maintain all documents required by SEPA rules and make them available in accordance with Chapter 42.17 RCW.

D. Lead Agency Determination and Responsibilities.

1. The County department receiving application for or initiating a proposal that includes a nonexempt action shall determine lead agency for the proposal under WAC 197-11-050 and WAC 197-11-922 through 197-11-940 unless lead agency has been previously established.

2. When the County is lead agency, the responsible official shall supervise compliance with threshold determination requirements. If an EIS is required, that official shall supervise preparation of the EIS.

3. When the County is not lead agency, the County shall use and consider the DNS, MDNS, or final EIS of the lead agency in making decisions on the proposal. Unless required under WAC 197-11-600 no DNS or EIS in addition to that issued by the lead agency shall be prepared. The County may, however, conduct supplemental environmental review under WAC 197-11-600.

4. If the County receives a lead agency determination that appears inconsistent with criteria in WAC 197-11-922 through 197-11-940, it may object to the determination. Objection must be made to the agency that made the determination and must be resolved within 15 days of receipt of the determination, or the County must petition the Washington Department of Ecology for lead agency determination under WAC 197-11-946 within the 15-day period. The responsible official may initiate any such petition on behalf of the County.

5. Any County department making lead agency determination for a private proposal shall require sufficient information to identify all other agencies with jurisdiction over the proposal.

E. Initiation of SEPA Review – Certain Actions Prohibited During SEPA Review Process.

1. Initiation of Review. The County’s SEPA process begins when a permit application is submitted to the County, or when the County proposes to take an official action as defined in WAC 197-11-704.

2. Initiation by Applicant at Conceptual Stage. If the only County action on a proposal is a decision on a building permit or other license that requires detailed project plans, the applicant may request in writing that the environmental review be conducted before detailed plans are submitted.

3. Certain Actions Prohibited During SEPA Review. See WAC 197-11-070, 197-11-340(2)(a) (DNS) and WAC 197-11-460(5) (FEIS).

F. Categorically Exempt Actions, and Use of Existing Documents and Analyses.

1. Categorically Exempt Actions. Actions categorically exempt under RCW 43.21C.110(1) (a) and WAC 197-11-800, as further modified by subsections (F)(2)(g) and (K) of this section, do not require environmental review or the preparation of an environmental impact statement, and may not be conditioned or denied under SEPA, except as provided in WAC 197-11-305 and subsection (F)(2) of this section.

2. Use of Exemptions.

a. Applicability of a categorical exemption will be determined by the responsible official. The determination by the responsible official that a proposal is exempt from SEPA is final. None of the procedural requirements of this section (except as provided in WAC 197-11-305 and this subsection (F)(2)) apply to an exempt proposal.

b. If a proposal includes exempt and nonexempt actions, the responsible official shall determine the lead agency pursuant to WAC 197-11-050.

c. If a proposal includes exempt and nonexempt actions, the County may authorize exempt actions prior to compliance with procedural requirements of this section, except as provided in subsections (D) through (G) of this section.

d. The County may not authorize the use of exemptions for:

i. Actions that are not exempt;

ii. Any action that would have an adverse environmental impact;

iii. A series of exempt actions that are physically or functionally related which together would result in a probable significant adverse environmental impact for the overall project; or

iv. Any action that would limit choice of alternatives (WAC 197-11-070, 197-11-305, 197-11-800).

e. The County may withhold approval of an exempt action that would lead to modification of the physical environment when such modification would serve no purpose if nonexempt action(s) were not approved.

f. The County may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved.

g. All of the categorical exemptions listed in WAC 197-11-908(1) do not apply to frequently flooded areas, geologically hazardous areas, wetlands, fish and wildlife habitat conservation areas, or to areas designated “conservancy” or “natural” in the shoreline master program or Comprehensive Plan. Categorical exemptions listed in WAC 197-11-800(1)(b) do not apply when undertaken wholly or partly on lands covered by water, whether or not such lands are mapped. Proposals in areas subject to this subsection shall require environmental review and a threshold determination, and may be conditioned or denied under this section (WAC 197-11-756, 197-11-800(1)(b), and 197-11-908).

3. During project review, the County shall not re-examine alternatives to or hear appeals on the items identified as SEPA-exempt as per subsection (F)(1) of this section, except for issues of interpretation of this code. Project review shall be used to identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, the payment of impact fees, or other measures to mitigate a proposal’s probable adverse environmental impacts.

4. Use of Existing Documents and Analyses. Procedures for the use, adoption, or incorporation of existing documents and analyses are provided in WAC 197-11-600, 197-11-610, 197-11-630, and 197-11-635.

5. Planned Actions.

a. The County may, as part of its planning processes, elect to perform or have performed for it in advance of any development proposal, the environmental review and analysis for certain actions and their probable impacts. These “planned actions” must be so designated by ordinance or resolution adopted by the County after the analysis of the actions and their impacts has been completed.

b. Planned actions must be located in an urban growth area, a master planned resort, or a fully contained community, and meet additional requirements of RCW 43.21C.031(2)(a).

c. The analysis must be sufficient to identify and analyze all probable significant impacts and most nonsignificant impacts of the actions, and to identify (and, optionally, provide) to a great extent the mitigation necessary; i.e., the significant impacts must be “adequately addressed” in an environmental impact statement.

d. As a result of the analysis in subsections (F)(5)(a) and (c) of this section, a development proposal being prepared under a planned action does not require a threshold determination or the preparation of an environmental impact statement, but is subject to a full environmental review of its impacts and full requirements for mitigation as identified and specified by the review for the planned action in subsection (F)(5)(c) of this section.

e. If the environmental review identifies additional impacts not addressed by the planned action, a checklist and threshold determination shall be required.

G. Analysis of Nonexempt Project and Nonproject Actions. The procedures and requirements in this section apply equally to project and nonproject actions.

1. Submittal of Environmental Checklist.

a. A completed environmental checklist shall be submitted with any application for a permit or approval not specifically exempted as per subsection (F)(1) of this section. However, a checklist is not required if the County and applicant agree that an EIS is required, if SEPA compliance has been completed, or if SEPA compliance has been initiated by another agency. The County shall use the checklist to determine lead agency and to make the threshold determination if the County is lead agency.

b. Applicants for private proposals shall complete the checklist, and the County shall provide assistance as appropriate. For County proposals, the department initiating the proposal shall complete the checklist.

2. Review of Project Impacts. The responsible official shall review the checklist, other information about a project, and the applicable regulations to review the environmental impacts of the project and make a threshold determination. In making this review the responsible official may determine:

a. All of the project’s specific adverse environmental impacts have been adequately identified and analyzed. If not, additional studies and analyses may be required; and

b. Some or all of the specific adverse environmental impacts have been adequately addressed and mitigated in this UDC and other development regulations in the San Juan County Code, the Comprehensive Plan, or in other applicable local, state, or federal laws and rules by:

i. Avoiding or otherwise mitigating the impacts; or

ii. The County has designated as acceptable certain levels of service, land use designations, development standards, or other land use planning required or allowed by the Growth Management Act.

Where specific adverse environmental impacts have not been adequately mitigated, the responsible official may condition the project with additional mitigation measures or deny the permit.

c. To determine if a specific adverse environmental impact has been addressed by an existing rule or law of another agency with jurisdiction, the County shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the County shall base or condition its project approval on compliance with that agency’s rules or laws.

d. If the County bases or conditions its SEPA approval of the project wholly or in part on compliance with the requirements or mitigation measures identified in subsections (G)(2)(b)(i) and (ii) of this section, during project review the County shall not impose additional mitigation under SEPA for those impacts so conditioned.

e. Nothing in this subsection (G)(2) limits the authority of the County in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by Chapter 43.21C RCW.

3. Threshold Determination. The “threshold determination” is the decision regarding whether there is a reasonable likelihood that the project will have a probable significant adverse impact on an element of the environment. A threshold determination is required for any proposal which meets the definition of “action” (WAC 197-11-704) and is not categorically exempt, a planned action, or subject to WAC 197-11-600(3). The responsible official shall make and publish for public comment as provided in subsection (I) of this section the threshold determination under SEPA:

a. DS. If a project may have a probable significant adverse impact, a determination of significance (DS) is issued, and an environmental impact statement (EIS) is required. In determining an impact’s significance, the responsible official shall take into account the guidance in WAC 197-11-330 and 197-11-794, including:

i. Locational, quantitative, and cumulative effects, severity and likelihood of the effects, and effects on environmentally sensitive or special areas; and

ii. Shall consider mitigation measures that will be implemented. The responsible official shall not balance whether beneficial aspects of a proposal outweigh its adverse impacts in determining significance.

b. DNS. If a project will not have a significant adverse impact, a determination of nonsignificance (DNS) is issued. As provided in WAC 197-11-340(3), a DNS will not be withdrawn based upon significant new information indicating, or on, a proposal’s probable significant adverse environmental impacts when a nonexempt license has been issued on a private project.

4. Mitigated DNS. The responsible official may issue a DNS as provided in this subsection and in WAC 197-11-350, based on conditions attached to the proposal by the responsible official or on changes to or clarifications of the proposal made by the applicant.

a. Mitigation measures that justify issuance of a mitigated DNS (MDNS) shall be incorporated in the DNS, shall be deemed conditions of approval of the permit decision, and may be enforced in the same manner as any term or condition of the permit. The County may incorporate implementation or enforcement provisions in the MDNS and require performance guarantees.

b. If the tentative County decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS, the County shall evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).

5. When a DS is issued, an opportunity will be provided to comment on the scope of the EIS that will be developed.

6. The responsible official shall provide for prompt and coordinated review by government agencies and the public on compliance with applicable environmental laws and plans, including mitigation for specific project impacts that have not been considered and addressed at the plan or development regulation level.

7. Durations of comment periods are as provided in subsection (I) of this section. At the end of the comment period the threshold determination becomes final unless retained, modified, or withdrawn, and the appeal period begins.

8. Preparation of EIS.

a. Preparation of the draft and final EIS and SEIS is the responsibility of the County under the direction of the responsible official. Before the County issues an EIS the responsible official must be satisfied that it complies with this section and with Chapter 197-11 WAC.

b. The draft and final EIS or SEIS will be prepared by the County or by a consultant in accordance with County procedures established for consultant selection. If the County requires an EIS for a proposal and the responsible official determines that a consultant will prepare the EIS, the applicant shall be so notified immediately after completion of the threshold determination.

c. The County may require an applicant to conduct specific investigations and to provide information the County does not possess. The applicant is not required to supply information for the purpose of EIS preparation if such information is not required under this section.

d. If a consultant is preparing an EIS, the responsible official shall assure that the EIS is prepared in a responsible manner. The County shall:

i. Initiate and coordinate scoping and ensure that the preparer receives all substantive information submitted through the scoping process;

ii. Assist the preparer in obtaining information from applicants; and

iii. Direct content and organization of the EIS.

e. The responsible official shall maintain procedures for preparation of EISs in accordance with the above.

9. The DNS and checklist, or final EIS, for nonexempt proposals shall accompany County staff recommendations to any appropriate advisory body such as the planning commission.

10. The County shall not take any action on the project permit application until the SEPA appeal period has lapsed.

H. Substantive Authority.

1. The County may attach conditions to a permit or approval for nonexempt actions pursuant to WAC 197-11-660, so long as:

a. The conditions are necessary to mitigate specific adverse environmental impacts identified in environmental documents prepared pursuant to this code and Chapter 197-11 WAC;

b. Such conditions are in writing;

c. The mitigation measures included in such conditions are reasonable and capable of being accomplished;

d. The County has considered whether other local, state, and federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

e. Such conditions are based on one or more policies in subsection (H)(3) of this section.

2. The County may deny a permit or approval for nonexempt actions pursuant to WAC 197-11-660, so long as:

a. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in an FEIS or final SEIS prepared pursuant to this code and Chapter 197-11 WAC;

b. A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact;

c. The denial is based on one or more policies in subsection (H)(3) of this section.

3. The County designates and adopts by reference the following policies as the basis for exercise of County authority pursuant to this section:

a. The County adopts by reference the policies in the following San Juan County plans and ordinances:

i. County Comprehensive Plan, as amended;

ii. SJCC Title 16, Chapters 16.36 (“The Waldron Island Limited Development District Subarea Plan”), 16.45 (“Shaw Island Subarea Plan”), 16.50 (“Open Space Program”), 16.55 (“Eastsound Subarea Plan”) and 16.80 (“Personal Wireless Service Facilities Subarea Plan”), as amended;

iii. County Shoreline Master Program, as amended;

iv. This title, as amended;

v. Chapter 15.04 SJCC, Construction Codes Adopted, as amended; and

vi. Ordinance 86-1986 (the Washington Department of Natural Resources “Trust Lands Management Subarea Plan”), as amended.

b. The policies enumerated in RCW 43.21C.020, State Environmental Policy Act.

I. Public Notice and Comment Period.

1. DNS/MDNS – Notice and Comment Period – Withdrawal of DNS/MDNS.

a. Notice. When the responsible official makes a threshold determination and issues a DNS under WAC 197-11-340 or MDNS under WAC 197-11-350, the responsible official shall give notice as follows:

i. Notice of the issuance of a DNS/ MDNS may be combined with other required notice, such as notice of project permit application (SJCC 18.80.030(A)) or notice of public hearing (SJCC 18.80.030(C)). Such notice shall state when comments are due;

ii. Notice of a DNS/MDNS shall also be sent to agencies with jurisdiction, the Department of Ecology, affected tribes, and to each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and

iii. Notice shall be published in the official County newspaper.

iv. Where notice of application under SJCC 18.80.030 is not required for a nonexempt action, or SEPA notice was not combined with the notice required in SJCC 18.80.030, the responsible official shall give notice of the issuance of DNS/ MDNS by publishing notice in the official County newspaper and by notifying groups which have expressed interest in a certain proposal or in the type of proposal being considered.

b. Comment Period.

i. The comment period for a DNS/ MDNS is 14 days following the issuance of the DNS/MDNS. The date of issuance for the DNS/ MDNS is the date the DNS/MDNS is sent to the Department of Ecology and agencies with jurisdiction and is made publicly available.

ii. The County shall not act upon a proposal for 14 days after the date the DNS is issued. An agency with jurisdiction may assume lead agency status only within this 14-day comment period.

iii. A DNS or MDNS becomes final at the end of the comment period unless the determination is modified or withdrawn by the responsible official.

iv. The responsible official shall reconsider the DNS/MDNS based on timely comments and may retain or modify the DNS/MDNS or, if the responsible official determines that significant adverse impacts are likely, withdraw the DNS/MDNS or supporting documents, as provided in WAC 197-11-340(3). When a DNS/MDNS is modified, the responsible official shall send the modified DNS/MDNS to agencies with jurisdiction. (See subsection (G)(3)(b) of this section.)

c. Withdrawal of DNS/MDNS.

i. If the responsible official withdraws a DNS/MDNS, a new threshold determination will be made and agencies with jurisdiction will be notified of the withdrawal and new threshold determination.

ii. When a DNS is withdrawn and a DS issued, notice of such DS must be published in the official County newspaper.

iii. Comments on such DS and/or scoping must be received within 21 days of the date of issuance of such DS.

2. DS – Notice and Comment Period – Withdrawal of DS.

a. Notice of Issuance of DS. If the responsible official issues a DS under WAC 197-11-360(3), the responsible official shall state the scoping procedure for the proposal in the DS, as required by WAC 197-11-408, and:

i. Circulate copies of the DS to the applicant, agencies with jurisdiction and expertise, if any, and affected tribes; and

ii. Publish notice of the DS in the official County newspaper.

b. Comment Period. Comments on a DS and/or scoping must be received within 21 days of the date of issuance of the DS. The date of issuance for the DS is the date the DS is sent to the Department of Ecology and agencies with jurisdiction and is made publicly available.

c. Withdrawal of DS.

i. If at any time after the issuance of a DS a proposal is changed so, in the judgment of the responsible official, there are no probable significant adverse environmental impacts, the DS shall be withdrawn and a DNS/MDNS issued.

ii. The DNS/MDNS shall be sent to all who commented on the DS and notice of such DNS/MDNS must be published in the official County newspaper.

iii. The comment period for such a DNS/MDNS is 14 days following the issuance of the DNS/MDNS. The date of issuance for the DNS/MDNS is the date the DNS/MDNS is sent to the Department of Ecology and agencies with jurisdiction and is made publicly available.

iv. The County shall not act upon a proposal for 14 days after the date the DNS is issued. An agency with jurisdiction may assume lead agency status only within the 14-day comment period.

v. Where a DS has been withdrawn and a DNS/MDNS issued, such proposal shall not be considered changed until all license or permit applications for the proposal are revised to conform to the changes or other binding commitments made by agencies or by applicants. (See WAC 197-11-360.)

3. DEIS/FEIS/SEIS – Notice and Comment Periods.

a. Notice. If the County issues a DEIS under WAC 197-11-455(5), FEIS under WAC 197-11-560, or SEIS under WAC 197-11-620, notice of availability of the documents shall be given by publishing notice in the official County newspaper; by notifying groups which have expressed interest in a certain proposal being considered; by notifying the news media; by sending notice to agency mailing lists; and by other means deemed appropriate by the responsible official. The DEIS/FEIS/SEIS shall be sent to those identified in WAC 197-11-455 (DEIS), 197-11-460 (FEIS), and 197-11-620 (SEIS).

b. Comment Period. The comment period for a DEIS is 30 days from the date of issuance unless extended by the responsible official pursuant to WAC 197-11-455.

4. The applicant shall be responsible for costs of the notice requirements of this section.

J. Public Hearings and Meetings.

1. If an open-record hearing on the proposal is held under some other requirement of law, the hearing shall be open to consideration of the environmental impact of the proposal, together with any environmental document that is available. This does not require extension of the comment periods for environmental documents.

2. In all other cases a public hearing on the environmental impact of a proposal shall be held whenever one or more of the following situations occur:

a. The County determines that a public hearing would assist it in meeting its responsibility to implement the purposes and policies of SEPA and its implementing rules;

b. When 50 or more persons who reside within the County, or who would be adversely affected by the environmental impact of the proposal, make written request to the lead agency within 30 days of issuance of the draft EIS; or

c. When two or more agencies with jurisdiction over a proposal make written request to the lead agency within 30 days of the issuance of the draft EIS.

3. Whenever a public hearing is held under subsection (J)(2) of this section, it shall occur no earlier than 15 days from the date the draft EIS is issued, nor later than 50 days from its issuance. Notice shall be given by publication in the official County newspaper and by any other method(s) determined by the director.

4. Whenever a public hearing is held under subsection (J)(2) of this section, it shall be open to discussion of all environmental documents and any written comments that have been received by the County prior to the hearing. A copy of the environmental document shall be available at the public hearing.

5. Comments at public hearings should be as specific as possible (see WAC 197-11-550).

6. The County may hold informal public meetings or workshops. Such gatherings may be more flexible than public hearings and are not subject to the above notice and similar requirements for public hearings.

7. Public meetings held under Chapter 36.70B RCW may be used to meet SEPA public hearing requirements so long as the requirements of this subsection are met. A public hearing under this subsection need not be an open-record hearing as defined in RCW 36.70B.020(3).

K. Appeals. Appeal procedures under RCW 43.21C.075 and WAC 197-11-680 are set out in SJCC 18.80.140. (Ord. 52-2008 § 14; Ord. 15-2002 § 5; Ord. 14-2000 §§ 7(NNN), (SSS), 12(A); Ord. 2-1998 Exh. B § 8.5)

18.80.060 Procedures for temporary events and uses.

A. Purpose. Allowed temporary events and uses are considered as either Level I, II, or III. A use which is prohibited by this code shall not be allowed as a temporary use (Level I, II or III).

1. Level I temporary events and uses are exempt from the need for a project permit as such uses are customary and incidental to the approved use of the property or of low impact and last a relatively short period of time.

2. Level II temporary uses require a temporary use project permit (approved by the administrator) and take place within the shoreline jurisdiction and/or exceed the duration set forth for Level I temporary uses.

3. Level III temporary uses require a project permit (i.e., conditional use permit).

B. Level I Temporary Uses (Exempt from Need for Temporary or Project Permit). The following temporary events or uses are exempt from the need for a temporary use permit or project permit:

1. Contractor’s offices (including trailers and mobile homes), equipment storage sheds and storage yards, and portable lavatories on the site of a permitted active construction project; on-site equipment repair, on-site staging, assembly and fabrication of parts, materials and supplies; workshops; and other uses incident to the construction for a duration not exceeding two years; except, that the operation of a portable asphalt batch plant on an active construction site shall not exceed six weeks duration;

2. Garage or yard sales conducted for a period not to exceed two days per event for a maximum of 10 days per calendar year;

3. Temporary events not customary and incidental to the property which are located on private or public property, parks or on public school properties, such as outdoor art, craft and book sales and sidewalk sales and shows; concerts or other performances; fireworks displays; dog trials and horse trials; parades and exhibits; and similar activities and events at the discretion of the administrator. These events may be conducted for a period not to exceed three days per event for a maximum of four events per calendar year, except that temporary events located wholly or in part within shoreline jurisdiction may be conducted only for a period not to exceed 24 hours per event and a maximum of four events per calendar year. All such events shall be subject to applicable provisions of the San Juan County Code (such as the outdoor festival regulations, Chapter 9.12 SJCC);

4. Rummage and other outdoor sales sponsored by schools or other nonprofit organizations for no more than three days per event and no more than four times in any calendar year;

5. Tents, portable offices, mobile homes, equipment storage, and portable lavatories incidental to any of the above activities; however, all such trailers, tents, sheds and portable lavatories shall comply with all applicable codes and are subject to the time limitations above; and

6. Farmers’ markets and roadside stands.

C. Level II Temporary Events and Uses (Temporary Use Permit Required). Temporary events and uses such as film production and Level I uses of longer duration than set forth in subsection (B) of this section, but where the property will nevertheless be restored to the condition it was in prior to the event or use, must obtain a temporary use permit as provided in this subsection. A Level II temporary use may not be commenced prior to obtaining a temporary use permit.

The administrator has the authority to require that an applicant obtain a project permit as a Level III temporary use if the administrator determines that the proposal exceeds the limits of Level II temporary use.

1. Notice for Level II temporary use permits must comply with the procedures set forth in SJCC 18.80.030(A) (mailing, publication, and posting of notice of application). Public comment on the notice of application for a Level II temporary use permit must comply with SJCC 18.80.030(B).

2. The administrator has the authority to approve, modify, or deny a temporary use permit application, and may impose conditions of approval.

3. A copy of the approved temporary use permit shall be posted on the site for the duration of the use. The posted copy shall identify the nature of the use, the location, days, and hours of operation, its duration, and conditions of approval, if any.

D. Level III Temporary Events and Uses (Project Permit Required). Except for farmers’ markets and roadside stands, the following events and uses shall be required to apply and obtain project permits, according to the classifications in Tables 18.30.030 and 18.30.040 and the procedures in this title:

1. A recurring temporary event, use or structure, where the same temporary event, use or structure is established or intended for establishment on any property on an annual or other periodic basis; or

2. The property where the temporary use will be located cannot or will not be returned to the condition it was in prior to the use; or

3. A temporary event or use that is of greater impact than set forth in subsection (C) of this section.

E. Criteria for Approval for Level II and Level III Temporary Uses. A permit shall only be approved by the administrator (Level II) or hearing examiner (Level III) where such decisionmaker makes findings as to the following criteria:

1. The proposed temporary event or use will not be detrimental to the public health, safety, or welfare, nor injurious to property or improvements in the immediate vicinity;

2. The proposed temporary event or use is compatible with the purpose and intent of the Comprehensive Plan and this code;

3. The location, days and hours of operation are specified;

4. The proposed temporary event or use will be conducted behind the building setback line, except as otherwise expressly permitted;

5. Adequate parking and traffic control can be provided in a safe manner;

6. Structures proposed for the event or use comply with applicable building and fire codes;

7. The proposed temporary event or use will not cause noise, light, or glare which will cause unreasonable adverse impacts to surrounding land uses. No use shall be made of equipment or material which produces unreasonable vibration, noise, dust, smoke, odor, or electrical interference to the detriment of adjoining property;

8. Any proposed use of public right-of-way is authorized by the County engineer;

9. Either the property on which the event or use is located will be restored to the condition it was in prior to the use within a specified time (Level II), or the condition of the property will be as specified in the permit (Level III);

10. Evidence of financial responsibility in a form acceptable to the administrator is provided when required by the administrator to assure compliance with the conditions of permit approval;

11. If located within the jurisdiction of the County Shoreline Master Program, the proposed temporary event or use meets all applicable shoreline policies, regulations, and permit requirements;

12. The proposed temporary event or use complies with outdoor festival regulations (Chapter 9.12 SJCC) and other federal, state, and local rules, regulations, and ordinances; and

13. The proposed temporary use (Level III) complies with the applicable permit criteria (i.e., conditional use permit).

F. Term.

1. Level II temporary use permits may not be approved by the administrator for more than a 90-day period;

2. One extension of no more than 45 days may be authorized by the administrator; and

3. A property owner or holder of a temporary use permit may not file an application for another temporary use permit for 24 months after the expiration of a temporary use, regardless of the proposed location for the use.

G. Appeals. Appeals of the approval or denial of a Level II temporary use permit must comply with the procedures specified in SJCC 18.80.140. (Ord. 15-2002 § 6; Ord. 14-2000 § 7(OOO), (PPP); Ord. 2-1998 Exh. B § 8.6)

18.80.070 Procedures for “Yes” uses (uses allowed outright).

A. Purpose and Applicability. “Yes” uses (uses allowed outright as indicated by the symbol “Yes” in Tables 18.30.030 and 18.30.040) must comply with the development standards in Chapter 18.60 SJCC and other applicable sections of this and other codes, but do not require a land use project permit. All site development, construction and structures must conform to the development standards of this code.

B. Preapplication Conferences and Site Inspections. Preapplication conferences and site inspections, on a time-available basis, are optional, but strongly encouraged to provide a prospective applicant and the County the opportunity to discuss the property owner’s plans; review available critical area maps; examine the unique characteristics of the site; identify protected species and habitat; discuss stormwater management and low impact development options; determine if and how other County regulations may apply; and to encourage the applicant to consider the effect of County regulations in designing the project. Any fee assessed for such a preapplication conference and site inspection shall be refunded upon submission of a permit application.

C. Critical Areas. This section outlines the process for reviewing projects to identify critical area requirements that apply under SJCC 18.35.020 through 18.35.140 (critical area regulations). Unless exempt under SJCC 18.35.020 through 18.35.050, prior to removal of vegetation or site disturbance, all development activities and vegetation removal requiring a project permit or development permit, review or approval under other sections of County code must undergo this review. Prior to approval, sufficient information must be provided to demonstrate compliance with SJCC 18.35.020 through 18.35.140. Any illegal degradation of protected critical areas must be mitigated and, if mitigation is not completed prior to issuance of permits, a financial guarantee must be provided.

1. Critical Area Review Process. All plans for development of commercial, industrial, institutional and public facilities must undergo review for compliance with groundwater protection requirements for critical aquifer recharge areas (SJCC 18.35.080). The department shall review the application, available maps, and information and, if requested by the property owner, shall conduct a site inspection prior to determining whether the proposed project may affect or be affected by a wetland, fish and wildlife habitat conservation area, frequently flooded area, or geologically hazardous area. If the area proposed for development or vegetation removal is not in a frequently flooded area; is more than 200 feet from a geologically hazardous area; is more than 300 feet from a wetland; or more than 200 feet from a fish and wildlife habitat conservation area; is more than 1,000 ft. from any golden eagle nests; and is more than one-quarter mile from any peregrine falcon or great blue heron nests, the department shall rule that the critical area review is complete with regard to those types of critical areas. Otherwise, the department will notify the applicant and provide them with a list of any report(s) or application materials required by SJCC 18.35.020 through 18.35.140. If required, these reports and materials must be received before an application will be deemed complete.

2. Critical Area Report.

a. Detailed requirements for critical area reports are identified in SJCC 18.35.020 through 18.35.140.

b. If the director finds that a report does not accurately reflect site conditions, is inadequate to determine compliance, or does not meet the requirements of this title, the director shall contact the qualified professional who prepared the report to discuss the issues, and if necessary shall have the report reviewed by a third party qualified professional. The report shall not be accepted as complete until it meets the applicable requirements.

D. Notice. Notice for “Yes” uses is given in accordance with SEPA review, if applicable (see requirements in SJCC 18.80.050).

E. Decisionmaking Authority. The director’s review of development permit applications for “Yes” uses includes review of the consistency of “Yes” uses with the applicable provisions of the Comprehensive Plan, this code (e.g., Chapter 18.60 SJCC, Development Standards, and Chapter 18.50 SJCC, Shoreline Master Program), review under SEPA (SJCC 18.80.050), if applicable, and the director’s finding that the proposal meets the requirements contained therein. (See definition of “development permit” in SJCC 18.20.040.)

F. Appeals. Appeals of determinations made in conjunction with “Yes” uses, including findings of consistency and concurrency, must be raised in a timely appeal of the approval or denial of the development permit application for the project. If no development permit is required for the proposed use, compliance with applicable standards of this and other codes is an enforcement matter (see Chapter 18.100 SJCC). (Ord. 2-2014 § 8; Ord. 26-2012 § 24; Ord. 15-2002 § 7; Ord. 2-1998 Exh. B § 8.7)

18.80.080 Permit procedures for provisional uses.

A. Purpose and Applicability. Provisional uses (indicated by “Prov” in Tables 18.30.030 and 18.30.040) must comply with the development standards in Chapter 18.60 SJCC and the performance standards of Chapter 18.40 SJCC. Provisional uses must obtain a project permit.

B. Notice. Notice for provisional uses must comply with the procedures set forth in SJCC 18.80.030(A). Public comment on the notice of application for a provisional use project permit must comply with SJCC 18.80.030(B).

C. Decisionmaking Authority. The administrator has authority to approve or deny provisional use permit applications according to the applicable provisions of this code. The administrator also has authority to impose conditions of approval on a provisional use permit.

D. Criteria for Approval.

1. The provisional use permit application shall only be approved by the administrator if the use has been reviewed for consistency with the applicable sections of this code (e.g., Chapter 18.40 SJCC, Performance Standards, Chapter 18.50 SJCC, Shoreline Master Program, and Chapter 18.60 SJCC, Development Standards) and found to meet the requirements set forth by this code; and

2. Any provisional use application (not including short subdivisions) involving property located within the jurisdiction of the state Shoreline Management Act but not requiring a shoreline permit must conform to the policies in Element 3 of the Comprehensive Plan and the applicable regulations in Chapter 18.50 SJCC (the Shoreline Master Program).

E. Term. Unless a shorter time period is specified in the provisional use permit conditions, development authorized through a provisional use permit shall be completed within five years from the date of provisional use permit approval or such permit shall become null and void. An extension of up to one year may be granted by the administrator if the permittee demonstrates good cause for an extension.

F. Appeals. Provisional use permit approvals or denials may be appealed in accordance with procedures specified in SJCC 18.80.140. (Ord. 15-2002 § 8; Ord. 2-1998 Exh. B § 8.8)

18.80.090 Permit procedures for provisional/conditional uses (formerly referred to as discretionary uses).

A. Purpose and Applicability. Provisional/conditional uses are indicated by “P/C” in Tables 18.30.030 and 18.30.040. These uses must conform to the purpose and intent of the land use designation in which the use is to be located.

B. Notice and Comment. Notice and public comment for P/C uses must comply with the procedures set forth for provisional use permits or conditional use permits, whichever applicable. (See SJCC 18.80.030.)

C. Decisionmaking Authority. Based upon the criteria set forth in this code, the director has authority to determine if an application for a P/C use should be processed as a provisional use permit or a conditional use permit. If processed as a provisional use permit application, the director is the decisionmaker. (See SJCC 18.80.080.) If processed as a conditional use permit application, the hearing examiner is the decisionmaker. (See SJCC 18.80.100.)

D. Determination Whether the Conditional Use Permit Process Will Be Required. The director shall use Table 8.2, below, as a guide to evaluate the impacts of the proposal. If any impact is “high” and is not mitigated to medium or low impacts, then the application must be processed as a conditional use as per SJCC 18.80.100. If “medium” impacts cannot be mitigated, then the director may require the application to be processed as a conditional use as per SJCC 18.80.100. In making this determination the director will consider the number of impact areas above the middle range of the medium impact category and the relative magnitude of those impacts. If a conditional use permit is not required, or if the impacts as determined from Table 8.2 are “low,” the application shall be processed as a provisional use under the procedures set forth in SJCC 18.80.080.

How to Use This Table

This table is intended as guidance for the director when making decisions per SJCC 18.80.090 for provisional/conditional uses, which were formerly referred to as discretionary uses (noted with a “P/C” or “D” in Tables 18.30.030 and 18.30.040).

An application that has:

• all low-impact uses is processed under the provisional use procedures of SJCC 18.80.080.

• one or more high-impact uses – If the high-level impacts are not mitigated to low or medium level, the application is processed under the conditional use procedures of SJCC 18.80.100.

• one or more medium-impact uses – An application with medium-impact uses may be processed using either the provisional use or conditional use procedures of this code, as determined by the director.

Note: Intensity, severity, and cumulative impact of the proposed uses will enter into the determination of which procedures will be used.

For air, water, or soil pollution, the Washington Department of Ecology (WDOE) may require any person proposing a new, changed, or existing discharge, disposal or emission to evaluate the potential for the discharge to cause a violation of applicable standards and regulations; certain state and federal permits and approvals also require additional information development. Depending on the proposed uses, the County may require an applicant to confer with the WDOE, and may use the results of any analysis, testing, or other information developed by or for WDOE or other agencies in determining the appropriate impact level and permit procedures.

Determination of the suitability of mitigation measures will include, among other things, the risk of “upset conditions” (the risk that the mitigation measures will fail, be overwhelmed, or exceed allowed discharges), and the potential severity of the impact should mitigation be ineffective or fail.

Table 8.2. Guidance for Administrative Review of Impacts for the Assignment of Applications to Provisional Use or Conditional Use.

Impact Parameter	Level of Impact(1)
Impact Parameter	Low	Medium	High
Critical Areas (see SJCC 18.35.020 through 18.35.140)
Geologically hazardous areas	No effect on Category I or II	Effect on Category II	Effect on Category I
Frequently flooded areas	None affected	No reduction in flood abatement volume	Reduces flood volume of 100-year floodplain
Regulated wetlands or fish and wildlife habitat conservation areas	No impact	Mitigable impact	Any impact that cannot be mitigated
Air Pollution
Air pollutants and emission rates (as defined in WAC 173-400-030, emission rates and performance standards WAC 173-400-040 through 173-400-115)	Normal for SFR/EQ(2) (including meeting requirements of Chapter 173-433 WAC)	> 1 SFR/EQ; or Pollutant types or emission levels require registration with WDOE and a new source review per WAC 173-400-110	> 3 SFR/EQ; or A new source review reveals: – Major source (potential for emission of 100 tons of any regulated pollutant); or – Potential to emit 25% of a significant emission as defined in WAC 173-400-030; or – Pollutants will be emitted which will affect an area that is in nonattainment of National Ambient Air Quality Standards (WAC 173-400-030 and 173-400-113); or – Hazardous pollutants (per WAC 173-400-075, and 40 CFR, Part 61) will be emitted
	(Note: Emissions standards in Chapter 173-400 WAC may not be exceeded)
Class I areas (national parks, or national wilderness areas)	No visibility impairment	No visibility impairment	Emissions contribute to any visibility impairment
Airport visibility	No visibility reduction	No visibility reduction	Emissions increase or promote haze or fog
Scenic open space, and scenic viewpoints or view corridors identified on open space maps	No discernable change	Minor effect on visibility (sight distance, contrast, or color) or scenic qualities	Materially reduces visibility (sight distance, contrast, or color) or scenic qualities
Scenic and property value impacts from personal wireless service facilities (also see lighting section below).	Facility within height limit of land use designation or disguised or camouflaged as an allowable exemption to the height standard.	Facility ≤ 75 feet, exceeding height limit of land use designation and not disguised as an allowable exemption to the height standard.	Facility > 75 feet that is not disguised or camouflaged as an allowable exemption to the height standard
Groundwater Pollution
Groundwater pollutants (as defined in WAC 173-200-030 through 173-200-050, 40 CFR Part 141, and WAC 246-290-310)	No measurable discharge of pollutants to groundwater	< 25% of criteria in WAC 173-200-040 and 173-200-050, 40 CFR Part 141, and WAC 246-290-310	The cumulative pollutant load will exceed early warning values (if established per WAC 173-200-070); or ≥ 25% of criteria in WAC 173-200-040 and 173-200-050, 40 CFR Part 141, and WAC 246-290-310
	(Note: The most stringent of the following criteria may not be exceeded: • WAC 173-200-040 and 173-200-050 • 40 CFR Part 141 • WAC 246-290-310)
Adopted watershed or other plan with groundwater prescriptions	In conformance with requirements and guidelines of adopted plan	Not conforming with guidelines (i.e., measures recom-mended but that exceed requirements)	Not conforming with requirements set forth in the adopted plan
Groundwater in national and state parks and national wildlife refuges	No degradation	No degradation	Any degradation of groundwater quality (WAC 173-200-030)
Surface Water Pollution
Surface water pollutants (as defined in WAC 173-201A-030 through 173-201A-050)	Not measurable	< 25% of criteria in WAC 173-201A-040 through 173-201A-110	≥ 25% of criteria in WAC 173-201A-040 through 173-201A-110
Nonpoint and stormwater pollution (all applicable best management practices must be in place; WAC 173-201A-160)	Not measurable	< 25% of criteria in WAC 173-201A-040 through 173-201A-110	≥ 25% of criteria in WAC 173-201A-040 through 173-201A-110
	(Note: The maximum criteria in WAC 173-201A-040 for acute and chronic toxicity for fresh water and marine waters may not be exceeded.) (Note: The max. criteria in WAC 173-201A-050 through 173-201A-110 may not be exceeded.)
Surface water classifications (defined in WAC 173-201A-030 and 173-201A-120 through 173-201A-140)	Maintains standards in WAC 173-201A-030	The cumulative deterioration from present condition to the next lower classification < 25%	The cumulative deterioration from present condition to next lower classification ≥ 25%
	(Note: Minimum standards in WAC 173-201A-030 for turbidity, dissolved oxygen, temperature, pH, coliforms, etc. may not be exceeded)
Pollutant accumulation in sediment	No accumulation of pollutants	The cumulative pollutant load < 25% of criteria in WAC 173-204-320 through 173-204-340	The cumulative pollutant load ≥ 25% of criteria in WAC 173-204-320 through 173-204-340
	(Note: The maximum criteria in WAC 173-204-320 through 173-204-340 for pollution of fresh water and marine sediments may not be exceeded.)
Adopted watershed or other plan	In conformance with requirements and guidelines of adopted plan	Not conforming with guidelines (i.e., measures recom-mended but that exceed requirements)	Not conforming with requirements set forth in the adopted plan
Total phosphorus entering a lake or reservoir	Concentration < 0.01 mg/Liter	Concentration < 0.05 mg/Liter	Concentration ≥ 0.05 mg/Liter(3)
Soil Pollution
Soil Contamination (by the placement or disposal of contaminated fill, soil, spoils, solid waste, contaminated water or other liquids, or other materials or substances)(4)	No detectable wastes governed by WAC 173-303-070 through 173-303-100 and 173-303-120 (including dangerous, extremely hazardous, toxic, infectious, radioactive, ignitable, corrosive, reactive, persistent, or putrescible substances)	One or more of these substances are detectable, and < 25% of criteria in WAC 173-303-090 through 173-303-120	One or more of these substances are detectable, and ≥ 25% of criteria in WAC 173-303-090 through 173-303-120
	(Note: Criteria of Chapter 173-303 WAC may not be exceeded, and all requirements of Chapter 173-303 WAC must be met.)
Change in soil pH	Change < 0.2 units	Change ≤ 0.5 units	Change > 0.5 units
Storm Drainage and Erosion
Runoff increase (equivalent to that produced by indicated amounts of impervious surface)	≤ 4,000 square feet of total impervious surface area	between 4,000 and 12,000 square feet of total impervious surface area; or between 1,000 and 5,000 square feet of total impervious parking surface area	> 12,000 square feet of total impervious surface area; or > 5,000 square feet of total impervious parking surface area
Erosion	No measurable changes	More than one acre will be cleared or graded, but potential offsite effects are mitigable	More than 3 acres exposed at one time; or Area has high erosion potential; or Offsite effects are not completely mitigable
Utilities Usage and Demand
Solid waste quantity generated (not including waste legally disposed of outside the County)	≤ average generated by 1 SFR/EQ(2)	≤ 2 times the average generated by 1 SFR/EQ without mitigation	> 2 times the average generated by 1 SFR/EQ without mitigation
Sanitary sewerage (demand on community system capacity)	≤ 1 SFR/EQ demand on system capacity	> 1 SFR/EQ demand on system capacity	Service demand exceeds 3,400 gallons/day
Water quantity	≤ the amount required for 1 SFR/EQ	≤ the amount required for 3 SFR/EQ	> the amount required for 3 SFR/EQ
Electricity quantity	≤ the amount required for 1 SFR/EQ	≤ the amount required for 3 SFR/EQ	> the amount required for 3 SFR/EQ
Noise and Odor
Sound level (increase in 1-hour average background sound level in local areas outside the boundary of the project area)	≤ 2 dBA	≤ 5 dBA	> 5 dBA; modifiers: extended duration; very low or high frequency; or sharp, penetrating pitch
Change in odors beyond property boundary	None discernible	Any discernible obnoxious odor	Any discernible obnoxious odor lasting 15 minutes or longer per day
Traffic(5)
Passenger vehicle trips generated/day(6)	5 round trips	6 to 19 round trips	20 or more round trips
Vehicle type (gross vehicle weight = GVW) using road	< 10,000 pounds GVW	< 20,000 pounds GVW	≥ 20,000 pounds GVW
Visual Quality
Lighting(7)	Pathway lighting 36 inches or lower at average 1 foot-candle or less and no direct illumination beyond property boundary	Fixture height > 3 feet; or Average > 1 foot-candles; or Any direct illumination beyond property boundary	Fixture height ≥ 20 feet; or Average > 10 foot-candles; or Any direct illumination beyond property boundary
Parking	≤ 2 new spaces	3 to 9 new spaces	≥ 10 new spaces
Visible outdoor storage(8)	≤ 500 square feet	≤ 1,000 square feet	≥ 1,000 square feet
Lot coverage(9)	≤ 5,000 square feet	≤ 10,000 square feet	> 10,000 square feet
Miscellaneous and Unforeseen Impacts
[Appropriate parameter]	≤ 1 SFR/EQ	≤ 3 SFR/EQ	> 3 SFR/EQ

Notes:

1. As used in this table, the term “impact” refers to adverse impacts. These impact levels are for the individual project, except as indicated. In making an assignment to low, medium, or high, and in assigning the application to processing under provisional or to conditional use procedures, the director may consider the cumulative impact of other, like impacts at the site, cumulative impact to the receiving sites or resources from this project and other sources, the intensity and severity of the impact to the receiving site or resources, and the suitability of mitigation measures.

2. “SFR/EQ” = a single-family residence or equivalent. This is based on allowable uses in the applicable land use designation (e.g., in a residential area a single-family residence would be used for comparison while in a commercial designation the typical commercial use would be used).

3. U.S. Environmental Protection Agency, 1986. Quality criteria for water, EPA 440/5-86-001.

4. Dangerous and extremely hazardous wastes are defined at WAC 173-303-040, and designated in WAC 173-303-070 through 173-303-100 and 173-303-120, as amended, and the SJC Solid Waste Ordinance, 17-96, as amended. Excluded and exempted wastes are defined at WAC 173-303-071 through 173-303-073.

5. Trips, type of vehicle, and nature of access combine to create level of impact.

6. Round trips per day guidelines are based on access to the activity being provided by paved major or minor collector roads. If access is by major collector roads only, the trips per day should be moved one impact category lower. If access is by road classified as a minor collector road or lower, the trips per day should be moved one impact category higher, e.g., if an activity generates 15 round trips per day and has access from a major collector road, the impact is low; if it has access from a minor collector road or lower, the impact is high.

7. Vehicle lights and required lighting for personal wireless service facilities included.

8. Visible from adjoining properties.

9. “Lot coverage” is described in SJCC 18.60.050.

(Ord. 26-2012 § 25; Ord. 10-2012 § 26; Ord. 26-2002 § 6; Ord. 15-2002 § 9; Ord. 12-2001 § 8; Ord. 14-2000 §§ 7(AAA), 8(C); Ord. 2-1998 Exh. B § 8.9)

18.80.100 Permit procedures for conditional use and variance permits.

A. Purpose and Applicability. Conditional use permits allow flexibility in the implementation of this code by controlling undesirable impacts through specific permit conditions. Variances ensure that all persons and their property are guaranteed equal rights and opportunities under similar circumstances. A variance is never to be used to endow certain persons or property with special privileges denied to all others under similar circumstances. Variances may only be granted for dimensional, bulk, and area requirements specified by this code. (For changes from use or density standards, see the procedures for a site-specific redesignation, SJCC 18.90.020.) The following uses are subject to this section:

1. Conditional Uses (indicated by “C” in Tables 18.30.030 and 18.30.040) and discretionary uses (indicated by “D” in Tables 18.30.030 and 18.30.040) that the director has determined require a conditional use permit;

2. Variances from standards other than those in Chapter 18.50 SJCC.

B. Notice and Public Hearing. Notice of application and of public hearing is required in accordance with the procedures in SJCC 18.80.030. An open-record predecision hearing is required for conditional use permit and variance applications (see SJCC 18.80.040).

C. Decisionmaking Authority. The hearing examiner has the authority to approve or deny conditional use permit and/or variance applications, and to impose conditions of approval on such permits.

D. Conditional Use Permits – Criteria for Approval. A conditional use permit shall be granted by the County only if the following criteria are met:

1. The proposed use will not be contrary to the intent or purposes and regulations of this code or the Comprehensive Plan;

2. The proposal is appropriate in design, character and appearance with the goals and policies for the land use designation in which the proposed use is located;

3. The proposed use will not cause significant adverse impacts on the human or natural environments that cannot be mitigated by conditions of approval;

4. The cumulative impact of additional requests for like actions (the total of the conditional uses over time or space) will not produce significant adverse effects to the environment that cannot be mitigated by conditions of approval;

5. The proposal will be served by adequate facilities including access, fire protection, water, stormwater control, and sewage disposal facilities;

6. The location, size, and height of buildings, structures, walls and fences, and screening vegetation associated with the proposed use shall not unreasonably interfere with allowable development or use of neighboring properties;

7. The pedestrian and vehicular traffic associated with the conditional use will not be hazardous to existing and anticipated traffic in the neighborhood;

8. The proposal complies with the performance standards set forth in Chapter 18.40 SJCC;

9. The proposal does not include any use or activity that would result in the siting of an incompatible use adjacent to an airport or airfield (RCW 36.70.547); and

10. The proposal conforms to the development standards in Chapter 18.60 SJCC.

E. Variances – Criteria. A variance shall be granted only if the applicant demonstrates that the following criteria have been met:

1. Literal interpretation and application of provisions of this code would deprive the applicant of the rights commonly enjoyed by other properties in the same district under the terms of this code, and allowing the variance will be in harmony with the intent and spirit of this code;

2. A variance is necessary for the preservation and enjoyment of a property right possessed by other property in the same vicinity or district, but which is denied to the property in question because of special circumstances on that property;

3. That the hardship described under this subsection 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 code, and not, for example, from deed restrictions or the applicant’s own actions;

4. The granting of the variance will not be materially detrimental to the public welfare or injurious to the right of other property owners in the vicinity; and

5. The variance will not permit a use prohibited by this code in the district in which the subject property is located.

F. Term. Unless a shorter time period is specified in permit conditions, development authorized through a conditional use or variance permit shall be completed within five years from the date of permit approval or the permit shall become null and void. An extension of up to one year may be granted by the decisionmaking authority if the permittee demonstrates good cause for an extension. (Ord. 11-2011 § 8; Ord. 15-2002 § 10; Ord. 4-2001 §§ 2, 3; Ord. 14-2000 § 7(AAA); Ord. 2-1998 Exh. B § 8.10)

18.80.110 Shoreline preapplication meetings, permit exemption procedures, and vesting – Preapplication meetings.

Preapplication meetings are required for all shoreline substantial development permits, conditional use permits, and shoreline variances. Preapplication meetings are encouraged for all other project or development permits. Preapplication materials must be submitted to the department a minimum of 10 days prior to the scheduled preapplication meeting. Failure to submit the documents will result in postponement of the preapplication meeting. The director may waive this requirement for demonstrated cause. (Ord. 8-2020 § 14; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.1 Shoreline preapplication meetings, permit exemption procedures, and vesting – Purpose and applicability.

A. This section includes the procedures necessary to ensure that the provisions of the SMP are implemented and enforced, and to ensure that all persons affected by the SMP are treated in a fair and equitable manner. See SJCC 18.50.600 for the table of uses and permit types by shoreline designation.

B. This section applies to all lands and waters within the jurisdiction of the SMP and to all persons and agencies described in SJCC 18.50.030(B) and (C).

C. The following project permits are referred to as “shoreline permits” and are subject to SMP procedure:

1. Shoreline substantial development permits;

2. Shoreline conditional use permits; and

3. Shoreline variances.

D. Certificates of exemption from shoreline substantial development permits are also regulated by this chapter. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.2 Shoreline preapplication meetings, permit exemption procedures, and vesting – Notice of application for shoreline permit.

A. A notice of application is required for shoreline permit applications as provided in SJCC 18.80.030.

B. Applications for shoreline permits may be circulated for comment to the director of the University of Washington Friday Harbor Laboratories on the same schedule as other reviewing agencies. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.3 Shoreline preapplication meetings, permit exemption procedures, and vesting – Administrative responsibilities.

The administrator’s responsibilities are set forth in SJCC 18.50.020(E). (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.4 Shoreline preapplication meetings, permit exemption procedures, and vesting – Consolidated permit processing.

Proposals that involve two or more types of project permits may be consolidated under the “highest” procedure (i.e., the rightmost applicable column in Table 8.1, SJCC 18.80.020) required for such permits, or the applications may be processed individually under each of the procedures identified by this code. The applicant may request the consolidation of hearings with other local, state, regional, federal or other agencies in accordance with RCW 36.70B.110. (See also SJCC 18.80.020(B)(2), Consolidated Permit Processing, and SJCC 18.80.140(G), Consolidated Appeal Hearings.) (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 4-2001 § 4; Ord. 2-1998 Exh. B § 8.11)

18.80.110.5 Shoreline preapplication meetings, permit exemption procedures, and vesting – Decision-making authority.

A. The Washington Department of Ecology (WDOE) may approve, approve with conditions, or deny a shoreline variance or conditional use permit application approved by the hearing examiner.

B. The hearing examiner has authority to take the following actions:

1. Based upon the criteria in SJCC 18.80.110.8 and 18.80.110.10, hear and approve, approve with conditions, or deny shoreline substantial development permits and shoreline conditional use permits following receipt of the recommendations of the director; and

2. Based on the criteria in SJCC 18.80.110.9, hear and approve, approve with conditions, or deny variances from the provisions of the SMP following receipt of the recommendations of the director.

C. The director shall be the final decision-maker for administrative shoreline substantial development permit applications for public pedestrian trails and residential accessory structures (excluding shoreline stabilization, boathouses and over-water structures) that do not meet the exemption threshold in SJCC 18.50.050. The hearing examiner shall be the final decision-maker for all other shoreline substantial development permit applications. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.6 Shoreline preapplication meetings, permit exemption procedures, and vesting – Shoreline substantial development permit exemptions.

A. The director will make an administrative determination as to whether a proposal is exempt from a shoreline substantial development permit. The applicant bears the burden of proving that a proposal is exempt.

B. Developments that are exempt from a shoreline substantial development permit are established in SJCC 18.50.040 and 18.50.050. In making this determination, the director will consider the ultimate scope of a proposal and its consistency with the regulations of the SMP. The director may request additional information from the applicant and may make site inspections.

C. If a proposal is exempt from a shoreline substantial development permit, the director will prepare and issue a certificate of exemption when required by WAC 173-27-040 and 173-27-050 and SJCC 18.50.050(B).

D. A copy of approved certificates of exemption shall be mailed to the applicant and to the WDOE. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.7 Shoreline preapplication meetings, permit exemption procedures, and vesting – Shoreline permits – Administrative actions.

A. The director shall review development and project permit applications for consistency with the SMA and SMP, make a consistency determination, and report the results of this review and determination to the hearing examiner unless the director is the decision-maker. The director may request additional information from the applicant and may make site inspections.

B. The director shall not issue a development or project permit that is subject to shoreline permit requirements until a shoreline permit has been granted. Development or project permits issued are subject to the conditions of approval on the shoreline permit.

C. When approving a shoreline permit, the decision-maker may attach conditions to ensure consistency with the SMA, SMP and applicable provisions of this code. The decision-maker shall also prepare findings of fact and conclusions of law.

D. Within eight days of the decision-maker’s final decision, the director using return receipt requested mail will send WDOE and the office of the Attorney General copies of the permit application, pertinent materials used to make the final decision (see Chapter 43.21C or 90.58 RCW), the permit, and any other written evidence related to the decision-maker’s final decision. The date of filing a shoreline substantial development permit decision is the date WDOE receives the County’s decision. WDOE shall issue and transmit their decisions on conditional use and variance permits to the department and applicant within 30 days of the department’s submittal to them. The date of filing for shoreline conditional use permits or shoreline variances is the date that WDOE transmits their permit decision to the department and applicant. The date of filing for shoreline substantial development permits simultaneously mailed to Ecology with a shoreline conditional use permit or shoreline variance is the date that Ecology’s decision on the shoreline conditional use permit or shoreline variance is transmitted to the applicant and the department.

E. Construction or substantial progress toward construction of a project for which a shoreline permit is granted must be undertaken within two years after WDOE’s date of filing. Substantial progress toward construction includes letting bids, making contracts, purchase of materials, utility installation and site preparation, but does not include use or development inconsistent with the SMP or the terms of permit approval. However, the two-year period does not include time when development could not proceed due to related administrative appeals or litigation, nor include time necessary to obtain other required permits for the project from state and federal agencies.

F. Unless specified otherwise in permit conditions, all development authorized by a shoreline permit shall be completed within five years of the WDOE date of filing or the permit shall become null and void. A permittee may request a time extension before the permit expires by making a written request to the director, stating the reasons. The decision-maker will review the permit, and upon a finding of good cause:

1. Extend the permit for a period not to exceed one year; or

2. Terminate the permit.

However, nothing in this section precludes the decision-maker from issuing shoreline permits with a fixed termination date other than five years based upon a finding of good cause. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.8 Shoreline preapplication meetings, permit exemption procedures, and vesting – Criteria for approval of shoreline substantial development permits.

A. A shoreline substantial development permit will be granted by the County if the applicant demonstrates the proposal is:

1. Consistent with the policies of the SMA, Chapter 90.58 RCW and Chapters 173-26 and 173-27 WAC, as amended;

2. Consistent with the policies and regulations of this SMP;

3. Consistent with other applicable sections of this code; and

4. Consistent with the goals and policies of the Comprehensive Plan.

B. The conditions specified by the decision-maker to make the proposal consistent with the SMP and to mitigate or avoid adverse impacts to shoreline ecological functions will be attached to the permit. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.9 Shoreline preapplication meetings, permit exemption procedures, and vesting – Shoreline variances.

A. Variances are strictly limited to granting relief from specific bulk, dimensional, or performance standards set forth in this SMP. Variances may be approved where there are extraordinary or unique circumstances related to the property and the strict implementation of the SMP will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020.

B. Variances or exemptions granted from the provisions of other local regulations will not be construed to constitute variances from the provisions of this SMP.

C. The location of the proposed project will determine which of the following two sets of variance criteria are to be considered. Variances from the provisions of this SMP may be granted when the applicant has proven that one of the following sets of criteria has been met:

1. Variances for development located landward of the ordinary high water mark (OHWM) except within those areas designated as wetlands pursuant to Chapter 173-22 WAC may be authorized if the applicant can demonstrate all of the following:

a. That the strict application of the bulk, dimensional, or performance standards set forth in this SMP precludes or significantly interferes with reasonable use of the property that is not otherwise prohibited by the SMP;

b. That the hardship is specifically related to the property, is the result of unique conditions such as irregular lot shape, size, or natural features, is not, for example, from deed restrictions or the applicant’s own actions and results from the application of specific provisions of the SMP;

c. That the design of the project is compatible with other allowed activities in the current land use designation and will not cause adverse effects to adjacent properties or shoreline ecological functions;

d. That the requested variance does not constitute a grant of special privilege that cannot be enjoyed by other property owners in the area, and it is the minimum necessary to afford relief; and

e. That the public interest will suffer no substantial detrimental effect; or

2. Variances for development that will be located either waterward of the OHWM or within wetlands designated under Chapter 173-22 WAC may be authorized provided the applicant can demonstrate all of the following:

a. Strict application of the bulk, dimensional, or performance standards set forth in the SMP precludes a reasonable use of the property not otherwise prohibited by it;

b. The proposal is consistent with subsections (C)(1)(a) through (e) of this section; and

c. Public rights of navigation and use of the shorelines will not be adversely affected.

D. The cumulative impact of additional requests for like actions will be reviewed. For example, if variances were granted to other developments or uses where similar circumstances exist, the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall result in no net loss of shoreline ecological functions.

E. Requests to vary the use of a shoreline area are processed as a shoreline conditional use permit rather than a shoreline variance. Uses that are prohibited by the SMP may not be authorized by a variance or a conditional use permit.

F. Filing of variances with and review by the WDOE are described in SJCC 18.80.110.7(D).

G. Shoreline variance applications must include adequate information to demonstrate compliance with the variance criteria. Applications must include at least the following information as applicable:

1. The items listed in SJCC 18.80.020(C) along with photos of the site and a detailed site plan showing:

a. The location of frequently flooded areas and FIRM panel numbers within the proposed development area;

b. Geologically hazardous areas in or within 200 feet of the proposed development area;

c. The field located OHWM on the site, and wetlands areas in or within 300 feet of the proposed development area and fish and wildlife habitat conservation areas in or within 200 feet of the proposed development area;

d. The location of any golden eagle nests in or within 1,000 feet of the proposed development area; and

e. The location of any peregrine falcon or great blue heron nests in or within one-quarter mile of the proposed development area;

2. Any related project documents such as applications to other agencies or environmental documents prepared pursuant to the State Environmental Policy Act (SEPA);

3. Required critical area reports, delineations, and the best available science (BAS) documents supporting the proposal;

4. A copy of proposed or approved stormwater and erosion control plans as required by SJCC 18.60.060 and 18.60.070;

5. A narrative describing anticipated adverse impacts to the shoreline ecological functions and critical areas, based on best available science, and that explains how the proposal meets the shoreline variance approval criteria;

6. If necessary, mitigation, monitoring and adaptive management plans meeting the requirements of SJCC 18.50.140, 18.50.150 and 18.50.160 for mitigating any adverse impacts or harm, and demonstrating how the proposal results in no net loss of shoreline ecological functions;

7. A cost estimate prepared by a qualified professional, for implementing mitigation and monitoring plans; and

8. A financial guarantee equal to the cost of implementing the mitigation and monitoring plus an additional 15 percent. This guarantee and the associated agreement must meet the requirements of SJCC 18.80.200. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.10 Shoreline preapplication meetings, permit exemption procedures, and vesting – Shoreline conditional use permits.

A. Shoreline conditional use permits allow greater flexibility in application of the use regulations of the SMP consistent with the policies of RCW 90.58.020. Shoreline conditional use permits may also be granted in circumstances where denial of the permit would thwart RCW 90.58.020. By providing for the control of undesirable impacts through the application of special conditions, the scope of uses within each of the shoreline designations can be expanded to include additional uses. Activities classified as shoreline conditional uses will be allowed only when the applicant demonstrates that the proposed use will be compatible with allowed uses within the same area.

B. Uses that are specifically prohibited by the SMP may not be authorized through a conditional use permit or variance.

C. Conditional use permits granted under other sections of this code are not to be construed to constitute approval of a shoreline conditional use.

D. Uses that are classified in the SMP as conditional uses may be authorized by the County if the applicant can demonstrate all of the following:

1. The proposed use is consistent with the policies of RCW 90.58.020 and the SMP;

2. The proposed use will not interfere with the normal public use of public shorelines;

3. The proposed use of the site and project design are compatible with other allowed uses within the area;

4. The proposed use will result in no net loss of shoreline ecological functions;

5. The cumulative impacts of additional requests for like actions in the area, or for other locations where similar circumstances exist, will result in no net loss of shoreline ecological functions (e.g., the total of conditional uses shall remain consistent with RCW 90.58.020 and the SMP); and

6. The public interest will suffer no substantial detrimental effect.

E. Uses that are not classified in this SMP may be authorized by conditional use permit; provided, that the applicant demonstrates consistency with the criteria in WAC 173-27-160(1) and the SMP. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.11 Shoreline preapplication meetings, permit exemption procedures, and vesting – Procedures for revisions to shoreline permits.

A. When an applicant seeks to revise a shoreline permit, an application in a form prescribed by the director together with detailed plans and text describing the proposed changes must be filed with the department. The director will determine whether the proposed changes are within the scope and intent of the original permit and are consistent with the SMP and the SMA.

The director may find proposed revisions are within the scope and intent of the original permit if all the following conditions are met:

1. No additional over-water construction is involved, except that pier, dock, or float construction may be increased by 500 square feet or 10 percent more than the provisions of the original permit, whichever is less;

2. The building footprint and height are not increased by more than 10 percent from the provisions of the original permit;

3. The permit revision does not exceed height, lot coverage, setback, or any other requirements of the SMP (unless a variance to specific development standards was approved as part of the original permit);

4. Additional or revised landscaping complies with any conditions attached to the original permit and with the applicable regulations;

5. The use authorized in the original permit is not changed; and

6. No increase in adverse impacts to shoreline ecological functions will be caused by the project revision.

B. If the revisions meet the above criteria for administrative approval, a notice of application will be published per SJCC 18.80.030.

C. If the proposed revision cannot meet any one of the criteria in subsection (A) of this section, a public hearing with the hearing examiner will be scheduled and advertised according to the public notice provisions of SJCC 18.80.030.

1. If the hearing examiner determines that the proposed changes are within the scope and intent of the original permit, as defined by WAC 173-27-100(2), the revision will be granted.

2. A permit revision approved by the hearing examiner will become effective immediately unless the original permit involves a conditional use or a variance. Following the hearing examiner’s action, the locally approved revision will be submitted to the WDOE. In addition, the director shall submit a copy of the examiner’s decision to all parties of record to the original permit action.

If the revision to the original permit involves a conditional use or a variance, the WDOE may approve, approve with conditions or deny the revision. (See SJCC 18.80.110.7(D).)

3. Appeals shall be submitted and processed in accordance with SJCC 18.80.140. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.12 Shoreline preapplication meetings, permit exemption procedures, and vesting – Rescission of shoreline permits.

Any shoreline permit may be rescinded by the issuing authority pursuant to RCW 90.58.140(8) upon finding that the permittee has failed to comply with the permit terms and conditions. In the event that the permittee is denied a required sewage disposal, building, or other permit necessary for the project in question, the shoreline permit may be rescinded by the decision-maker. If a shoreline permit is rescinded, the permittee shall be notified by certified mail. Copies of the final action will be filed with the WDOE. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.13 Shoreline preapplication meetings, permit exemption procedures, and vesting – Appeals.

Aggrieved parties have 21 days from the date of filing to file appeals to the Shorelines Hearings Board. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.110.14 Shoreline preapplication meetings, permit exemption procedures, and vesting – Vesting.

A. Complete applications for a development or project permit, to be processed under SJCC Titles 15, 16 and 18 and subject to Chapter 18.50 SJCC, that were filed prior to October 30, 2017, vest to the laws and regulations in effect when the complete application was filed with the department and all required permit fees were paid except as provided in subsections (F), (G) and (H) of this section.

B. An application for a development or project permit, to be processed under SJCC Titles 15, 16 and 18 and subject to Chapter 18.50 SJCC, that is filed after October 30, 2017, vests to the laws and regulations in effect when the complete application was filed with the department and all required permit fees were paid except as provided in subsections (F), (G) and (H) of this section.

C. If a vested permit application contemplates one or more future uses or structures and the application contains a detailed description of the uses and improvements and a detailed site plan consistent with all laws and regulations in effect at the time the original application vested, then subsequent permit applications filed for those future use(s) are vested to the laws and regulations in effect at the time the original permit application vested.

D. A detailed description means a detailed site plan drawn to scale, specifying the location of all buildings and improvements to be constructed in conjunction with the use(s). The detailed description must address density, building setbacks, critical area buffers, lot coverage, lot width requirements, and bulk (length, height and width), driveways, stormwater features, water and sewer infrastructure and other improvements necessary for the development.

E. If the development approval does not contain the information in subsections (C) and (D) of this section, applications for future use(s) are subject to all later enacted laws and regulations in effect at the time the complete application for the future use(s) vests.

F. The County may impose conditions on development and project permits pursuant to the State Environmental Policy Act, Chapter 43.21C RCW, Chapter 197-11 WAC and SJCC 18.80.050 to mitigate potentially adverse environmental impacts.

G. The County may impose new regulations such as requirements of the building, health, and fire codes on vested development permits when necessary to protect the public health and safety.

H. Applications for Comprehensive Plan amendments processed under Chapter 18.90 SJCC are not subject to the vesting rules in this section. (Ord. 8-2020 §§ 14, 17; Ord. 11-2017 § 2; Ord. 1-2016 §§ 4, 84(A), (B), (G); Ord. 15-2002 § 11; Ord. 2-1998 Exh. B § 8.11)

18.80.120 Procedures for nonconforming uses and structures.

A. Legally established land uses and structures that subsequently became nonconforming because of changes to County land use regulations continue to be legal. SJCC 18.40.310 provides standards for legally nonconforming structures and uses. Nonconforming uses, structures and activities under the jurisdiction of the SMP are subject to the provisions of SJCC 18.50.090.

B. No project or development permit will be approved for any nonconforming use or structure that has been abandoned per SJCC 18.40.310(J).

C. Nonconforming uses or structures may be relocated on the same parcel.

D. When evaluating proposals for the alteration, relocation, modification, or expansion of nonconforming uses or structures, the decisionmaker shall consider the total impact of the nonconforming use or structure, as well as the added impact of the incremental changes being proposed, and the consistency of the changes with the applicable land use designation.

E. Procedures for Nonconforming Use or Structure Not Subject to the SMP.

1. The procedures for provisional uses in SJCC 18.80.080 apply to the actions and activities described in SJCC 18.40.310(B) through (D), as limited by SJCC 18.40.310(H) through (J).

2. The procedures for conditional uses in SJCC 18.80.100 apply to the actions and activities described in SJCC 18.40.310(F), as limited by SJCC 18.40.310(H) through (J).

F. Any use, structure, or other site improvement not established in compliance with this code and other applicable codes and regulations in effect at the time of establishment is not nonconforming; rather, it is illegal and subject to enforcement provisions of Chapter 18.100 SJCC. (Ord. 1-2016 §§ 5, 84(C); Ord. 15-2002 § 12; Ord. 2-1998 Exh. B § 8.12)

18.80.130 Project permit decisions.

A. Finality. All project permit decisions, and administrative determinations or interpretations issued under this code, shall be final unless appealed. (See SJCC 18.10.030(C).) Reconsideration may be allowed to the extent authorized by the County council in applicable rules of procedure.

B. Final decision on a project permit application shall be in writing and shall include findings and conclusions based on the record made before the decisionmaker (see Table 8.1), the SEPA threshold determination (Chapter 43.21C RCW) and the procedures for administrative appeal, if any. The notice of decision may be a copy of the report or decision on the project permit application.

C. The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested (in writing) notice of the decision.

D. Timing of Notice of Final Decision. The notice of decision shall be issued within 120 days after the County notifies the applicant that the application is complete, unless excluded in subsection (D)(1) of this section, and except for shoreline permit applications for limited utility extensions (RCW 90.58.140(13)(b)) or construction of a bulkhead or other measures to protect a single-family residence or its appurtenant structures from shoreline erosion. In those cases, the decision to grant or deny the permit shall be issued within 21 days of the last day of the comment period specified in SJCC 18.80.030(B)(2). The time frames set forth in this section shall apply to project permit applications filed on or after the effective date of this code.

1. Calculation of Time Periods for Issuance of Notice of Final Decision. In calculating the time for issuance of the notice of decision, the following periods shall be excluded:

a. Any period during which the applicant has been requested by the County to correct plans, perform required studies, or provide additional information. The excluded period shall be calculated from the date the County notifies the applicant of the need for additional information until the County determines the resubmitted information satisfies the request; and

b. Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW; and

c. The time during which an appeal is pending on (i) a SEPA determination of significance, or (ii) an appeal of any procedural determination made by the County when the County is a project proponent, or is funding a project, and chooses to conduct its review under SEPA, including any appeals of its procedural determinations, prior to submitting an application for a project permit (see WAC 197-11-680(3)(a)(vi)(B)); and

d. Any extension of time mutually agreed upon by the applicant and San Juan County.

2. The time limits established in this section do not apply if a project permit application:

a. Requires an amendment to the Comprehensive Plan or to this code;

b. Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200; or

c. Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete.

E. If the County is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. (Ord. 9-2013 § 31; Ord. 11-2011 § 9; Ord. 15-2002 § 13; Ord. 2-1998 Exh. B § 8.13)

18.80.140 Appeals.

A. Appeals – General. Appeals are open-record appeals (see definitions in Chapter 18.20 SJCC), and include:

1. Appeals to the hearing examiner of permits (development permits and/or project permits) granted or denied by the director (director is the decisionmaker);

2. Appeals to the hearing examiner of administrative determinations or interpretations made by the director (director is the decisionmaker);

3. SEPA appeals of project actions, as defined in WAC 197-11-704;

4. Appeals of consolidated matters (i.e., appeal of administrative determination consolidated with project permit application hearing);

5. A timely appeal of a code interpretation or decision made by the director or building official stays the effective date of such decision until the matter has been resolved at the County level. (See also SJCC 18.10.030 and RCW 36.70C.100.)

6. The appeal path for project permits is shown in Table 8.1. The appeal path for SEPA is shown in Table 8.3.

Table 8.3. SEPA Processing and Appeals.
	Threshold Determination		EIS
	DNS/MDNS	DS	DEIS	FEIS
Comment Period Prior to Action (days)	14	21	30	N/A
Administrative Appeal Period (days)	21	21	N/A	21
Consolidated Hearings	yes	no	N/A	yes
Open-Record Appeal Hearing	yes	yes	N/A	yes
Decisionmaker for Administrative Appeal	Hearing Examiner	Hearing Examiner	N/A	Hearing Examiner
Further Appeals	Superior Court (21 days per Chapter 36.70C RCW) or SHB (21 days per Chapter 90.58 RCW)	See RCW 43.21C.075; Superior Court, SHB: 21 days	N/A	Superior Court or SHB: 21 days

B. Open-Record Appeals. The San Juan County hearing examiner has authority to conduct open-record appeal hearings of the following decisions by the director and/or responsible official, and to affirm, reverse, modify, or remand the decision that is on appeal:

1. Boundary line modifications;

2. Simple land divisions;

3. Provisional use permits;

4. Short subdivisions;

5. Binding site plans (up to four lots);

6. Temporary use permits (Level II);

7. Discretionary use permits;

8. Administrative determinations or interpretations (see SJCC 18.10.030);

9. SEPA threshold determinations (DNS and DS) of project actions (see WAC 197-11-704);

10. EIS adequacy for project actions;

11. Development permits issued or approved by the director;

12. Consolidated matters where the director was the decisionmaker; and

13. Flood development permits issued or approved by the director.

C. Standing to Appeal. Appeals to the hearing examiner may be initiated by:

1. The applicant;

2. Any recipient of the notice of application (see SJCC 18.80.030);

3. Any person who submitted written comments to the director concerning the application; and

4. Any aggrieved person.

D. Time Period and Procedure for Filing Appeals.

1. Appeals to the hearing examiner must be filed (and appeal fees paid) within 21 calendar days following the date of the written decision being appealed; and

2. Appeals of a SEPA threshold determination or an FEIS must be filed within 21 days following the date of the threshold determination or FEIS.

3. All appeals shall be delivered to the director by mail, personal delivery, or fax, and received before 4:30 p.m. on the due date of the appeal period. Applicable appeal fees must be paid at the time of delivery to the director for the appeal to be accepted.

4. For the purposes of computing the time for filing an appeal, the date of the decision being appealed shall not be included. If the last day of the appeal period is a Saturday, Sunday, or a day excluded by RCW 1.16.050 as a legal holiday for the County, the filing must be completed on the next business day (RCW 36A.21.080).

5. Content of Appeal. Appeals must be in writing, be accompanied by an appeal fee, and contain the following information:

a. Appellant’s name, address and phone number;

b. Appellant’s statement describing standing to appeal (i.e., how he or she is affected by or interested in the decision);

c. Identification of the decision which is the subject of the appeal, including date of the decision being appealed;

d. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based;

e. The relief sought, including the specific nature and extent; and

f. A statement that the appellant has read the appeal and believes the contents to be true, signed by the appellant.

E. Notice of Hearing. The director shall give notice of the appeal hearing as provided in SJCC 18.80.030(C).

F. Decision Time and Notice.

1. The hearing examiner shall consider and render a written decision on all appeals. Such decision shall be issued within 60 days from the date the appeal is filed; provided, that the appeal contains all of the information specified in this section.

2. The parties to an appeal may agree to extend these time periods.

G. Consolidated Appeal Hearings.

1. All appeals of development permit or project permit decisions shall be considered together in a consolidated appeal hearing.

2. Appeals of environmental determinations under SEPA, except for an appeal of a determination of significance (DS), shall be consolidated with any open-record hearing (open-record predecision hearing or open-record appeal hearing) before the hearing examiner. (See also SJCC 18.80.020(B)(2), Consolidated Permit Processing, and SJCC 18.80.110.4, Shoreline preapplication meetings, permit exemption procedures, and vesting – Consolidated permit processing.)

H. Administrative SEPA Appeals of Project Actions.

1. The County establishes the following consolidated appeal procedures, under RCW 43.21C.075 and WAC 197-11-680, for administrative SEPA appeals of project actions as defined in WAC 197-11-704. The comment and appeal path is shown in Table 8.3.

a. Appeals of the intermediate steps under SEPA (e.g., lead agency determination, scoping, draft EIS adequacy) are not allowed;

b. An appeal to the hearing examiner on SEPA decisions is limited to review of a final threshold determination (determination of significance (DS) or nonsignificance (DNS/MDNS)) or the adequacy of a final environmental impact statement (FEIS);

c. As provided in WAC 197-11-680(3)(a)(iv), there shall be no more than one administrative appeal of a threshold determination or of the adequacy of an FEIS;

d. Except as provided in WAC 197-11-680(3)(a)(iv), administrative SEPA appeals authorized by this subsection shall be consolidated with the hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer, in conformance with WAC 197-11-680(3)(a)(v);

e. An appeal of a DS shall be heard and decided at a separate, open-record hearing to establish whether an applicant must provide an environmental impact statement. As provided in RCW 36.70B.060(6) and 43.21C.075, this open-record hearing shall not preclude a subsequent open-record hearing as provided by this code;

f. A timely appeal of a DS or other application identified in WAC 197-11-680(3)(a)(vi) shall stay the decision on a project permit application or development permit application until such time as the appeal has been resolved at the administrative level (i.e., decision by the hearing examiner) or the appeal has been withdrawn;

g. The determination of the responsible official shall carry substantial weight in any appeal proceeding;

h. The hearing examiner’s decision on a SEPA appeal is final unless a timely judicial appeal is filed.

2. Notice of the Date and Place for Commencing a Judicial SEPA Appeal.

a. Pursuant to WAC 197-11-680(5), notice of the date and place for commencing a SEPA judicial appeal shall be given if there is a time limit established by statute or ordinance for commencing an appeal of the permit decision. The notice shall include the time limit for commencing appeal of the underlying permit decision and SEPA issues, the statute or ordinance establishing the time limit, and where such a judicial appeal may be filed.

b. Notice is given by delivery of written notice to the applicant, all parties of record in any administrative appeal, and all persons who have requested notice of decisions with respect to the particular proposal along with any additional notice required by County code, such as SJCC 18.80.130.

c. Written notice containing the required information may be appended to the permit, decision documents, or SEPA compliance documents or may be given separately.

d. Official notices required by this section shall not be given prior to the County’s final decision on a proposal or appeal.

I. No Administrative SEPA Appeals of Nonproject Actions.

1. SEPA determinations for nonproject actions are not subject to administrative appeals; they may only be appealed in conjunction with the underlying action to superior court or state boards as provided by law.

2. Notice of the Date and Place for Commencing a Judicial SEPA Appeal.

a. Pursuant to WAC 197-11-680(5), notice of the date and place for commencing a SEPA judicial appeal must be given if there is a time limit established by statute or ordinance for commencing an appeal of the decision. The notice shall include the time limit for commencing appeal of the underlying permit decision and SEPA issues, and the statute or ordinance establishing the time limit; and where such a judicial appeal may be filed.

b. Such notice is given by delivery of written notice to the applicant, all parties of record in any administrative appeal, and all persons who have requested notice of decisions with respect to the particular proposal along with any additional notice required by County code, such as SJCC 18.80.130.

c. Written notice containing the required information may be appended to the permit, decision documents, SEPA compliance documents, or may be given separately.

d. Official notices required by this section shall not be given prior to the County’s final decision on a proposal or appeal.

J. Judicial and State Board Appeals. The time limits, methods, procedures and criteria for review of land use decisions by the courts or by a quasi-judicial body created by state law, such as the Shorelines Hearings Board or the Growth Management Hearings Board, are provided by state law. See, for example, Chapter 36.70C RCW (21 days; appeal to superior court). (Ord. 1-2020 § 5; Ord. 13-2018 § 13; Ord. 9-2013 § 32; Ord. 11-2011 § 10; Ord. 7-2005 §§ 19, 20; Ord. 15-2002 § 14; Ord. 14-2000 § 7(QQQ); Ord. 11-2000 § 7; Ord. 2-1998 Exh. B § 8.14)

18.80.150 Road vacation procedures.

A. County road vacations are subject to procedures specified in state law at Chapter 36.87 RCW and the policies in the Transportation Element 6 of the Comprehensive Plan. Vacations of County road ends shall not be permitted when prohibited under RCW 36.87.130.

B. Applications for vacations of County roads, road rights-of-way, or any portion of one shall meet the requirements of SJCC 18.60.090(C).

C. Applications for vacations of County roads may be processed pursuant to SJCC 18.70.080(B) only when such road vacations are proposed in conjunction with the vacation of the subdivision. Vacation of private roads within recorded subdivisions is subject to plat vacation procedures in RCW 58.17.212. (Ord. 15-2002 § 15; Ord. 2-1998 Exh. B § 8.15)

18.80.160 Procedures for planned unit developments.

A. Purpose and Applicability. Planned unit developments (PUDs) under the development standards and requirements of SJCC 18.60.220 are subject to this permit review process.

B. Application Submittal, Processing and Approval. PUD processing and approval shall occur as part of, and through the same procedures as, subdivision or binding site plan application for the project.

C. Additional Application Requirements.

1. In addition to or as part of the materials being prepared to meet the requirements for subdivisions or binding site plans in Chapter 18.70 SJCC, the applicant shall prepare such other illustrations, diagrams, calculations, or descriptive materials as are needed to meet the requirements of SJCC 18.60.220.

2. Project information shall include:

a. A statement that discusses the general design concept of the PUD, and what special purposes (e.g., senior housing; community and environmental purposes), if any, the PUD is intended to meet or fulfill;

b. A description and layout of all proposed developments, including the location, use and size of all proposed structures, and the proposed development schedule;

c. A statement of the number of dwelling units, number of affordable units and their type, average density, use restrictions, information on how affordability will be assured, and other pertinent data;

d. A statement of the percentage and design approach of open space;

e. A calculation of estimated new demands on capital facilities and services, and a demonstration that the development has met the requirements of SJCC 18.60.200 and 18.60.220(D) (1) or 18.60.200(E). This shall include either:

i. Arranging for sufficient water and sewer service to meet the additional demands of the development; or

ii. Demonstrating that such service is not currently available and that funding of capital facilities and service improvements is less appropriate than other alternatives; and

f. A demonstration that the development contains sufficient infrastructure to meet the requirements of this code for stormwater management.

D. Notice. Notice of application shall be provided by the same notice as the subdivision or binding site plan for the project. Notice of public hearing, if required by the subdivision or binding site plan procedures, shall be provided by the same notice as the subdivision or binding site plan for the project.

E. Decisionmaking Authority. The decisionmaking authority for the subdivision or binding site plan for the project shall have the authority to approve, approve with modifications, or disapprove the planned unit development.

F. Criteria for Approval. The PUD shall be approved only if it:

1. Meets the conditions and requirements of SJCC 18.60.220 and other applicable standards in this and other County codes; and complies with the policies and requirements of the Shoreline Master Program, the State Environmental Policy Act, and the Comprehensive Plan.

2. Satisfactorily addresses the comments of the reviewing authorities, and receives the necessary approvals, and is in the public interest.

G. Administrative Appeals. An administrative appeal may be filed if authorized by SJCC 18.80.140. (Ord. 11-2011 § 11; Ord. 15-2002 § 16; Ord. 11-2000 § 7; Ord. 2-1998 Exh. B § 8.16)

18.80.170 Binding site plan procedures.

A. Purpose and Applicability. Binding site plans under the standards and requirements of SJCC 18.70.090 are subject to this permit review process.

B. Application Requirements. Application requirements for binding site plans are as specified for land divisions in SJCC 18.70.050(C) except that:

1. References to “preliminary plat” and “subdivision” shall be considered as references to “binding site plan map” and “binding site plan,” respectively;

2. Phasing is not allowed; and

3. The following requirement is added to those specified for the delineation of proposed conditions in SJCC 18.70.050(C)(2)(m): location of proposed structures, indicating for each the floor area in square feet, and the proposed use.

C. Notice of Application and Public Hearing.

1. Applications for binding site plans of four or fewer lots are subject to notice requirements of short subdivisions by SJCC 18.70.050(B)(1). No public hearing is required.

2. Applications for binding site plans of more than four lots are subject to the notice requirements of subdivisions by SJCC 18.70.050 (B)(2). A public hearing is required.

D. Preliminary Binding Site Plans.

1. Administrative Authority and Responsibility. The provisions of SJCC 18.70.050(D) shall apply such that binding site plan applications for four or fewer lots are equivalent to short subdivision applications, and binding site plan applications for more than four lots are equivalent to long subdivisions for procedural purposes.

2. Decisionmaking Authority. The provisions of SJCC 18.70.050(E) shall apply such that binding site plan applications for four or fewer lots are equivalent to short subdivision applications, and binding site plan applications for more than four lots are equivalent to long subdivisions for procedural purposes.

3. Criteria for Approval of Preliminary Binding Site Plans. The preliminary binding site plan shall be approved only if all of the following are met:

a. The application meets the requirements in SJCC 18.70.090, the applicable standards in Chapters 18.40, 18.50 and 18.60 SJCC, and complies with the policies and requirements of Chapter 58.17 RCW, the Shoreline Master Program, the State Environmental Policy Act, and the Comprehensive Plan;

b. The associated planned unit development application, if required, is approved, and action has been completed on any shoreline permit that is required for proposed improvements;

c. The application satisfactorily addresses the comments of the reviewing authorities and is in the public interest;

d. Requests for revisions which are not made in response to staff review may require a new application if the director finds the revisions to be substantial and material; and

e. The application meets the time limits and requirements for approval, revision, alteration, and extension of SJCC 18.70.050(G), 18.70.080 (A) and 18.70.110.

4. Expiration. Preliminary approval of a binding site plan shall expire after a period of 60 months.

5. Administrative Appeals. An administrative appeal may be filed if authorized by SJCC 18.80.140.

E. Final Binding Site Plans.

1. Administrative Authority and Responsibility. The provisions of SJCC 18.70.070 shall apply such that binding site plan applications for four or fewer lots are equivalent to short subdivision applications, and binding site plan applications for more than four lots are equivalent to long subdivisions for procedural purposes.

2. Decisionmaking Authority. The provisions of SJCC 18.70.070 shall apply such that binding site plan applications for four or fewer lots are equivalent to short subdivision applications, and binding site plan applications for more than four lots are equivalent to long subdivisions for procedural purposes.

3. Criteria for Approval of Final Binding Site Plans. The final binding site plan shall be approved only if:

a. The application meets the conditions and requirements of preliminary and final approval in SJCC 18.70.090, 18.70.110, and 18.70.120, and the applicable standards in Chapters 18.40, 18.50 and 18.60 SJCC, and complies with the policies and requirements of Chapter 58.17 RCW, the Shoreline Master Program, the State Environmental Policy Act, and the Comprehensive Plan.

b. The application satisfactorily addresses the comments of the reviewing authorities, receives the necessary approvals, and is in the public interest.

c. Time Limits. The application meets the time limits and requirements for approval, revision, alteration, and extension of SJCC 18.70.050(G), 18.70.080(A) and 18.70.110.

4. Administrative Appeals. An administrative appeal may be filed if authorized by SJCC 18.80.140.

5. Recording. Recording of final binding site plans with the County auditor is required.

a. General Provisions.

i. Payment of Delinquent Taxes. Any and all delinquent taxes on the subject property must be paid in advance of recording.

ii. Recording Map and Legal Descriptions. The final binding site plan map and legal descriptions shall be prepared in accordance with the requirements for final subdivisions in Chapter 332-130 WAC, Chapter 58.09 RCW and Chapter 18.70 SJCC and recorded with the County auditor as required by this code.

b. The final binding site plan shall be prepared in accordance with the survey and drawing standards of SJCC 18.70.090.

c. After approval of a binding site plan for land, all or portions of which will be subject to the provisions of Chapter 64.32 or 64.34 RCW (Condominiums), the applicant shall record the approved binding site plan with a record of survey (except for the provisions of RCW 59.09.090(1)(d)(iv) (resurvey of recorded plats within tolerance)) as one recorded document complying with the requirements of SJCC 18.70.090 labeled as “Binding Site Plan.” Before recording, the applicant shall complete all required improvements.

6. Alteration of Approved Binding Site Plans. Alterations of approved binding site plans shall be processed as per SJCC 18.70.080(A). References to “preliminary plat” and “subdivision” shall be considered as references to “binding site plan map” and “binding site plan,” respectively.

7. Vacation of Recorded Binding Site Plans.

a. Vacation of a binding site plan shall be accomplished by following the same procedure and satisfying the same laws, rules and conditions as required for a new binding site application. A binding site plan shall be vacated in its entirety only.

b. If a building permit or other development permit which accompanies a binding site plan expires without construction, then the binding site plan shall be considered vacated unless the director determines that the expiration of such development permit is consistent with the approved binding site plan. (Ord. 11-2011 § 12; Ord. 15-2002 § 17; Ord. 11-2000 § 7; Ord. 2-1998 Exh. B § 8.17)

18.80.180 Procedures for rural residential cluster developments.

A. Purpose and Applicability. Rural residential cluster development under the standards and requirements of SJCC 18.60.230 is subject to this permit review process.

B. Application Procedures if Site is to Be Divided, or to Be Subject to a Binding Site Plan. If the project site is not divided appropriately for the lease or sale of the units or development of the conservation tract required by SJCC 18.70.060(B) (10), the site shall either be subdivided or subject to a binding site plan, in accordance with the procedures and requirements of Chapter 18.70 SJCC. The information required by SJCC 18.80.030 for rural residential cluster development shall be included as an attachment to the subdivision or binding site plan application, in the form required by the administrator. The approval of a rural residential cluster shall occur as part of the procedures in Chapter 18.70 SJCC for processing and approving the subdivision or binding site plan application.

C. Application Procedures without Land Division. If no land division or binding site plan is required (as in the case where existing parcels are to be developed as a rural residential cluster development with no change in boundaries, or if all units are to be rented and are in a single structure), the applicant for a rural residential cluster development shall submit a project permit application for the appropriate land use category as indicated by Tables 18.30.030 and 18.30.040. Such permit shall be processed as provided for discretionary use permits in SJCC 18.80.090 or conditional use permits in SJCC 18.80.100 indicated in Tables 18.30.030 and 18.30.040 as appropriate to the district in which the project is located, and as determined by the administrator.

D. Decisionmaking Authority. The decisionmaking authority shall be the same as required by the appropriate procedure required by Chapter 18.70 SJCC, SJCC 18.80.090 or 18.80.100.

E. Criteria for Approval. An application for a rural residential cluster development shall be approved only if:

1. The project meets all requirements of SJCC 18.60.230 for a rural residential cluster development;

2. The project meets all the requirements for approval of the subdivision or binding site plan if applicable; and

3. The project meets all the requirements of SJCC 18.80.090 for approval of the discretionary use permit or SJCC 18.80.100 for approval of the conditional use permit as applicable. (Ord. 15-2002 § 18; Ord. 11-2000 § 7; Ord. 2-1998 Exh. B § 8.18)

18.80.190 Essential public facility conditional use permits.

A. Purpose and Applicability. Essential public facility conditional use permits allow for the approval of essential public facilities that do not meet one or more of the development standards included in SJCC Title 16 or 18, or that are nonconforming and authorized for expansion pursuant to SJCC 18.30.055(D). An essential public facility conditional use permit may not authorize any waiver of or departure from County regulations regarding critical areas or resource lands. For facilities authorized or required to obtain an essential public facilities conditional use permit, no standard conditional use permit is required for the use.

B. Notice and Public Hearing. Notice of application and of public hearing is required in accordance with the procedures in SJCC 18.80.030. An open-record predecision hearing is required.

C. Decisionmaking Authority. The hearing examiner has the authority to approve or deny essential public facility conditional use permits and to impose conditions of approval.

D. Essential Public Facility Conditional Use Permits – Criteria for Approval. An application for an essential public facility conditional use permit shall be approved if the following criteria are met:

1. The proposal includes mitigation of adverse impacts on existing land uses and the natural and rural environment.

2. The location, size, and height of structures and screening vegetation shall not unreasonably interfere with the allowable development or use of neighboring properties.

3. Owners of property located within 1,000 feet of the subject parcel were offered an opportunity to participate in developing measures to mitigate negative impacts.

4. The facility will comply with the public health, safety and environmental protection requirements of SJCC Titles 16 and 18 related to access, fire protection, water, sewage disposal, stormwater management, containment of chemicals, resource lands, and critical areas.

5. To the extent possible the facility will comply with other requirements and development standards set forth in SJCC Title 16 and 18. Where a modification to a specific standard is proposed, it may be approved provided the new or expanded facility is necessary to adequately serve the public, the need for relief from the standard is justified, and it is not reasonable for the standard to be adhered to.

6. Unless the operation warrants a rural location, government offices with more than six employees shall be located within urban growth areas, village districts or in locations with existing water and sewer service.

7. If located on San Juan Island, new public schools and government administrative offices should be located only within the town of Friday Harbor, the UGA, or another area where adequate water supply and sewage disposal exist without new extensions of urban services.

8. If located on Lopez or Orcas Island, new public schools and government administrative offices should be located within an urban growth area, a village district, or in another area where adequate water supply and sewage disposal exist without new extensions of urban services.

9. Other facilities should not be located outside an urban growth area or village district unless their operation warrants a rural location.

10. If located on San Juan Island, the applicant explored the possibility of sharing or co-locating facilities which could serve both the County and the town of Friday Harbor either on the proposed site or at a site located in the town.

11. The proposal does not include the siting of an incompatible use adjacent to a general aviation airport operated for the benefit of the general public.

E. Term. Unless a shorter time period is specified in permit conditions, development authorized through an EPF conditional use permit shall be substantially completed within five years from the date of permit approval or the permit shall become null and void. An extension of up to one year may be granted by the decisionmaking authority if the permittee demonstrates good cause for an extension.

F. Appeals. Hearing examiner decisions on EPF conditional use permits are final decisions that may be appealed in accordance with the procedures specified in SJCC 18.80.140. (Ord. 10-2011 § 3; Ord. 2-2010 § 4)

18.80.200 Financial guarantees.

A. For some types of development, County codes require a financial guarantee to ensure completion of required improvements. This section outlines the requirements associated with these financial guarantees. In accordance with RCW 36.32.590 this section does not apply to any state agency or unit of local government.

B. San Juan County accepts the following types of financial guarantees:

1. Irrevocable letter of credit from a bank or credit union.

2. Cash deposit with the County.

3. Cash deposit, for the benefit of the County, into an escrow account managed by an independent financial institution.

4. Surety bond.

C. Financial guarantees shall cover 115 percent of the expected cost of the work.

D. The expiration date of the guarantee shall be at least 30 days after the expected final approval date for the project.

E. Project cost estimates shall be prepared by the qualified professional who prepares the associated plans.

F. Failure to complete work or correct deficiencies in accordance with a financial guarantee agreement and approved plans shall be cause for the County to draw on the financial guarantee to stabilize the site and/or complete the work. In addition to direct costs for the work, the County may withdraw funds to cover administrative costs. Prior to taking action, the County shall give the property owner written notice by both first class mail and certified mail.

G. Release of Financial Guarantee. Financial guarantees shall not be released until the actions guaranteed by the agreement have been completed and demonstrated to function. When completed, the qualified professional and property owner shall provide the department with written approval of the project, and the department will conduct an inspection to verify that it has been completed according to approved plans. The time period for completion may be extended by written agreement of the applicant and director. If it is anticipated that improvements will be completed over a period of time, separate financial guarantees should be provided so they may be released as components of the project are approved. Partial releases from a single financial guarantee are not permitted.

H. Signatures of property owners and contractors shall be notarized.

I. Financial Guarantee Agreements. A financial guarantee agreement, signed by the property owner and approved by the County, shall accompany each financial guarantee. Required elements of financial guarantee agreements include:

1. Name, mailing address, and phone number of the property owner. If someone other than the property owner provides the financial guarantee (e.g., developer, contractor), their name, mailing address and phone number (in addition to that of the property owner).

2. Description of the project location including section, township, range and address (if available).

3. Tax parcel number(s).

4. Size of parcel/project in acres.

5. Reference to improvements being completed in accordance with the San Juan County Code and approved plans on file with the department.

6. Permit number.

7. Exhibit A – Description of required improvements and cost estimate for completion of the improvements provided by a qualified professional.

8. A statement that the applicant has established a financial guarantee to ensure completion of required improvements in the amount of 115 percent of the estimated cost, with the amount listed.

9. Type of guarantee.

10. Exhibit B – Original financial guarantee (for cash deposit, a copy of the check and receipt).

11. Exhibit C – A completion schedule for the required improvements. Anticipated completion date for the project must be at least 30 days before expiration of the financial guarantee.

12. A statement that this agreement is considered a contract between the parties.

13. A statement that if the County is forced to take action under this agreement, the obligation of the property owner to complete the required work is not discharged.

14. A statement that, after the improvements are completed and demonstrated to function, the qualified professional and property owner will provide written notice of completion to the department. After final inspection by the department and confirmation that work was completed and the improvements are functioning in accordance with approved plans, the County shall release the financial guarantee.

15. A statement acknowledging that partial releases are not permitted. (Note: If improvements will be completed in phases, the applicant should provide separate financial guarantees with separate agreements.)

16. A statement that if the required improvements are not completed and approved by the qualified professional and property owner prior to the established completion date, or within the time allowed by a written extension granted by the director, the County may, after providing written notice by first class mail, withdraw the necessary funds from the financial guarantee and complete the improvements or an equivalent project. In addition to contracting or other costs to complete the work, the County may also withdraw funds to cover administrative costs. Any remaining funds after completion of improvements shall be returned to the party that provided the financial guarantee.

17. Process for renegotiating the agreement, including an option for the property owner to extend the agreement and the time frame for the project to allow for additional monitoring and/or for additional work to ensure the proper function of the improvement.

18. Process for transferring the agreement, with County approval, to a property owner or contractor’s successor.

19. Governing laws shall be the laws of the state of Washington. The venue for any dispute shall be San Juan County.

20. Notarized signature block for the property owner(s).

21. If the financial guarantee is provided by someone other than the property owner (e.g., contractor), notarized signature block for that party, in addition to that for the property owner.

22. Signature block for approval by the County manager. (Ord. 26-2012 § 26)