Chapter 15.115
Land Use Actions and Procedures
Sections:
15.115.020 Conditional Use Permit (CUP)
15.115.030 Development Agreements
15.115.040 Essential Public Facilities
15.115.050 Zone Reclassification (Rezone)
15.115.055 Preliminary Site Plan
15.115.060 Hearing Examiner Development Review Process
15.115.005 Purpose
The purposes of this chapter are to allow for consistent evaluation of land use applications and any other decisions considered by the Hearing Examiner or Director pursuant to the applicable ordinances and authority.
The criteria in this chapter are intended to protect nearby properties from the possible effects of land use requests subject to discretionary land use permits by:
A. Providing clear criteria on which to base a decision;
B. Recognizing the effects of unique circumstances upon the development potential of a property;
C. Avoiding the granting of special privileges;
D. Avoiding development which may be unnecessarily detrimental to neighboring properties;
E. Requiring that the design, scope and intensity of development is in keeping with the physical aspects of a site and adopted land use policies for the area; and
F. Providing criteria which emphasize protection of the general character of neighborhoods. (Ord. 21-1008 § 7; Ord. 15-1018 § 1)
15.115.010 Variance
A. A variance is a request for an exception to the development standards of the code because of special circumstances (i.e., size, shape, topography of lot) when the strict application of the code deprives such property of privileges enjoyed by other similar properties. A variance may be granted when a hardship is proven. A variance cannot be used for relief from types of uses permitted within zone classifications.
B. The applicant must show that the proposed development issue requiring a variance meets all of the following criteria for approval, except as specified in subsection (D) of this section:
1. The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application was filed is located; and
2. That such variance is necessary, because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and
3. That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated; and
4. That the special circumstances necessitating the variance have not resulted from any action of the applicant; and
5. That the requested variance will not create a use not generally permitted within the zone in which the subject property is located.
C. The requested variance is decided by the City’s Hearing Examiner through a public hearing process, except in cases where the requested change involves less than twenty percent (20%) variance to a standard. In these cases, the variance may be decided by the Director, provided the following criteria are met in addition to those in subsection (B) of this section:
1. The variance does not reasonably involve a life/safety issue nor does it reasonably involve damage to or loss of property of any person or entity.
2. The person or entity requesting the requirements change shall agree to waive all rights to pursue a variance or other process to seek an alternative to the requirements of the City Code; provided, that if no change in the requirements of the City Code is granted to such person or entity, the person or entity would be entitled to pursue a variance or other available procedure in the normal course.
D. A variance from the standards for macro facilities regarding height, setbacks, aesthetics (including concealment), equipment enclosures and the dimensions of freestanding poles specified in Chapter 15.480 SMC, Wireless Communication Facilities, may be granted by the Hearing Examiner only in situations where all of the following criteria are met. These criteria shall apply in lieu of those specified in subsection (B) of this section.
1. The specified standard would have the effect of prohibiting the provision of wireless service;
2. The variance will not harm the public welfare of adjacent properties;
3. The requested variance will not create a use not generally permitted within the zone classification in which the subject property is located;
4. The variance is the minimum necessary to grant relief to the applicant;
5. Any request for a variance from the standards regarding height, aesthetics, equipment enclosures and dimensions of freestanding poles specified in Chapter 15.480 SMC, Wireless Communication Facilities, shall include a written report that specifies:
a. The necessity of the site to provide the wireless service; and
b. The necessity of the requested variance as the minimum necessary to meet the service provider’s technical need; and
c. An assessment of all feasible alternatives that could meet the service provider’s technical need. The alternatives assessment shall include collocations and alternative sites. (Ord. 20-1026 § 6; Ord. 15-1018 § 1)
15.115.020 Conditional Use Permit (CUP)
A. Major Conditional Use Permit. A major conditional use permit (CUP) is a permit granted by the Hearing Examiner, which sets special conditions regarding a use in a zone where the use is not permitted outright due to the nature of impacts created by the use.
B. Minor Conditional Use Permit. A minor conditional use permit may be granted by the Director to allow specified uses as listed under subsection (E) of this section.
C. The CUP process is a means of imposing special conditions and requirements on development, so that the compatibility of uses shall be maintained considering other existing and potential uses within the general area where the conditional use is proposed. Conditions imposed on a CUP will reasonably assure that a nuisance or hazard to life or property will not occur. The CUP process is not a means to reduce the requirements of a zone classification where the conditional use is proposed.
D. The applicant must show that the proposed development satisfies all of the following criteria for approval by the Hearing Examiner or Director:
1. The proposed use is listed as a conditional use under SMC 15.205.040, Use Chart;
2. The site is adequate in size and shape for the proposed project and the use conforms to the general character of the neighborhood;
3. The unique character of topography, arterial streets and adjacent land use complement the proposed conditional use;
4. The conditional use would not be detrimental to surrounding land use;
5. Modifications to standards are limited to those which will mitigate impacts in a manner equal to or greater than the standards of this code;
6. The conditional use is such that pedestrian and vehicular traffic associated with the use will not be hazardous or conflict with existing and anticipated traffic in the neighborhood; and
7. The conditional use will be supported by adequate public facilities or services, and will not adversely affect public services to the surrounding area unless conditions can be established to mitigate adverse impacts.
E. A minor conditional use permit may be granted by the Director only in the following situations:
1. The minor conditional use must conform to the criteria as set forth in this section and all other requirements of this code.
2. To allow the expansion of an existing, legal conditional use which has previously been permitted within the zone classification, provided the requested expansion of the existing conditional use is either:
a. No greater than twenty percent (20%) of the gross floor area of the existing conditional use; and
b. Exempt from environmental review under the State Environmental Policy Act (SEPA).
3. To allow location of a new concealed freestanding macro facility in a low intensity zone, subject to the requirements set forth in Chapter 15.480 SMC, Wireless Communication Facilities.
4. To allow subsidiary uses in:
a. School facilities or City facilities within the residential zones and Park zone; and
b. Religious use facilities in residential zones.
See criteria in Chapter 15.470 SMC, Subsidiary Uses.
5. To allow location of permanent supportive housing and transitional housing consistent with Chapter 15.205 SMC, Land Use Chart, and subject to the requirements set forth in SMC 15.465.350, Supportive Housing Facilities Standards. (Ord. 21-1031 § 12; Ord. 21-1008 § 8; Ord. 20-1026 § 7; Ord. 15-1018 § 1)
15.115.030 Development Agreements
A. A person or entity having ownership or control of real property within the City may file an application for a development agreement with the Department, solely and exclusively on the current form approved by the said Department, together with the filing fee set forth in the current edition of the City’s Fee Schedule as adopted by resolution of the City Council.
B. Terms of the proposed development agreement shall be subject to the preapplication meeting process set forth at SMC 16A.05.020, Preapplication Meetings, and such other provisions of SMC Title 16A, Development Review Code, as may be deemed appropriate by the City.
C. The Director is authorized, but not required, to negotiate acceptable terms and conditions of the proposed development agreement with due regard for the following criteria:
1. The development agreement conforms to the existing Comprehensive Plan policies.
2. The terms of the development agreement are generally consistent with the development regulations of the City then in effect.
3. Appropriate project or proposal elements such as permitted uses, residential densities, and nonresidential densities and intensities or structure sizes are adequately provided, to include evidence that the site is adequate in size and shape for the proposed project or use, conforms to the general character of the neighborhood, and would be compatible with adjacent land uses.
4. Appropriate provisions are made for the amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of State law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or dedications.
5. Adequate mitigation measures, development conditions, and mitigation requirements under Chapter 43.21C RCW are provided.
6. Adequate and appropriate design standards such as maximum heights, setbacks, drainage and water quality requirements, landscaping, and other development features are provided.
7. If applicable, targets and requirements regarding affordable housing are addressed.
8. Provisions are sufficient to assure requirements of parks and open space preservation.
9. Interim uses and phasing of development and construction is appropriately provided. In the case of an interim use of a parcel of property, deferments or departures from development regulations may be allowed without providing a demonstrated benefit to the City; provided, that any departures or deferments to the code requested for a final use of the property shall comply with criteria No. 11 below. The agreement shall clearly state the conditions under which the interim use shall be converted to a permanent use within a stated time period and the penalties for noncompliance if the interim use is not converted to the permanent use in the stated period of time.
10. Where a phased development agreement is proposed, a site plan shall be provided and shall clearly show the proposed interim and final use subject to the agreement.
11. In the case of a development agreement where the proposed use would be the final use of the property, it shall be clearly documented that any departures to the standards of the code, requested by the applicant, are in the judgment of the City, offset by providing a benefit to the City of equal or greater value relative to the departure requested. In no case shall a departure to the code be granted if no benefit to the City is proposed in turn by the applicant.
12. Conditions are set forth providing for review procedures and standards for implementing decisions.
13. A build-out or vesting period for applicable standards is provided.
14. Any other appropriate development requirements or procedures necessary to the specific project or proposal are adequately addressed.
15. If appropriate, and if the applicant is to fund or provide public facilities, the development agreement shall contain appropriate provisions for reimbursement over time to the applicant.
16. Appropriate statutory authority exists for any involuntary obligation of the applicant to fund or provide services, infrastructure, impact fees, inspection fees, dedications, or other service or financial contributions.
D. If the Director deems that an acceptable development agreement has been negotiated and recommends the same for consideration, the City Council shall hold a public hearing and then may take final action, by resolution, to authorize entry into the development agreement. In addition, the Council may continue the hearing for the purpose of clarifying issues, or obtaining additional information, facts, or documentary evidence.
E. The decision of the Council shall be final immediately upon adoption of a resolution authorizing or rejecting the development agreement.
F. Following approval of a development agreement by the Council, and execution of the same, the development agreement shall be recorded with the King County Recorder.
G. Because a development agreement is not necessary to any given project or use of real property under the existing comprehensive plan and development regulations in effect at the time of making application, approval of a development agreement is wholly discretionary and any action taken by the City Council is legislative only, and not quasi-judicial. (Ord. 21-1008 § 9; Ord. 15-1018 § 1)
15.115.040 Essential Public Facilities
A. Purpose. The purpose of this section is to establish a formal process for identifying and siting of essential public facilities (EPFs).
B. Included Essential Public Facilities. EPFs subject to this section include, but are not limited to, those facilities identified in the EPF definition (SMC 15.105.050), the Seattle-Tacoma International Airport, Interstate 5, State Route 509 (both current and proposed extensions), State Route 518, the Federal Detention Center, the King County Bow Lake Solid Waste Transfer Station, and the Sound Transit’s “LINK” Light Rail System. Reentry centers are not subject to the CUP-EPF review procedure and are permitted as a major conditional use, subject to the criteria in SMC 15.115.020(D), Conditional Use Permit (CUP).
C. Threshold Review. During or within forty-five (45) days subsequent to the mandatory preapplication meeting required by SMC 16A.05.020, Preapplication Meetings, the Director shall make a threshold determination, and advise the potential applicant in writing of such determination, whether the proposed project is an EPF and, if so, whether it is difficult to site. In making said determinations, the Director shall broadly and liberally apply the definition of an EPF in consideration of the full range of proposed and potential services to be provided to the public, whether provided directly by, funded by, or contracted for by a governmental agency, or provided by a private entity or entities subject to public service obligations. The determination of whether an EPF will be difficult to site shall be made by the Director upon known or reasonably perceived and articulable facts. Proposed projects determined not to be EPFs, and proposed projects determined to be EPFs but also determined to be not difficult of siting, shall be reviewed and processed as any other similar project pursuant to the City Development Code without regard to this section.
These requirements shall not be construed to limit the appropriate use of schools and other facilities for emergency shelters in disaster situations.
D. Applications for EPF Projects. All proposed projects determined to be EPFs and determined to be difficult to site or expand shall be reviewed and conditioned in accordance with all requirements of this code and, in addition, with the conditional use permit procedure, herein referred to as the CUP-EPF review procedure. All applications shall contain the following information:
1. A detailed written description of the proposed and potential public services to be provided, the source or sources of funding, and identification of any applicable public regulatory agencies;
2. A written statement of the need, in statistical or narrative form, for the proposed project currently and over the following ten (10) year period;
3. An inventory of known, existing or proposed facilities, by name and address, within King County, or within the region, serving the same or similar needs as the proposed project;
4. An explanation of the need and suitability for the proposed facility in the proposed City location(s);
5. Information regarding the number of jurisdictions affected or served by the proposed EPF;
6. An analysis of the environmental, social, economic, financial and infrastructure impacts of the proposed EPF, including an assessment of the proportionate financial impacts on affected jurisdictions, and consideration of copies of agreements which allocate the financial burdens of the proposed project on the City and other jurisdictions;
7. An analysis of the proposal’s consistency with the City of SeaTac Comprehensive Plan and development regulations, and plans and policies of other affected jurisdictions, including but not limited to the King County Countywide Planning Policies;
8. Documentation of public involvement efforts to date, including public and agency comments received, and plans for future public participation;
9. Such information as requested by staff to complete the preliminary analysis and/or information to assist the Ad Hoc Committee, City staffs and City Council in making the final determination on the CUP-EPF.
E. CUP-EPF Review Process. All EPFs shall be subject to the following CUP-EPF review procedure:
1. Project Notification. The applicant, after a preapplication meeting, shall notify the City as soon as possible of intent to submit a CUP-EPF review application. If the applicant does not notify the City of a pending EPF review application, the City may make an initial determination of whether the proposed project is subject to CUP-EPF review, and shall notify the project proponent, in writing, of the City’s determination.
2. Environmental Review. The EPF project shall comply with all applicable SEPA/NEPA requirements and the proponent shall mitigate identified environmental impacts as conditions of CUP-EPF approval.
3. Formation of Ad Hoc Committee. The City Council shall establish an Ad Hoc Committee by appointing up to seven (7) members and the Planning Commission appointing one (1) member, for each CUP-EPF application. The Ad Hoc Committee may include representatives of the Planning Commission or other persons with detailed knowledge of City land use or transportation issues. The Ad Hoc Committee shall be appointed by the City Council within seventy-five (75) days of the determination by the Director that the proposed project is an EPF, pursuant to subsection (C) of this section.
a. The City Council will establish a time frame of not more than sixty (60) days, unless a longer time frame is necessary due to an EPF project timeline, in which the Ad Hoc Committee must review, consult and issue recommended conditions for the EPF. This time frame may be extended only by the authority of the City Council, and shall not be extended more than a maximum of three (3) such time periods, unless the applicant agrees that more time is needed.
b. Prior to accepting an appointment on the Ad Hoc Committee, an appointee must divulge any vested interest in any properties or businesses, the value of which could be substantially affected by the committee’s recommendations, if any.
4. Ad Hoc Committee Review and Coordination. The Ad Hoc Committee shall make recommendations to the designated hearing body regarding the appropriate conditions to mitigate the impacts of the proposed EPF under the authority of the City’s SEPA regulations, Comprehensive Plan and development regulations. City staff shall prepare an analysis of the CUP-EPF application for use by the Ad Hoc Committee. The Ad Hoc Committee shall review the staff analysis of the proposed EPF project and prepare written recommendations on each of the following:
a. Any criteria identified in subsection (F) of this section that was reviewed by the Ad Hoc Committee; and
b. Whether the project should include a zoning overlay; and
c. Any recommended conditions for mitigating the impacts of the proposed EPF under the authority of the City’s SEPA ordinances, Comprehensive Plan and development regulations.
The Ad Hoc Committee shall present its draft recommendations to the Planning Commission and, upon receiving input of the Planning Commission, shall prepare final written recommendations to the designated hearing body.
5. Designated Hearing Body. The Hearing Examiner shall hear an essential public facility application. However, the City Council may determine that the application should be heard by the City Council, and in that case, the City Council will be the designated hearing body. The City Council’s determination should be based on the following criteria:
a. Size of project;
b. Area of City affected by proposed project;
c. Environmental impact on sensitive areas;
d. Timing of project.
6. Staff Report. The Department shall prepare a staff report, which shall include Planning Commission comments, as well as the final recommendations of the Ad Hoc Committee. The staff report shall also include an evaluation of the consistency of the proposed EPF, as recommended by the Ad Hoc Committee, with the City’s adopted Comprehensive Plan and development regulations, and shall include proposed findings, proposed conclusions, and proposed recommendations for disposition of the proposed CUP-EPF to the designated hearing body for a public hearing.
7. Public Hearing and Decision. The designated hearing body shall hold a public hearing pursuant to SMC 16A.13.020, Procedure for Public Hearing, to make findings and issue a decision. The notice of such public hearing shall be consistent with SMC 16A.13.010, Notice of Public Hearing. A final decision shall be rendered by the designated hearing body in accordance with Chapter 16A.15 SMC, Notice of Decision.
F. Ad Hoc Committee Review Criteria. In making its recommendations the Ad Hoc Committee should consider the following:
1. Whether the proposed site is adequate in size and shape for the proposed project and the use conforms, or can aesthetically conform, to the general character of the neighborhood.
2. The proportionate financial burdens of the proposed EPF on the City and other affected jurisdictions, and whether they are reasonably mitigated as provided in an inter-jurisdictional agreement, or by other means.
3. Whether the proposed EPF is compatible with the following:
a. Availability and physical constraints of land.
b. Compatibility with adjacent and nearby land uses.
c. Mitigation of likely adverse environmental impacts, including but not limited to erosion, sensitive areas, noise, odor, traffic, and air and water quality.
d. Basic infrastructure standards, such as vehicular traffic, and the availability of necessary utilities and services.
e. The City of SeaTac’s Comprehensive Plan, development regulations, and SEPA regulations.
f. Any existing and applicable City inter-jurisdictional agreements.
g. Siting of secure community transition facilities must be in accordance with the siting criteria of Chapter 71.09 RCW, and regulations adopted pursuant thereto. In addition, no secure community transition facility shall be sited closer than three hundred thirty (330) feet from any residentially zoned property.
G. Designated Hearing Body Review Criteria. The designated hearing body, giving substantial weight to the recommendations of the Ad Hoc Committee and the staff report, shall review the application under the following criteria:
1. Whether the proposed action is consistent with the criteria under subsection (F) of this section;
2. Whether modifications to recommended conditions or restrictions, if any, are needed to mitigate impacts in a manner which meets the standards of this code and any related development agreement;
3. Any conditions or restrictions shall be consistent with any development agreements that are in existence at the time of the hearing; and
4. Whether project conditions cumulatively are reasonable and would not preclude development of the EPF.
Should the recommendation of staff conflict with the recommendation of the Ad Hoc Committee the recommendation of staff shall be given greater weight.
H. Development Agreements. The terms and conditions of a development agreement completed after the decision of the designated hearing body shall supersede the conditions and restrictions imposed by the designated hearing body. (Ord. 23-1003 § 4; Ord. 21-1008 § 9; Ord. 15-1018 § 1)
15.115.050 Zone Reclassification (Rezone)
A. The purpose of a rezone is to provide a change of zoning to allow a new or different land use which conforms with the City Comprehensive Plan. A rezone may be approved when there has been a change in conditions, and/or is necessary to implement the Comprehensive Plan.
B. The applicant must show that the proposed development satisfies the following minimum criteria for approval by the Hearing Examiner:
1. The proposal conforms with the Comprehensive Plan policies and land use map;
2. The requested reclassification is in the public interest;
3. The requested reclassification is not hazardous or will not have adverse impacts on adjacent properties;
4. The requested reclassification does not pose undue burdens on public facilities; and
5. For sites located within the designated urban center, the requested reclassification has, or will potentially have, an adequate link to a high-capacity transit mode. (Ord. 15-1018 § 1)
15.115.055 Preliminary Site Plan
A. Purpose. Preliminary site plan provides an administrative process by which a development project is reviewed to ensure conformance with applicable policies, codes and development standards. The process is separate from and precedes initial building or engineering permit review and issuance.
B. Authority and Application.
1. Projects Which Require SEPA. At a minimum, preliminary site plan review is required for all projects subject to SEPA review per Chapter 16A.23 SMC; provided, that no other land use approval is required. SEPA review shall occur concurrently with the preliminary site plan review process.
2. Projects Which Do Not Require SEPA. The Director may establish administrative standards for projects to be subject to preliminary site plan review versus those more minor projects which can be approved through standard permit review/issuance.
C. Approval. Upon the filing of a complete application, the Director or designee shall have the authority, subject to the provisions of this section, to approve, approve with conditions or deny a preliminary site plan application. Approval may be subject to conditions as deemed necessary to ensure conformance with policies, codes and development standards.
D. Notice of Decision. Upon completion of review of the application, a written notice of decision shall be issued pursuant to Chapter 16A.15 SMC. The date of the decision constitutes the date of approval of the preliminary site plan.
E. Voiding of Approval. A preliminary site plan approval shall become null and void if a complete application for a building permit, or engineering permit when no building permit is required, is not filed within one (1) year of the date of approval.
F. Appeals. The applicant or any party of record may appeal the Director’s decision pursuant to Chapter 16A.17 SMC.
G. Extensions. Upon written request of the property owner or his/her authorized representative, the Director may grant an extension of time up to but not exceeding six (6) months. Such extension shall be based upon finding that there has been no material change of applicable policies, codes and development standards, and that granting an extension would not be detrimental to the public health, safety or general welfare. (Ord. 18-1001 § 3)
15.115.060 Hearing Examiner Development Review Process
A. See Chapter 1.20 SMC.
B. Public Hearings.
1. Before rendering a decision on any application or appeal, the Hearing Examiner shall hold a public hearing thereon. For applications subject to City Council action, the public hearing by the Hearing Examiner shall constitute a hearing by the City Council.
2. Whenever a project requires more than one (1) permit or approval, the Hearing Examiner may order a consolidation of and conduct the required public hearings to avoid unnecessary costs or delays. Decisions of the Hearing Examiner to order and conduct consolidated hearings shall be final in all cases.
C. Procedural Notice Requirements. Notice of public hearings shall be provided as specified in Chapter 16A.13 SMC.
D. Department Report. When an application or appeal has been set for public hearing, the Department shall coordinate and assemble the reviews of other City departments and governmental agencies having an interest in the subject application or appeal, and shall prepare a report summarizing the factors involved and the Department’s findings and recommendation or decision. At least fourteen (14) days prior to the scheduled hearing, the report, and in the case of appeals, any written appeal arguments submitted to the City, shall be filed with the Hearing Examiner and copies thereof shall be mailed to all persons of record who have not previously received said materials.
E. General Criteria for Examiner Decisions.
1. Each decision of the Hearing Examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision.
2. The Hearing Examiner’s findings and conclusions shall carry out and help implement applicable State laws and regulations and the regulations, policies, objectives and goals of the Comprehensive Plan, the Zoning Code, the Subdivision Code and other official laws, policies and objectives of the City, and that the decision will not be unreasonably incompatible with, or detrimental to, affected properties and the general public.
3. The Hearing Examiner shall accord substantial weight to the recommendation of the Department.
F. Examiner Actions. Within ten (10) working days of the conclusion of a hearing or rehearing, the Hearing Examiner shall render a written recommendation or decision and shall transmit a copy thereof to the Department. The Department shall then transmit a copy of the decision to all parties of record.
1. The Examiner’s decision may be to grant or deny the application or appeal, or the Hearing Examiner may grant the application or appeal with such conditions, modifications and restrictions as he/she finds necessary to make the application or appeal compatible with the environment, and carry out applicable State laws and regulations, and the regulations, policies, objectives and goals of the Comprehensive Plan, the Zoning Code, the Subdivision Code and other ordinances, policies and objectives of the City.
2. The conditions, modifications and restrictions that the Hearing Examiner may impose include additional setbacks, screening in the form of landscaping or fencing, covenants, easements and dedications of additional road rights-of-way. Performance bonds or equivalent measures may be required to insure compliance with the conditions, modifications and restrictions of this code. (Ord. 15-1018 § 1)
15.115.070 Appeal Process
See Chapter 16A.17 SMC. (Ord. 15-1018 § 1)