Chapter 17.36
ADMINISTRATION AND ENFORCEMENT
Sections:
17.36.010 Zoning administrator—Appointment and duties.
17.36.020 Planning commission—Powers and duties.
17.36.030 Town council—Powers and duties.
17.36.050 Nonconforming use or structure.
17.36.060 Nonconforming use or structure variance.
17.36.100 Enforcement—Violation—Penalty.
17.36.120 Nonpayment or part payment of fees.
17.36.010 Zoning administrator—Appointment and duties.
The zoning administrator, herein called the administrator, shall be appointed by the mayor with confirmation by the town council. The duties and responsibilities of the administrator shall include:
A. Establishing general procedures and preparing forms and applications for the administration of this title;
B. Making administrative decisions and interpretations of the policies and regulations of this title;
C. Reviewing all applications made under this title according to the provisions of Title 19;
D. Conducting preapplication conferences pursuant to Section 19.04.010;
E. Making field inspections where necessary or deemed advisable by the administrator or requested by the planning commission or the town council;
F. Determining if a use is prohibited under this title, and if not prohibited, which type of permit procedure in accordance with Chapter 19.02 is applicable;
G. Reviewing building permit applications to determine compliance with this title, including review for compliance with mandatory performance standards when applicable;
H. Submitting preliminary long plat, planned development, and applications for amendments to this title to the planning commission with written report thereon, including summary of relevant code provisions and summary of all comments, and recommendation for action thereon;
I. Investigating and ruling upon applications for statements of nonconforming use or structure status or for approval of home occupations;
J. Investigating applications for conditional uses, variances or nonconforming use or structure variances and transmittal of completed files thereon to the zoning administrator;
K. Assuring that all necessary notices are given pursuant to Chapter 19.06 and this title;
L. Providing technical and administrative assistance to the planning commission and the town council as required for effective and equitable implementation of this title;
M. Providing summary report to the planning commission and the town council of all permits and approvals issued under this title for the prior calendar year, in February of each year. The report should include summary of significant administrative determinations and appeals, identification of any problem areas, and any recommendations for improvement of this title;
N. Investigating, developing and proposing amendments to this title as deemed necessary to more effectively and equitably achieve its goals and policies;
O. Seeking remedies for alleged violations of this title, or of any permits issued hereunder, and bringing the same to the attention of the mayor when formal action is proposed. (Ord. 663 § 5 (part), 2014: Ord. 489 § 10(A –F), 1998; Ord. 372 § 9(1), 1990)
17.36.020 Planning commission—Powers and duties.
The town planning commission shall hear and make recommendation to the town council on long plat and planned development applications and amendments to this title. In addition, the planning commission shall be charged with periodic review of this title and uses and permits developed hereunder, to determine if the provisions hereof meet the goals and policies of the town comprehensive plan, as amended, and with recommending necessary amendments hereto and conducting hearings thereon. The planning commission shall function as the long-range planning body of the town, and may instigate action on its own accord when it deems it necessary to meet the goals and policies of the town’s planning documents or to make necessary changes thereto. (Ord. 663 § 5 (part), 2014: Ord. 489 § 10(G), 1998; Ord. 372 § 9(2), 1990)
17.36.030 Town council—Powers and duties.
The town council of the town shall have the following duties and authorities under this title:
A. Making final decisions (subject only to judicial review) on applications for type III and IV permits and for amendment to this title;
B. Conducting hearings and determining appeals from decisions of the administrator and planning commission made pursuant to Title 19;
C. The council may initiate amendments to this title on its own initiative, and shall make final decisions thereon after hearing, review and recommendation by the planning commission, to whom such proposals for amendment shall initially be referred by resolution;
D. Requiring an applicant for a permit hereunder to post a bond as authorized by this title in an amount determined by them and running to the town. (Ord. 489 § 10(H, I), 1998; Ord. 372 § 9(3), 1990)
17.36.040 Variances.
The town council shall hear and decide on applications for variances from the terms of this title, pursuant to the following procedures and conditions:
A. Applications. Applications for variance permits shall be filed pursuant to Chapter 19.04.
B. Notice. The administrator shall set a date and time for hearing on the variance application pursuant to Chapters 19.06 and 19.10.
C. The town council shall, on the date and time set for hearing, conduct a public hearing upon the variance application, at which all interested persons may appear and be heard on the application, or may submit written comment thereon.
D. Variance Criteria. Before any variance may be granted, it shall be first demonstrated and the town council shall find that all of the following criteria apply:
1. Due to special circumstances applicable to the subject property, not created by the applicant, and not shared by the area in general, including size, shape, topography, or location of the property, and over which the applicant has no control, the strict application of the zoning ordinance is found to deprive the subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classifications; and
2. The granting of the variance will not be materially detrimental to the public welfare or injurious to other property or improvements in the area in which the subject property is situated, and will not conflict with the purposes, policies or objectives of this title; and
3. The variance requested is the minimum variance which will alleviate the particular hardship.
E. The town council shall issue its decision in accordance with the provisions of Chapter 19.10. (Ord. 489 § 10(K –M), 1998: Ord. 372 § 9(4), 1990)
17.36.045 Conditional uses.
A. Intent. The town council shall hear and decide on all applications for conditional use permit pursuant to Title 19 of the Winthrop Municipal Code. Such uses upon which conditions may be imposed must be specifically identified in Table 17.16.010 as allowed by conditional use in the zone district where it is located. Applications for conditional use permits must include a list of uses and accessory uses and structures expected for the site in question. The standards, criteria and procedures of this article apply to any conditional use permit authorized by Title 17.
B. Basis for Denial. The town council is authorized to deny an application for conditional uses for the following reasons:
1. The use is not consistent with the comprehensive plan goals and objectives for the particular location;
2. Circumstances in the particular location of the proposed use will pose a potential threat to public health, safety and/or welfare which cannot be addressed by conditions;
3. Controversy exists as to the meaning of a particular provision of this title and such provision is construed liberally in the favor of the general public interest in accordance with Section 17.04.040 of this title.
Pursuant to Section 19.10.090, written findings of fact and a notice of decision must be prepared that sets forth the basis for the denial.
C. Imposition of Conditions by the Town Council. Conditions may be imposed only after the council satisfies the following standards and criteria:
1. The town council shall identify and state the purpose or purposes sought to be achieved by imposing conditions in connection with the permit. The town council shall base this determination upon provisions of the comprehensive plan which are applicable to the geographic area or proposed use in question and upon pertinent purposes of this title.
D. Limitations on Conditions. The town council may impose any conditions upon granting the conditional use permit subject to the following limitations:
1. That the conditions imposed are reasonably calculated to achieve the purposes identified in Section 17.04.010.
2. That such conditions are not unnecessarily burdensome;
3. That a conditional use permit is required and appropriate to the circumstances;
4. That the proposed conditions imposed will be in harmony with the purposes of the comprehensive plan as it relates to the circumstances;
5. That the proposed conditions will protect the public health, safety, morals and general welfare;
6. That the use with conditions imposed will be in compliance with the purposes and requirements set out in this title for the zone district where the use is located.
E. Examples of Conditions That May Be Imposed.
1. The following are examples of the types of conditions which the town council may impose:
a. Require a performance bond or acceptable surety in an amount and with conditions satisfactory to the town council, providing for and securing to the town the performance of conditions imposed on the construction of improvements;
b. Specify a time limit within which action for which the conditional use permit is required shall be begun or completed, or both;
c. Require an annual review of the issued permit to assure compliance with any implied conditions;
d. Increase the required lot size or yard dimension;
e. Limit the height or total lot space coverage of buildings;
f. Impose conditions on all matters relating to automobile and pedestrian traffic control and design;
g. Require suitable landscaping, including screening;
h. Control signing;
i. Stipulate the exact location of activities or structures as means of minimizing hazards to life, limb, property, erosion, landslide, traffic, etc.;
j. Require structural features or equipment essential to serve the same purpose set forth in item m (below) of this subsection;
k. Control nuisance-generating features in matters of noise, color, air pollution, wastes, vibration, traffic, physical hazards, etc.;
l. Control hours of operation;
m. Insure against imposing excessive demands upon public services and facilities;
n. In permitting a conditional use, the town council may impose, in addition to the regulations and standards expressly specified in this title, other conditions found necessary to protect the best interest of the surrounding property, the neighborhood or the town as a whole.
F. Standards Governing Conditional Use Permits. In addition to the conditions which may be imposed by the town council, a conditional use permit shall at least comply with the following standards when applicable and the standards of the zone district in which it is located as described in Chapters 17.20, 17.24 and 17.28 of this title.
1. Propane Distribution. All existing and proposed propane distributors shall comply with the following standard conditions:
a. All installations shall be inspected as requested by the town fire chief and/or building official to ensure compliance with the provisions of this section;
b. All such uses must comply with the Uniform Fire Code as adopted by the town;
c. All sales must be by weight rather than volume;
d. Sales personnel must be certified in the safe operation of dispensing equipment by the propane supplier within thirty (30) days of hiring;
e. Submit a site plan which shows the location of the distribution facility in relation to property boundaries, residential uses and contains sufficient detail to provide the fire chief and/or building official with the information required to ensure compliance with the Uniform Fire Code.
G. Procedure For Approval of a Conditional Use Permit. The town council may authorize the issuance of a conditional use permit only after following the procedures set out in Title 19 of the Winthrop Municipal code. (Ord. 489 § 10(J), 1998)
17.36.050 Nonconforming use or structure.
A nonconforming use or structure is a use or structure which was lawfully established or constructed prior to the effective date of the ordinance codified in this title but which does not conform to the regulations or standards set forth in this title. Any person owning or operating a nonconforming use or structure may apply to the administrator for a statement of such use or structure as nonconforming hereunder.
A. Application shall be made on form provided by the administrator, and shall contain all information, maps, etc. required by the form or requested by the administrator and necessary or helpful to show such use or structure to be nonconforming.
B. Upon receipt of such application (including payment of fee therefor) the administrator shall notify all adjoining property owners within three hundred (300) feet of the use or structure, of the pending application, and shall post notice thereof, and shall accept written comment thereon for a period of twenty-one (21) days from date of such notice being given.
C. After consideration of such application and all information provided by the applicant and of all comments received thereon, the administrator shall within forty (40) days of receipt of the completed application, accept or deny the application for statement of nonconforming status. The decision shall be in writing and shall be accompanied by findings of fact and conclusions on which it is based, and if accepted shall specifically define and describe the nature of the nonconforming use or structure in order to determine whether future uses or construction constitute an unlawful expansion or alteration thereof. (Ord. 372 § 9(5), 1990)
17.36.060 Nonconforming use or structure variance.
A. The owner of a nonconforming use or structure may apply to the town council for a nonconforming use or structure variance, to allow for alteration or expansion of a nonconforming use or structure, pursuant to the procedures set forth in subsections A, B, C and E of Section 17.36.040.
B. Criteria. Before any nonconforming use or structure variance may be granted, it shall be first demonstrated and the town council shall find that all of the following criteria apply:
1. Expansion or alteration of a nonconforming use shall be limited to uses which are substantially similar to allowed uses in the area, or which do not conflict with the general purpose and intent of the zone district in which it is located;
2. The expansion or alteration shall not substantially increase the nonconforming aspect of the use or structure;
3. The inability to alter or expand the nonconforming use or structure works a hardship upon the applicant. (Ord. 489 § 10(N), 1998: Ord. 372 § 9(6), 1990)
17.36.070 Amendment of title.
Any provision of this title including the official zoning map may be amended by following the procedures of this section.
A. Comprehensive Plan. No amendment to this title shall be adopted nor any rezone granted which is inconsistent with the comprehensive plan of the town, as now existing or hereafter amended.
B. Initiation. An amendment to the text of this title or to the zoning map adopted herewith may be initiated by:
1. Resolution of the town council;
2. Resolution of the town planning commission; or
3. Petition by a registered voter or landowner of the town.
C. Petition for Amendment. Petitions for amendment to the text of this title or to the zoning map shall be on forms prescribed by the administrator, and shall be filed with the town clerk together with fee therefor as determined by the town council pursuant to this title, and together with completed SEPA environmental checklist and SEPA checklist fee. Petitions for amendment shall include the following information:
1. Petitions to amend the zoning map shall include a vicinity map and a complete legal description of the property for which amendment is sought, a clear explanation of the requested amendment, and a justification for said change. The petition shall be signed by the owner or owners of not less than sixty (60) percent of the acreage for which rezone is sought, and each signer shall give his/her name, address, and the description by lot and block number or assessor’s tax number accompanied by assessor’s map therefor, of the property owned by each such signer.
2. Petitions for amendment to the text of this title shall include a complete explanation of the section(s) of the title for which amendment is sought, and of the requested amendment with proposed language therefor, and each signer shall give his/her name and address.
D. Resolution for Amendment. Resolution of the town council or of the town planning commission for amendment to the text of this title or the zoning map shall be directed to the town clerk and shall include complete description or map of the property for which amendment is sought, and/or a complete explanation of the section(s) of the title for which amendment is sought and the proposed language therefor.
E. Hearing on Petition or Resolution. Upon receipt of such petition or resolution the town clerk shall submit the same to the administrator who shall determine if the petition or resolution is complete, and if so, shall refer the same to the planning commission. At its next regular meeting the planning commission shall set a date for public hearing on the petition or resolution, and shall cause notice to be given as required in this title. The administrator shall also mail copies of the petition or resolution to any interested resource agencies including the Okanogan County planner. At the public hearing on the petition or resolution, the town planning commission shall review the same and the report and recommendation of the administrator thereon and all environmental information filed therewith (including the SEPA threshold determination of the SEPA responsible official), shall review all written comments received from any interested agencies, town departments, and the public, and shall take testimony from all persons who appear to be heard on the petition or resolution. After conclusion of public hearing on a petition or resolution for amendment, the planning commission shall issue its written recommendation on such petition, which shall include findings of fact and conclusions upon which such recommendation is based.
F. Decision of Town Council. Upon receipt of recommendation from the planning commission on a petition or resolution for amendment, the town council shall at its next regular meeting, set a date to consider the same, which shall be heard at a public meeting of the council. The town council shall at such meeting, consider the petition or resolution and the record and recommendation of the planning commission and shall determine whether to accept the recommendation of the planning commission. If the town council does not accept the recommendation of the planning commission without substantial alteration or conditions thereto, then the council shall set a date for public hearing upon the petition or resolution and shall cause notice to be given thereof as set forth in this title. At the date set for public hearing, the council shall hear testimony from all persons who wish to be heard on the petition or resolution, and shall thereafter issue its decision to grant the amendment, deny the amendment, or to grant the amendment with conditions or modifications thereto. (Ord. 377 §§ 1—3, 1990; Ord. 372 § 9(7), 1990)
17.36.080 Notice.
Whenever notice of a public hearing is required to be given pursuant to the terms of this title, such notice shall be given in the manner as required in Chapters 19.06 and 19.10. (Ord. 489 § 10(O, P), 1998: Ord. 372 § 9(8), 1990)
17.36.090 Appeals.
A. Administrator Decisions. Appeals from a decision of the administrator, including but not limited to decisions on statement of nonconforming status, compliance with mandatory performance or development standards, decisions regarding off-street parking requirements, or interpretations of this title or any provision hereof, or any other action within the purview of the administrator pursuant to this title, shall be to the town council in accordance with Chapter 19.02. All appeals shall be processed in accordance with Chapter 19.12. (Ord. 489 § 10(Q, R), 1998: Ord. 372 § 9(9), 1990)
17.36.100 Enforcement—Violation—Penalty.
No structure, lot, or area of land shall hereafter be used or occupied and no structure or part thereof shall be erected, moved, reconstructed, extended, enlarged or altered except in compliance with the provisions of this title.
A. Civil Enforcement.
1. Action. The town attorney, when authorized by the mayor, shall bring such injunctive, declaratory, or other actions as are necessary to insure that no uses are made or structures are constructed within the town in conflict with the provisions of this title, and to otherwise enforce the provisions hereof.
2. Noncompliance. Any person who fails to conform to the terms of a permit or decision issued under this title or who undertakes a development or use within the town in violation of the provisions of this title shall be subject to a civil penalty in an amount not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each violation. Each permit violation and each day of use or continued development in violation of this title shall constitute a separate violation.
3. Aiding and Abetting. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.
4. Notice of Penalty. The penalty provided for in this section shall be imposed by a notice in writing, served upon the person incurring the same either by mailing certified mail, return receipt requested, or by personal service. The notice shall include the “content of order” specified in subdivision 6 of this subsection.
5. Remission or Mitigation. Within thirty (30) days after receipt of notice, the person incurring the penalty may apply in writing to the town for remission or mitigation of such penalty. Upon receipt of the application, the town shall set a date to hear the applicant, and may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty. Any penalty imposed pursuant to this section by the town shall be subject to review by the town council.
6. Regulatory Order. The content of order under this section shall set forth and contain the following:
a. A description of the specific nature, location, extent and time of the violation and the damage or potential damage (if relevant); and
b. A notice that the violation or the potential violation cease and desist or, in appropriate cases, the specific corrective action to be take within a given time. A civil penalty under this section may be served with the order and the same shall specify a date certain or schedule by which payment shall be complete.
7. Effective Date. The cease and desist order issued under subdivision 6 of this subsection shall become effective immediately upon receipt by the person to whom the order is directed.
8. Compliance. Failure to comply with a cease and desist order can result in enforcement actions including but not limited to the issuance of civil penalties or additional civil penalties.
B. Delinquent Permit Penalty. Persons applying for a permit after commencement of a use or activity for which such permit is required shall be required to pay a delinquent permit penalty not to exceed three times the appropriate permit fee for the required permit. Delinquent permit penalties shall be paid in full prior to resuming the use, activity or development.
C. General Criminal Penalty. In addition to incurring civil penalties under subsection A of this section, any person found to have wilfully engaged in a use or activity in violation of the provisions of this title shall be guilty of a gross misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for not more than ninety (90) days for each such offense, or by both such fine and imprisonment; provided, that the fine for each separate offense for the third and all subsequent violations in any five-year period shall be not less than ten thousand dollars ($10,000.00).
D. Violator Liability, Damages and Attorney Fees. Any person subject to the regulatory program of this title who violates any provision hereof or any permit issued pursuant hereto shall be liable for all damage to public or private property from such violation, including the cost of restoring the affected area to its condition prior to the violation. The town attorney shall bring suit for damages under this section on behalf of the town, upon the direction of the mayor. Private persons shall have the right to bring suit for damages under this subsection on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation, the court may make provisions to assure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such damages or restorative relief, the court in its discretion may award attorney’s fees and costs of the suit to the prevailing party.
E. Denial of Development or Other Permits. No building permit, side sewer permit, or other development permit shall be issued for any parcel of land used or developed in violation of this title. All purchasers or transferees of the property shall comply with the provisions of this title, and any such purchaser or transferee may recover his/her damages from any seller or transferor selling, transferring or leasing his/her land in violation of this title, including any amount reasonably spent as a result of inability to obtain such development permit and/or spent to conform to the requirements of this title, as well as reasonable attorney fees and costs of suit occasioned thereby. Such purchaser or transferee may as an alternative to conforming his/her property to these requirements, rescind the sale or transfer and recover costs of investigation and reasonable attorney fees incurred from the violator. (Ord. 372 § 9(10), 1990)
17.36.110 Fee schedule.
Applicants for planned development permits, variances, statements of nonconforming use or structure, nonconforming use/structure variances, approvals of home occupations, or petitioners for amendment to the text of this title or to the zoning map adopted herewith, shall pay application fees with submittal of their applications or petitions, in an amount to be determined from time to time by resolution of the town council of the town. (Ord. 372 § 10(1), 1990)
17.36.120 Nonpayment or part payment of fees.
In the event that any applicant shall fail to pay the appropriate fee with his/her application or petition under this title, then the application or petition shall be deemed to be incomplete and shall be returned to the applicant, and no action shall be taken thereon until full payment of such applicable fees. In the event that any application or petition under this title is accepted in error without full payment of the proper fee therefor, then upon discovery of such error, the administrator shall promptly notify the applicant of the incomplete payment and of the amount due, and further action upon such application or petition shall be stayed pending receipt from the applicant or petitioner of the total amount due. Acceptance of an application or petition without full payment of fees due therefor shall not waive any right of the town, through the administrator, to collect the proper fee(s) due as determined by this title. All fees required under this title shall be in addition to and not in lieu of any other fees due for permits or approvals under any other ordinance, rule or regulation of the town. (Ord. 372 § 10(2), 1990)