A. Applicability and Intent. The purpose of the reasonable use exception (RUE) process is to allow reasonable use of property and explore alternatives to development that would be permitted in accordance with the underlying zoning designation and standards. An applicant may request a RUE pursuant to this section when a site assessment review pursuant to Chapter 15.20 BIMC or a preapplication conference demonstrates that:
1. The subject property is encumbered to such an extent by critical areas and/or critical area buffers that application of this chapter would deny all reasonable use of the subject property;
2. Reasonable use of the subject property cannot be achieved through buffer modification (BIMC 16.20.110 and 16.20.140) or a habitat management plan (BIMC 16.20.110); and
3. Alternatives to development through a RUE are not available or acceptable.
B. During the preapplication process, the city may:
1. Determine whether the property qualifies for inclusion in any program that would eliminate the need for a RUE including, but not limited to, transfer or purchase of development rights, mitigation banking, and open space acquisition or other conservation mechanism. If the property qualifies for inclusion in one or more of such programs, the director shall notify the applicant in writing of such qualification and of the applicable rules and regulations, and shall send an application form for inclusion in such program(s). If the property is included in one or more of such programs, a RUE application is not required; or
2. Determine to offer to purchase the development rights rather than grant a RUE, and the applicant, at his/her sole discretion, may agree to sell said development rights rather than pursue a RUE.
C. RUE Request and Review Process. An application for a RUE shall include the city’s master land use application; a critical area report or habitat management plan, including mitigation plan, if necessary; and any other relevant information and reports that are necessary, as determined by the director, to process and prepare the recommendation on the application, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act, Chapter 43.21C RCW (SEPA documents).
D. The director shall prepare a recommendation to the hearing examiner based on review of the submitted information and reports, a site inspection, and the proposal’s compliance with the criteria in subsection F of this section.
E. Hearing Examiner Review. The hearing examiner shall review the RUE application and conduct a public hearing pursuant to the provisions of BIMC 2.16.100. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s compliance with all of the RUE review criteria in subsection F of this section.
F. Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions are as follows:
1. The application of this chapter would deny all reasonable use of the property;
2. There is no reasonable alternative to the proposal with less impact to the critical area or its required buffer;
3. The proposal minimizes the impact on critical areas in accordance with mitigation sequencing (BIMC 16.20.030);
4. The proposed impact to the critical area is the minimum necessary to allow reasonable use of the property;
5. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant, or of the applicant’s predecessor, that occurred after February 20, 1992;
6. The proposed total lot coverage does not exceed 1,200 square feet for residential development;
7. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the property;
8. Any alterations permitted to the critical area are mitigated in accordance with mitigation requirements applicable to the critical area altered;
9. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values;
10. The proposal addresses cumulative impacts of the action; and
11. The proposal is consistent with other applicable regulations and standards.
G. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. The standard for the burden of proof shall be clear and convincing evidence. (Ord. 2018-01 § 2 (Exh. A), 2018)