2.16.165 Shoreline master program administration.

A. General Purpose. The shoreline master program administrative system is designed to assign responsibilities for implementation of the master program and shoreline permit review; to prescribe an orderly process by which to review proposals, exemptions and permit applications; and to ensure that all persons affected by the master program are treated in a fair and equitable manner.

B. Administrative Responsibilities.

1. The city of Bainbridge Island director of planning and community development or his/her designee, herein known as the administrator, is responsible for the administration of the Shoreline Management Act (SMA) (Chapter 90.58 RCW or its successor) and the shoreline master program (SMP) of the city and is vested with the following:

a. Overall administrative responsibility for the master program;

b. Authority to grant statements of exemption from shoreline permits;

c. Authority to approve, approve with conditions, or deny shoreline substantial development permits and permit revisions in accordance with the policies and regulations of the master program; provided, that the decision may be appealed in accordance with subsection I of this section);

d. Authority to decide whether a shoreline variance permit application is minor, qualifying it for administrative decision; if the shoreline variance is not minor, it will be processed following the procedures in subsection G of this section;

e. Authority to approve, approve with conditions, or deny shoreline variance permit applications determined to be minor; provided, that the decision may be appealed in accordance with subsection I of this section;

f. Authority to refer any application for a shoreline substantial development permit or a shoreline variance or conditional use to the planning commission for a recommendation; and

g. Authority to determine compliance with Chapter 43.21C RCW, State Environmental Policy Act, or its successor.

2. The duties and responsibilities of the administrator shall include:

a. Specifying the required application forms and submittal requirements including the type, details, and number of copies for exemptions, substantial development, conditional use, and shoreline variance permits. At a minimum, the application shall include the information required in WAC 173-14-110 or its successor.

b. Advising interested citizens and applicants of the goals, policies, regulations, and procedures of this program.

c. Making administrative decisions and interpretations of the policies and regulations of this program and the Shoreline Management Act.

d. Determining whether a shoreline exemption, shoreline substantial development permit, shoreline conditional use permit, or shoreline variance permit is required.

e. Collecting applicable fees and determining that all applications and necessary related information are provided.

f. Making field inspections.

g. Conducting a thorough review and analysis of permit applications and related materials, and making written findings and conclusions.

h. Making decisions pursuant to subsection B.1 of this section.

i. Referring applications to the planning commission for recommendations when requested by the applicant or when the director deems appropriate.

j. Submitting applications and all relevant information and materials along with written findings and recommendations to the hearing examiner pursuant to subsection B.1 of this section.

k. Providing technical and administrative assistance to the council, as needed, for effective and equitable implementation of this program and the Act.

l. Conducting ongoing monitoring of the master program’s effectiveness, identifying problem areas, and recommending program improvements.

m. Proposing amendments to this program as deemed necessary to more effectively and equitably achieve its goals and policies.

n. Seeking remedies for alleged violations of this program, the provisions of the Act, or of conditions of any approved shoreline permit.

o. Coordinating information with affected agencies.

p. Forwarding shoreline permits to Ecology for filing or appropriate action.

C. Permit or Exemption Required Before Undertaking Development or Activity.

1. Permits Required.

a. A development, use, or activity shall not be undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW or its successor) and the shoreline master program unless it is consistent with the policy and procedures of the Shoreline Management Act, applicable state regulations and the shoreline master program.

b. Any person wishing to undertake substantial development or exempt development on shorelines shall first make application to the administrator for an appropriate shoreline permit or a statement of exemption, and obtain all approvals, following the applicable procedures pursuant to this title.

c. A substantial development shall not be undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW or its successor) and the shoreline master program unless an appropriate shoreline permit has been obtained, the appeal period has been completed, any appeals have been resolved, and/or the applicant has been given permission by the proper authority to proceed pursuant to the procedures in this title.

d. If a development, use or activity is listed as a conditional use by the shoreline master program, such development, use, or activity shall not be undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW or its successor) and the master program unless a shoreline conditional use permit has been obtained, the appeal period has been completed, any appeals have been resolved, and/or the applicant has been given permission to proceed by the proper authority pursuant to the procedures of this title.

e. If a development, use, or activity cannot comply with the regulations of the master program, a shoreline variance must be obtained before commencement of development or construction, or beginning the use or activity pursuant to the procedures of this title.

f. If a project includes uses or activities that include permitted and conditional uses, or a major shoreline variance is required, all shoreline permits shall be heard and decided by the hearing examiner using the procedures, requirements, and criteria for a conditional use and/or shoreline variance pursuant to the procedures of this title.

g. See WAC 173-14-050 or its successor for a description of how the permit requirements apply to developments undertaken prior to the passage of the Shoreline Management Act of 1971.

h. See WAC 173-14-062 or its successor for a description of how the permit requirements apply to federal agency projects.

2. Statement of Exemption. If it has been determined by the administrator that a proposed development or activity is exempt from shoreline permits pursuant to WAC 173-27-040, a statement of exemption shall be required following the procedures provided in this chapter. No exempt development, use or activity shall be undertaken within the jurisdiction of the Shoreline Management Act (Chapter 90.58 RCW or its successor) and the master program unless a statement of exemption has been obtained from the administrator and all conditions are met.

D. Applications. The administrator shall provide the necessary application forms for statements of exemption and for permits for shoreline substantial development, shoreline conditional use, and shoreline variance. The application shall provide, at a minimum, the information required by WAC 173-14-110 or its successor along with the information required on the permit application.

E. Statement of Exemption from Shoreline Substantial Development Permit.

1. Purpose and Applicability. Certain development activities identified in WAC 173-27-040 are exempt from the requirement to secure a shoreline substantial development permit; however, a shoreline variance or shoreline conditional use permit may still be required. State law requires that exemptions be construed narrowly. Exemption from substantial development permit procedures does not constitute exemption from compliance with the policies and use regulations of the SMA (Chapter 90.58 RCW), the provisions of the master program, or applicable city, state or federal permit requirements. Applicants shall have the burden to demonstrate that the proposal complies with the requirements for the exemptions sought as described under WAC 173-27-040 or its successor. If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project, pursuant to WAC 173-27-040(d) or its successor.

2. Procedure.

a. In the case of an emergency, the administrator may waive this requirement and authorize the use or activity orally or in writing. If authorized orally, the applicant shall submit a required application as soon as possible.

b. The administrator shall decide requests for a statement of exemption based on WAC 173-27-040 or its successor and the provisions of the Shoreline Management Act and the master program.

c. Before determining that a proposal is exempt, the administrator may conduct a site inspection to ensure that the proposal meets the exemption criteria.

d. Exempt developments and activities shall comply with the Shoreline Management Act and the master program. The administrator shall condition statements of exemption to ensure the exempt development or activity complies with the Shoreline Management Act and the master program.

e. In the case of development subject to the policies and regulations of the master program, but exempt from the substantial development permit process, shoreline management requirements may be made conditions of the building permits and/or other permits and approvals. For example, the approval of a building permit for a single-family residence can be conditioned with provisions from the master program.

f. Whenever a development falls within the exemptions stated in WAC 173-27-040 or its successor, a letter exempting the development from the substantial development permit requirements of Chapter 90.58 RCW or its successor shall be given to the applicant and the Department of Ecology.

3. Decision Criteria.

a. Exemptions shall be narrowly construed. When making the determination, the administrator shall grant a statement of exemption only when the development proposed is consistent with the following:

i. The applicable policies, guidelines, and regulations of the Shoreline Management Act of 1971; Chapter 90.58 RCW, as amended; and Chapters 173-26 and 173-27 WAC or their successors;

ii. The goals, policies, objectives and regulations of the city of Bainbridge Island shoreline master program;

iii. The city of Bainbridge Island comprehensive plan and municipal code; all other applicable law; and any related documents and approvals.

4. Action of Administrator. The administrator may grant, deny, or conditionally approve the shoreline exemption request. The approval or conditional approval will become conditions of approval for any related development permit, and no development permit will be issued unless it is consistent with the statement of exemption. A copy of the city’s statement of exemption shall be filed with the Department of Ecology.

5. Application Time Frame. The approval for a shoreline exemption shall be the same as the expiration date of the development permit. All conditions of the approval for a shoreline exemption shall be included in the conditions of approval granted for the development permit.

6. Appeal. Any person aggrieved by the administrator’s determination on a shoreline exemption request may be appealed, except as stated below, using the applicable appeal provision of subsection I of this section. If a proposed development activity also requires approval through other permit procedures, any appeal of a shoreline exemption requires will be heard as part of that other process.

F. Shoreline Substantial Development Permit.

1. Purpose and Applicability. Substantial development is any development of which the total cost or fair market value exceeds the amount established by WAC 173-27-040 (see city’s fee schedule) or any development which materially interferes with the normal public use of the waters or shorelines of the state, except those exempted developments set forth in subsection E of this section, consistent with WAC 173-27-040 or its successor.

2. Procedure. Shoreline substantial development permits shall be approved through the general administrative review procedures described in BIMC 2.16.030 except as described below. Application materials for shoreline substantial development permits can be found in the Administrative Manual.

a. Public Comment. The city shall not make a decision on the permit until after the end of the comment period.

i. A 30-day public comment period shall be given for shoreline permits.

ii. The public comment period shall be 20 days for substantial development permits for a limited utility extension or for erosion control measures to protect a single-family residence and its appurtenant structures. (See shoreline master program definition of “limited utility extension,” Chapter 16.12 BIMC.)

iii. SEPA review shall be conducted as provided by Chapter 16.04 BIMC, Environmental Policy, or its successor. The required SEPA notices should be included with the shoreline notices when possible. The SEPA documents should be circulated with permit documents where possible.

3. Decision and Criteria. After the 30-day comment period has ended, the administrator shall issue a decision on the application.

a. The administrator may approve, approve with modifications, or deny any substantial development permit.

b. Decision Criteria.

i. In making the decision, the administrator shall grant a substantial development permit only when the development proposed is consistent with the following:

(A) The applicable policies, guidelines, and regulations of the Shoreline Management Act of 1971; Chapter 90.58 RCW, as amended; and Chapters 173-26 and 173-27 WAC or their successors;

(B) The goals, policies, objectives and regulations of the city of Bainbridge Island shoreline master program;

(C) The city of Bainbridge Island comprehensive plan and municipal code; all other applicable law; and any related documents and approvals.

ii. The administrator shall also consider whether the cumulative impact of additional past and future requests that reasonably may be made in accordance with the comprehensive plan, or similar planning document, for like actions in the area will result in substantial adverse effects on the shoreline environment and shoreline resources.

c. The applicant(s) shall have the burden of proving that a proposed development is consistent with the approval criteria and master program policies and regulations (WAC 90.58.140(7) or its successor).

d. The administrator may require additional information if necessary.

e. The administrator shall issue a written decision which contains the following:

i. A statement indicating the application is approved, approved with modifications, or denied;

ii. A statement of any conditions included as part of an approval or approval with modifications;

iii. A statement of facts upon which the decision, including any conditions, is based, and the conclusions derived from those facts; and

iv. A statement of the right of any person to appeal the decision of the administrator pursuant to subsection I of this section.

f. The administrator may refer the application to the planning commission for review and recommendations prior to deciding the application. The application shall also be referred to the planning commission for a recommendation at the request of the applicant. The planning commission makes its recommendation following its review of the proposal, the environmental checklist, and the tentative threshold determination.

g. The permit, whether approved or denied, shall be in the form required by WAC 173-27-120 or its successor.

4. Distribution/Notification of Administrative Decision.

a. The administrator shall mail the applicant the original of the completed permit form and the findings and conclusions.

b. All persons who submitted comments on the application during the comment period (see subsection F.2 of this section) and anyone else requesting notification in writing shall be notified in a timely manner of the decision and shall be mailed a copy of the decision. Pursuant to WAC 173-27-130, the decision shall be filed with the Washington State Department of Ecology and the Washington State Office of the Attorney General.

5. Application Time Frame.

a. Substantial Progress.

i. Substantial progress towards completion of a permitted activity shall be undertaken within two years after approval of the permit (WAC 173-27-090 or its successor). See definition of “substantial progress” in BIMC 16.12.080.

ii. The administrator may, with prior notice to parties of record and to the Department of Ecology, grant one extension of the two-year time period for substantial progress for up to one year based on reasonable factors which would justify the extension, including the inability to expeditiously obtain other governmental permits which are required prior to the commencement of construction (WAC 173-27-090 or its successor). The request for the extension must be filed with the administrator before the end of the time limit.

b. Five-Year Permit Authorization.

i. The authorization granted by an approved permit to construct any structure or conduct any use or activity shall terminate five years after the date the permit is approved by the city, except that the permit may be authorized for a lesser period of fixed duration.

ii. Where an approved permit authorizes construction, the use and maintenance of the structure or facility may continue after the five-year period, provided the structure was completed during the five-year time limit or any approved extension.

iii. Where an approved permit authorizes a use or activity which does not require a structure, such as mining or maintenance dredging, the use or activity shall cease at the end of the five-year limit or any extension as granted in subsection F.5.b.iv of this section.

iv. The administrator may, with prior notice to parties of record and to the Department of Ecology, grant one time extension of up to one year based on reasonable factors which would justify the extension. The request for the extension must be filed with the administrator before the end of the time limit.

c. The application time limits shall not include the time during which an activity was not actually pursued due to the pendency of reasonably related administrative appeals or litigation.

d. When a permit is conditioned, the conditions shall be satisfied prior to occupancy or use of a structure, or prior to commencement of a nonstructural activity, provided an alternative compliance limit may be specified in the permit.

e. Revisions to permits may be authorized after the original permit has expired under subsection F.5.b of this section, provided this procedure shall not be used to extend the original permit time requirements (WAC 173-27-060 or its successor).

6. Adjustments to Approved Shoreline Substantial Development Permits.

a. Minor adjustments to an approved shoreline substantial development permit may be made after review by the administrator. The applicant must submit detailed plans and text describing the proposed changes. If the administrator determines that the revisions proposed are within the scope and intent of the original permit, consistent with WAC 173-27-100 or its successor, the administrator may approve the revision as a minor adjustment.

b. A minor adjustment entails a revision that is within the scope and intent of the original permit, which means all of the following:

i. No additional over-water construction is involved, except that pier, dock, or float construction may be increased by 500 square feet or 10 percent, whichever is less;

ii. Ground area coverage and height is not increased more than 10 percent;

iii. Additional structures located landward and not within required buffer or setback areas do not exceed a total of 250 square feet;

iv. The revision does not authorize development to exceed height, setback, lot coverage, or any other requirement of the city of Bainbridge Island shoreline master program;

v. Additional landscaping is consistent with conditions, if any, attached to the original permit and with the applicable master program provisions;

vi. The use authorized pursuant to the original permit is not changed; and

vii. No adverse, environmental impact will be caused by the project revision (WAC 173-27-064(2)(a) through (g) as amended).

c. If the sum of the proposed revision and any previously approved revisions do not meet the criteria above, the revision shall be reviewed through a major adjustment process. This shall be processed in the same manner as a new shoreline substantial development permit application. If the adjustment involves a conditional use or shoreline variance which was conditioned by the Department of Ecology, the adjustment also must be reviewed and approved by the Department of Ecology (WAC 173-27-064 or its successor).

d. A city or the Department of Ecology decision on a minor or major adjustment to the permit may be appealed within 21 days of such decision, in accordance with RCW 90.58.180 or its successor, and WAC 173-27-064 or its successor.

e. Construction allowed by the revised permit that is not authorized under the original permit is undertaken at the applicant’s risk until the expiration of the appeals deadline.

7. Appeal. The decision of the administrator may be appealed to the hearing examiner following the procedures of subsection I of this section.

G. Shoreline Variance, Minor or Major. This subsection applies to all applications for shoreline variances.

1. Purpose. The purposes of a shoreline variance permit is strictly limited to granting relief to specific bulk, dimensional, or performance standards set forth in the master program, where there are extraordinary or unique circumstances relating to the property such that the strict implementation of the master program would impose unnecessary hardships on the applicant or thwart the Shoreline Management Act policies as stated in RCW 90.58.020 or its successor.

2. Applicability.

a. The minor variance process may be used for minor deviations from zoning standards in BIMC Title 18 and Chapter 16.12 BIMC as determined by the director. Minor projects should be limited to: (i) projects that are exempt from review under the State Environmental Policy Act (SEPA), or (ii) proposals for less than a 25 percent encroachment in required yards, or (iii) proposals of less than a 25 percent increase in lot coverage. All other variances shall be considered a major variance and processed as described in subsection G.2.b of this section.

b. This process may also be used for minor variation(s) from the engineering requirements of the adopted city of Bainbridge Island engineering and development standards if the requested variation will further the purposes of the BIMC and is approved by the department director, after recommendation by the city engineer and/or the fire marshal.

c. This procedure is not available to obtain variances from subdivision standards in BIMC Title 17 or to obtain variances from BIMC Title 18 zoning standards cross-referenced in BIMC Title 17 as part of a short subdivision, long subdivision, or large lot subdivision approval or amendment process, except for those engineering standards covered by subsection B.2 of this section.

d. This procedure is not available to allow the siting for an accessory dwelling unit where it would not otherwise be permitted.

e. A variance shall not be granted solely because of the presence of nonconformities in the vicinity of the subject site.

f. The project involves only one project.

g. The project has not generated a significant public input.

3. Procedure.

a. Minor Shoreline Variance. The administrator shall review a minor shoreline variance application following procedures in subsection F.2 of this section.

b. Major Shoreline Variance. Applications for shoreline variances that are more intensive than the minor shoreline variance as determined by the administrator shall be decided by the hearing examiner following the procedures in BIMC 2.16.100, or its successor, supplemented by the following provisions:

i. The decision of the hearing examiner shall be the final city decision, and may be appealed in accordance with subsection I of this section.

c. Notice of Application and Comment Period. In addition to the notice of application content established in BIMC 2.16.020.M, notice of application for shoreline variance permits must also contain the information required under WAC 173-27-110.

d. Notice of Hearing. When a public hearing is required, the procedures of BIMC 2.16.020.M.5 shall apply.

e. The administrator shall mail the final city decision to the applicant, the State Department of Ecology, and the State Attorney General. The permit must be received by Ecology within eight days of the date of the decision. Within eight days of the date of the decision, the administrator shall also mail the decision to any person who requested notice of the decision.

f. The State Department of Ecology shall approve, approve with conditions, or deny all shoreline variances approved by the city. Ecology’s decision must be made within 30 days of the date the permit and other information required by WAC 173-14-090 or its successor are received by Ecology and the Washington State Attorney General. Ecology will send a letter to the applicant and the city informing them of the decision. Upon receipt of the Ecology decision, the administrator shall notify those interested persons who requested notification.

4. Decision Criteria. Pursuant to WAC 173-27-170 and 173-27-210 or their successors, the criteria below constitute the minimum criteria for review and approval of a shoreline variance permit:

a. Shoreline variance permits for development and/or uses that will be located landward of the ordinary high water mark (OHWM), and/or landward of any wetland, as defined in Chapter 16.12 BIMC, may be authorized, provided the applicant can demonstrate all of the following:

i. The strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes, or significantly interferes with, reasonable use of the property;

ii. The hardship described in subsection G.4.a.i of this section is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;

iii. The design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program and will not cause adverse impacts to the shoreline environment;

iv. The variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;

v. The variance requested is the minimum necessary to afford relief; and

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

b. Shoreline variance permits, where the development will be located either waterward of the ordinary high water mark (OHWM) or within or within any wetland, defined in Chapter 16.12 BIMC, may be approved or approved with conditions or modifications subject to approval by Ecology, if the decision maker finds the applicant has demonstrated compliance with all of the following criteria:

i. The strict application of the bulk, dimensional or performance standards set forth in the applicable master program precludes all reasonable use of the property;

ii. The proposal is consistent with the criteria established under subsections G.4.a.ii through vi of this section; and

iii. The public rights of navigation and use of the shorelines will not be adversely affected.

c. In the granting of all shoreline variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if shoreline variances were granted to other developments in the area where similar circumstances exist, the total of the shoreline variances should also remain consistent with the policies of Chapter 90.58 RCW or its successor and should not produce substantial adverse effects to the shoreline environment.

5. Time Frame. Construction and activities authorized by a shoreline variance are subject to the time limitations in subsection F.5 of this section (WAC 173-27-090 or its successor).

6. Adjustments to Approved Shoreline Variance.

a. A permit revision is required whenever an applicant proposes substantive changes to the design, terms or conditions of a project from that approved as a shoreline variance. The applicant shall submit detailed plans and text describing the proposed changes in the permit and demonstrating compliance with the following minimum standards pursuant to Chapter 173-27 WAC.

b. If the proposed changes are determined by the administrator to be within the scope and intent of the original permit, and are consistent with the Act (Chapter 90.58 RCW), the shoreline guidelines (Chapter 173-26 WAC), and the shoreline master program, the revisions may be approved as a minor adjustment.

c. A minor adjustment entails a revision that is within the scope and intent of the original permit, which means all of the following:

i. No additional over-water construction is involved except that a pier, dock or floating structure may be increased by 10 percent or 500 square feet, whichever is less, over that approved under the original approval;

ii. Ground area coverage and/or height may be increased a maximum of 10 percent over that approved under the original approval; provided, that the revised approval does not authorize development to exceed the height, impervious surface, setback or any other requirements of this program except as authorized under a variance granted for the original development;

iii. Additional or revised landscaping is consistent with any conditions attached to the original approval and with this program;

iv. The use authorized pursuant to the original approval is not changed; and

v. The revision will not cause adverse environmental impacts.

d. Revisions to shoreline permits and statements of exemption may be authorized after the original authorization has expired. Revisions made after the expiration of the original approval shall be limited to changes that are consistent with this program and that would not require a permit under this program. If the proposed change is a substantial development as defined by this program, then a new permit is required. The provisions of this subsection shall not be used to extend the time requirements or to authorize substantial development beyond the time limits or scope of the original approval.

e. A new permit shall be required if the proposed revision and any previously approved revisions in combination would constitute development beyond the scope and intent of the original approval.

f. Upon approval of a revision, the decision maker shall file a copy of the revised site plan and a detailed description of the authorized changes to the original permit with the Department of Ecology together with a final ruling and findings supporting the decision based on the requirements of this section. In addition, the decision maker shall notify parties of record of the action.

g. If the proposed revision is to a development for which a shoreline variance was issued, the decision maker shall submit the revision to the Department of Ecology for approval with conditions or denial, and shall indicate that the revision is being submitted under the requirements of this subsection. Under the requirements of WAC 173-27-110(6), the Department shall render and transmit to the decision maker and the applicant/proponent its final decision within 15 days of the date of the Department’s receipt of the submittal from the decision maker. The decision maker shall notify parties on record of the Department’s final decision.

7. Appeal of Decision on Shoreline Variance. The decision of the hearing examiner may be appealed to the following the procedures of subsection I of this section.

H. Shoreline Conditional Use Permits. Where a development includes several uses or activities and one or more uses or activities require a shoreline conditional use permit, all uses and activities shall be processed and decided following the shoreline conditional use procedures.

1. Purpose. The purpose of a shoreline conditional use permit is to allow greater flexibility in applying the use regulations of the master program in a manner consistent with the policies of RCW 90.58.020 or its successor; provided, that shoreline conditional use permits should also be granted in a circumstance where denial of the permit would result in a thwarting of state policy enumerated in RCW 90.58.020 or its successor. In authorizing a conditional use, special conditions may be attached to the permit by the city or the State Department of Ecology to prevent undesirable effects of the proposed use. Uses which are specifically prohibited by the master program may not be authorized with approval of a shoreline conditional use permit.

2. Applicability.

a. Minor Conditional Use. As determined by the director, this procedure shall apply to (i) all minor conditional uses identified in Chapter 16.12 BIMC; (ii) where the director determines that the anticipated impacts of those conditional uses will be minor or minimal; or (iii) uses that are clearly consistent and compatible with other uses in the same zone or vicinity.

b. Major Conditional Use. As determined by the administrator, a major conditional use permit shall be secured from the city prior to establishing or expanding a use according to situations that include, but are not limited to: (i) the proposed use or expansion covers 50 percent or greater of the total lot area; (ii) the proposed use is accessed by a local or private road; (iii) the proposed use or expansion generates more than 36 total trips per day; (iv) the proposed use or expansion contains four or more units in a multifamily dwelling; or (v) requests for additional nonresidential building height pursuant to Chapter 16.12 BIMC.

3. Procedure.

a. Application. An application for a shoreline conditional use permit shall be submitted on a form provided by the city. The application should be accompanied by maps, a completed environmental checklist, applicable fees, and any other information specified in the master program or requested by the administrator.

b. Minor Shoreline Conditional Use.

i. The administrator shall review a minor shoreline conditional use application following procedures in subsection F.2 of this section.

c. Minor Shoreline Conditional Use. Applications for shoreline conditional uses that are more intensive than the minor shoreline conditional use as determined by the administrator shall be decided by the hearing examiner following the procedures in BIMC 2.16.100, or its successor, supplemented by the following provisions:

i. The decision of the hearing examiner shall be the final city decision, and may be appealed in accordance with subsection I of this section.

d. Notice of Application and Comment Period. In addition to the notice of application content established in BIMC 2.16.020.M, notice of application for shoreline conditional use permits must also contain the information required under WAC 173-27-110.

e. Notice of Hearing. When a public hearing is required, the procedures of BIMC 2.16.020.M.5 shall apply.

f. The administrator shall mail the final city decision to the applicant, the State Department of Ecology, and the State Attorney General. The permit must be received by the State Department of Ecology within eight days of the date of the decision. Within eight days of the date of the decision, the administrator shall also mail the decision to any person who requested notice of the decision.

g. The State Department of Ecology shall approve, approve with conditions, or deny all shoreline conditional use permits approved by the city. The State Department of Ecology’s decision must be made within 30 days of the date the permit and other information required by WAC 173-14-090 or its successor are received by the State Department of Ecology and the Washington State Attorney General. The State Department of Ecology will send a letter to the applicant and the city informing them of the decision. Upon receipt of the State Department of Ecology decision, the administrator shall notify those interested persons who requested notification.

4. Decision Criteria – Conditional Use Permit.

a. Uses classified as conditional uses may be authorized; provided, that pursuant to WAC 173-27-140 and 173-27-160 or their successors, the applicant can demonstrate all of the following:

i. The proposed use will be consistent with the policies of RCW 90.58.020 or its successor and the policies of the master program;

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

iii. That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program;

iv. The proposed use will cause no unreasonably adverse effects to the shoreline environment designation in which it is located;

v. The public interest suffers no substantial detrimental effect (WAC 173-14-140(1) or its successor); and

vi. The proposed use is consistent with the provisions of the zoning ordinance (BIMC Title 18).

b. Other uses which are not listed in the master program as permitted or conditional uses and are also not prohibited may be authorized as conditional uses, provided the applicant can demonstrate, in addition to the criteria set forth in subsection H.4.a of this section, that (i) extraordinary circumstances preclude reasonable economic use of the property in a manner consistent with the policies of RCW 90.58.020, or its successor, and that (ii) the proposed use would not produce significant adverse effects on the shoreline environment.

c. In the granting of all shoreline conditional use permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area.

5. Time Frame. Construction and activities authorized by a shoreline conditional use permit are subject to the time limitations in subsection F.5 of this section (WAC 173-27-090 or its successor).

6. Adjustments to Approved Shoreline Conditional Use Permit.

a. A permit revision is required whenever an applicant proposes substantive changes to the design, terms or conditions of a project from that approved as a shoreline conditional use permit. When a revision of a shoreline conditional use permit is sought, the applicant shall submit detailed plans and text describing the proposed changes in the permit and demonstrating compliance with the following minimum standards pursuant to Chapter 173-27 WAC.

b. If the proposed changes are determined by the administrator to be within the scope and intent of the original permit, and are consistent with the SMA (Chapter 90.58 RCW), the shoreline guidelines (Chapter 173-26 WAC), and the shoreline master program, the revisions may be approved as a minor adjustment.

c. A minor adjustment entails a revision that is within the scope and intent of the original permit, which means all of the following:

iii. Additional or revised landscaping is consistent with any conditions attached to the original approval and with this program;

iv. The use authorized pursuant to the original approval is not changed; and

v. The revision will not cause adverse environmental impacts.

e. A new permit shall be required if the proposed revision and any previously approved revisions in combination would constitute development beyond the scope and intent of the original approval.

f. Upon approval of a revision, the decision maker shall file a copy of the revised site plan and a detailed description of the authorized changes to the original permit with the State Department of Ecology together with a final ruling and findings supporting the decision based on the requirements of this section. In addition, the decision maker shall notify parties of record of the action.

g. If the proposed revision is to a development for which a shoreline conditional use or variance was issued, the decision maker shall submit the revision to the State Department of Ecology for approval, approval with conditions, or denial, and shall indicate that the revision is being submitted under the requirements of this subsection. Under the requirements of WAC 173-27-110(6), the Department shall render and transmit to the decision maker and the applicant/proponent its final decision within 15 days of the date of the Department’s receipt of the submittal from the decision maker. The decision maker shall notify parties on record of the Department’s final decision.

7. Appeal of Decision on Conditional Use Permit. The decision of the hearing examiner may be appealed to the following the procedures of subsection I of this section.

I. Shoreline Application Appeals.

1. Appeal – Administrative.

a. The decision of the administrator on shoreline exemptions or shoreline substantial development permits may be appealed to the hearing examiner within 21 calendar days following the issuance of a written decision by the administrator.

b. Appeals shall be initiated by filing with the city clerk a notice of appeal setting forth the action being appealed and the principal points upon which the appeal is based together with a filing fee as prescribed by resolution of the council.

c. If an appeal is filed, the case shall be reviewed as an open record hearing by the hearing examiner, who shall follow the procedures established in BIMC 2.16.130 or its successor.

d. The hearing examiner shall consider the criteria in subsection I.1.c of this section and may refer the application to the planning commission for a recommendation. The decision of the hearing examiner shall be the final city action.

e. Within eight days of final action by the city, including completion of appeals or expiration of appeal periods, the administrator shall file copies of the action with the Department of Ecology and the Attorney General pursuant to RCW 90.58.140(6) or its successor.

2. Appeal – Shoreline Variance and Shoreline Conditional Use Permits.

a. If a shoreline variance or shoreline conditional use permit is denied by the city, the 21-day appeal period begins on the day the denied permit or shoreline variance and other information required by RCW 90.58.140(6) or its successor are received by Ecology and the Attorney General.

b. If a shoreline variance or shoreline conditional use permit is approved by the city, the 21-day appeal period begins on the day the shoreline variance or conditional use permit is approved or denied by Ecology.

c. During the appeal period, the city and/or Ecology decision on the permit may be appealed to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 or its successor. The applicant or any other party authorized to conduct activities or uses by the decision shall not begin construction, development, or any authorized use or activity until after the 21-day appeal period. Construction or use may occur during the time a court appeal is underway, provided (i) the permit was approved by the local government and the State Shorelines Hearings Board, and (ii) permission is granted for the construction, use or activity under RCW 90.58.140(5) or its successor.

3. Washington State Department of Ecology Appeal Period.

a. On the day the permit and other information required by WAC 173-27-090 or its successor are received by Ecology and the Attorney General, the 21-day appeal period begins. (Ecology generally sends a letter to the administrator and the applicant informing them of the date the application was received.)

b. During the 21-day appeal period, the city decision on the permit may be appealed to the Washington State Shorelines Hearings Board as provided by RCW 90.58.180 or its successor and Chapter 461-08 WAC or its successor.

c. Development pursuant to a shoreline permit shall not begin and is not authorized until 21 days from the date of filing, as defined in RCW 90.58.140(5)(b) and (c) or its successor and WAC 173-27-090 or its successor, or until all review proceedings initiated within 21 days from the date of such filing have been terminated, except as provided in RCW 90.58.140(b) or its successor. (Ord. 2020-03 § 1 (Exh. A), 2020; Ord. 2014-04 § 5 (Exh. 3 § 3), 2014)