16.05.090 Shoreline permit procedures | Covington Municipal Code

16.05.090 Shoreline permit procedures.

(a) A substantial development shall not be undertaken within the jurisdiction of the SMA, Chapter 90.58 RCW, and this master program unless a shoreline substantial development permit has been obtained and the appeal period has been completed and any appeals have been resolved and/or the applicant has been given permission to proceed by the proper authority.

(b) Unless specifically exempted by statute, all proposed uses and development occurring within shoreline jurisdiction shall conform to Chapter 90.58 RCW, the Shoreline Management Act and this master program whether or not a permit is required.

(a) Applicants shall apply for shoreline substantial development, variance, and conditional use permits and/or letter of exemption on forms provided by the City.

(b) Completed application documents for all shoreline permits shall be submitted to the Administrator for processing and review. Any deficiencies in the application or document shall be corrected by the applicant prior to further processing.

(c) Application fees in an amount set forth in the current fee resolution shall be paid to the City of Covington at the time of application. Fees shall include but not be limited to cost recovery for engineering and planning review time, site inspection time, administration, third-party peer review, and any other special costs attributable to the shoreline master program review process.

(a) A notice of application shall be issued for shoreline permit applications as provided for in CMC 14.35.040 and permit notice shall occur pursuant to Chapter 14.40 CMC, as amended, except that the public comment period for a substantial development permit, variance, or conditional use shall be no less than 30 days.

(b) The City shall send a notice of application to the Muckleshoot Tribe Fisheries Division for all projects seeking approval under the SMP, including shoreline exemptions.

(c) The Administrator shall be responsible for delivering the legal notice containing the information required by WAC 173-27-110 to the newspaper to be published at least once a week on the same day of the week for two consecutive weeks in a newspaper of general circulation within the area in which the development is proposed. Advertising costs shall be the responsibility of the applicant.

(i) Any person claiming exemption from the shoreline substantial development permit requirements under CMC 16.05.050(1)(a) shall make an application to the Shoreline Administrator for a letter of exemption. All proposals for activities that are exempt from the substantial development process should be documented with an exemption letter from the city that spells out what is included as part of the exemption. Site plans should be included.

(ii) If any part of a proposed development is not eligible for exemption, then a shoreline substantial development permit is required for the entire proposed development.

(i) If the exemption is approved, the Shoreline Administrator shall prepare and transmit a letter of exemption (LOE), addressed to the applicant and Department of Ecology, indicating the specific applicable exemption provisions from WAC 173-27-040 and providing a summary of the project’s consistency with this master program and the Act. A copy of the LOE shall be maintained on file by the City.

(ii) The Shoreline Administrator may attach conditions and/or mitigating measures to the LOE to achieve consistency and compliance with the provisions of this master program and the Act.

(a) Purpose and Applicability. Unless exempted under CMC 16.05.050 or otherwise classified by this master program as requiring a shoreline conditional use permit, uses that are classified or set forth as permitted uses in the master program shall require authorization under a shoreline substantial development permit.

(b) Review Criteria. Uses that are classified or set forth as permitted uses in the master program may be authorized, provided the applicant demonstrates consistency with all of the following substantial development criteria, as listed in WAC 173-27-150:

(i) Consistency with the policies and procedures of the Shoreline Management Act;

(ii) Consistency with the provisions of Chapter 173-27 WAC; and

(iii) Consistency with this master program.

(i) The purpose of a conditional use permit is to provide a system within the master program that allows flexibility in the application of use regulations in a manner consistent with the policies of RCW 90.58.020.

(ii) In authorizing a conditional use, special conditions may be attached to the permit by the City of Covington or the Department of Ecology to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the Act and the master program.

(iii) Uses that are not classified or set forth in this master program may be authorized as conditional uses provided the applicant can demonstrate consistency with the requirements of this section and the requirements for conditional uses contained in the master program.

(iv) Uses that are specifically prohibited by this master program may not be authorized with the approval of a conditional use permit.

(i) Uses that are classified or set forth as conditional uses in the master program may be authorized, provided the applicant demonstrates consistency with all of the following conditional use criteria, as listed in WAC 173-27-160:

(A) That the proposed use is consistent with the policies of RCW 90.58.020 and the master program;

(B) That the proposed use will not interfere with the normal public use of public shorelines;

(C) 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 this master program;

(D) That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and

(E) That the public interest suffers no substantial detrimental effect.

(ii) In the granting of all conditional use permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the total of the conditional uses shall also remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment.

(i) The purpose of a variance permit is strictly limited to granting relief to specific bulk, dimensional, or performance standards set forth in the master program, and 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 SMA policies as stated in RCW 90.58.020.

(ii) These provisions should be applied in a manner which, while protecting the environment, will assure that a person will be able to use his/her property in a fair and equitable manner.

(iii) Variances from the use regulations of this master program are prohibited.

(i) An application for a shoreline variance shall be submitted on a form provided by the City accompanied by maps, completed environmental checklist, applicable fees, and any other information specified in this master program or requested by the Administrator.

(ii) An applicant for a substantial development permit who wishes to request a variance shall submit the variance application and the substantial development permit application simultaneously.

(i) Variance permits for development that will be located landward of the ordinary high water mark and landward of any wetland may be authorized provided the applicant can demonstrate consistency with the following variance criteria, as listed in WAC 173-27-170:

(A) That the strict application of the bulk, dimensional, or performance standards set forth in the master program precludes, or significantly interferes with, reasonable use of the property;

(B) That the hardship described above 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;

(C) That the design of the project is compatible with other permitted activities within the area and with uses planned for the area under the comprehensive plan and master program and will not cause adverse impacts to the shoreline environment;

(D) That the variance will not constitute a grant of special privilege not enjoyed by the other properties in the area;

(E) That the variance requested is the minimum necessary to afford relief; and

(F) That the public interest will suffer no substantial detrimental effect.

(ii) Variance permits for development and/or uses that will be located waterward of the ordinary high water mark or within any wetland may be authorized provided the applicant can demonstrate consistency with the following variance criteria:

(A) That the strict application of the bulk, dimensional, or performance standards set forth in the master program precludes all reasonable use of the property;

(B) That the proposal is consistent with the criteria established under subsection (7)(c)(i) of this section; and

(iii) In the granting of all variance permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted to other developments and/or uses in the area where similar circumstances exist, the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall not cause substantial adverse effects to the shoreline environment.

(a) Shoreline exemptions are a Type 1 process application, shoreline substantial development permits are a Type 2 process application, shoreline conditional use permits and shoreline variances are a Type 3 process application and shoreline environment redesignations are a Type 4 process application. All applications shall be processed in accordance with the applicable regulations of Chapters 14.30 and 14.35 CMC, as amended.

(i) The burden of proving that a proposed development is consistent with the approval criteria and master program policies and regulations rests with the applicant.

(ii) The Shoreline Administrator shall make recommendations in the case of variance and conditional use permits, and decisions in the case of substantial development permits, exemptions, or requests for revisions to approved permits based upon: (A) the policies and procedures of the Shoreline Management Act and related sections of the Washington Administrative Code; and (B) this SMP.

(i) The Covington Hearing Examiner shall make the final decision at the local level for conditional use and variance and shoreline redesignation applications.

(ii) The Covington Hearing Examiner shall review the recommendations prepared by the Covington Shoreline Administrator and make the final decision to approve, approve with conditions, or deny the permit applications based upon: (a) this SMP; (b) the policies and procedures of the Shoreline Management Act and related sections of the Washington Administrative code; (c) written and oral comments from interested persons; and (d) reports from the Shoreline Administrator. The Hearing Examiner is subject to the procedures and requirements contained in Chapters 2.25, 14.30, 14.35, 14.40, and 14.45 CMC, as amended.

(i) After City approval of a conditional use or variance permit, the City shall submit the permit to the Department of Ecology for approval, approval with conditions, or denial. The Department of Ecology shall render and transmit to the City and the applicant its final decision approving, approving with conditions, or disapproving the permit within 30 days of the date of submittal by the City pursuant to WAC 173-27-110.

(ii) The Department of Ecology shall review the complete file submitted by the City on conditional use and variance permits and any other information submitted or available that is relevant to the application. The Department of Ecology shall base its determination to approve, approve with conditions or deny a conditional use permit or variance on consistency with the policy and provisions of the Shoreline Management Act and, except as provided in WAC 173-27-210, the criteria in WAC 173-27-160 and 173-27-170. The City and the Department of Ecology may, in addition, apply the more restrictive criteria where they exist in the shoreline master programs.

(iii) The City shall provide timely notification of the Department of Ecology’s final decision to those interested persons having requested notification from the City pursuant to WAC 173-27-130.

(9) Financial Guarantee. To guarantee that conditions imposed in conjunction with permit approval are completed, the City may require the applicant to post a performance bond or other financial guarantee in an amount satisfactory to the City. Any such bond or guarantee shall be from a reputable bonding company in a form acceptable to the City Attorney.

(a) Commencement of Activity. If a permit is approved, 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 21 days after the permit is filed with the Department of Ecology pursuant to subsection (12) of this section and any appeals are concluded.

(b) Duration of Permits. The time requirements of this section shall apply to all substantial development permits and to any development authorized pursuant to a variance or conditional use permit authorized by this chapter. Upon a finding of good cause, based on the requirements and circumstances of the project proposed and consistent with the policy and provisions of this master program, the City may adopt different time limits from those set forth in subsections (10)(b)(i) and (ii) of this section as a part of action on a substantial development permit.

(i) Construction activities shall be commenced or, where no construction activities are involved, the use or activity shall be commenced within two years of the effective date of the permit.

(ii) Authorization to conduct development activities shall terminate five years after the effective date of the permit: provided, that the City may authorize a single extension before the end of the time limit, if a request for extension has been filed before the expiration date and with prior notice to parties of record and the Department of Ecology, for up to one year based on reasonable factors.

(iii) The running of a permit time period shall not include the time during which an activity was not actually pursued due to the pendency of reasonably related administrative appeals or legal action or due to the need to obtain any other government permits and approvals for the development that authorize the development to proceed, including all reasonably related administrative or legal actions on any such permits or approvals.

(iv) When permit approval is based on conditions, such conditions shall be satisfied prior to occupancy or use of a structure or prior to commencement of a nonstructural activity; provided, that an alternative compliance limit may be specified in the permit.

(a) When Required. A permit revision is required whenever the applicant proposes substantive changes to the design, terms or conditions of a project from that which is approved in the permit. Changes are substantive if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the master program or the policies and provisions of Chapter 90.58 RCW. Changes that are not substantive in effect do not require approval of a revision.

(b) Submittal Materials. When an applicant seeks to revise a substantial development, conditional use, or variance permit, the Shoreline Administrator shall request from the applicant detailed plans and text describing the proposed changes.

(i) If the Shoreline Administrator determines that the proposed changes are within the scope and intent of the original permit, and are consistent with this master program and the Act, the Shoreline Administrator may approve a revision. “Within the scope and intent of the original permit” means the following:

(A) No additional overwater construction is involved except that pier, dock, or float construction may be increased by 500 square feet or 10 percent from the provisions of the original permit, whichever is less.

(B) Ground area coverage and height may be increased a maximum of 10 percent from the provisions of the original permit.

(C) The revised permit does not authorize development to exceed height, lot coverage, setback, or any other requirements of this master program except as authorized under a variance granted as the original permit or a part thereof.

(D) Additional or revised landscaping is consistent with any conditions attached to the original permit and with this master program.

(E) The use authorized pursuant to the original permit is not changed.

(F) No adverse environmental impact will be caused by the project revision.

(ii) Revisions to permits may be authorized after original permit authorization has expired under RCW 90.58.143. The purpose of such revisions shall be limited to authorization of changes which are consistent with this section and which would not require a permit for the development or change proposed under the terms of Chapter 90.58 RCW and this shoreline master program. If the proposed change constitutes substantial development then a new permit is required. Provided, this subsection shall not be used to extend the time requirements or to authorize substantial development beyond the time limits of the original permit.

(iii) If the sum of the revision and any previously approved revisions under former WAC 173-27-100 or this section violate the provisions in subsection (11)(c)(i) of this section, the City shall require that the applicant apply for a new permit.

(i) The revision approval, including the revised site plans and text consistent with the provisions of WAC 173-27-180 as necessary to clearly indicate the authorized changes, and the final ruling on consistency with this section, shall be filed with the Department of Ecology. In addition, the Shoreline Administrator shall notify parties of record of their action.

(ii) If the revision to the original permit involves a conditional use or variance, the Shoreline Administrator shall submit the revision to the 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. The Department of Ecology shall render and transmit to the Shoreline Administrator and the applicant its final decision within 15 days of the date of the Department of Ecology’s receipt of the submittal from the Shoreline Administrator. The Shoreline Administrator shall notify parties of record of the Department of Ecology’s final decision.

(e) Effective Date. The revised permit is effective immediately upon final decision by the Shoreline Administrator or, when appropriate under subsection (11)(d)(ii) of this section, upon final action by the Department of Ecology.

(12) Rulings to State. Any ruling on an application for a shoreline permit under authority of this master program, whether it is an approval or denial, shall, with the transmittal of the ruling to the applicant, be filed concurrently with the Department of Ecology. Filing shall occur in accordance with RCW 90.58.140(6) and WAC 173-27-130, as amended.

(i) Any decision made by the Administrator on a letter of exemption, master program policy or regulation interpretation, permit revision, or other action within the responsibility of the Administrator, may be appealed by the applicant, private or public organization, or individual to the Hearing Examiner within 14 calendar days following the issuance of a written decision by the Administrator, or otherwise becomes effective.

(ii) Such appeals shall be initiated by filing with the Administrator 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 ordinance.

(i) Any person aggrieved by the granting or denying of a substantial development permit, variance, or conditional use permit, the upholding of an exemption appeal, or by the rescinding of a permit pursuant to the provisions of this master program, may seek review from the State of Washington Shorelines Hearing Board by filing a request for the same within 21 days of the date of filing as defined in subsection (13)(b)(ii) of this section and by concurrently filing copies of such request with the Department of Ecology and the Attorney General’s office.

(ii) Consistent with RCW 90.58.140(6), the date of filing is defined as follows:

(A) For projects that only require a substantial development permit: the date that the Department of Ecology receives the City decision.

(B) For a conditional use permit or variance: the date that the Department of Ecology’s decision on the conditional use permit or variance is transmitted to the applicant and the City.

(C) For shoreline substantial development permits simultaneously mailed with a conditional use permit or variance to the Department of Ecology: the date that the Department of Ecology’s decision on the conditional use permit or variance is transmitted to the applicant and the City.

(iii) A copy of such appeal notice shall also be filed with the City of Covington Shoreline Administrator.

(iv) State Hearings Board regulations are provided in RCW 90.58.180 and Chapter 461-08 WAC. (Ord. 09-19 § 6 (Exh. C))