18.65.075 Reasonable use exception | Covington Municipal Code

18.65.075 Reasonable use exception.

(1) If the application of this chapter would deny all reasonable use of the property, the applicant may apply for an exception pursuant to this section upon payment of the fee as set forth in CMC 18.65.046. The exception shall not be granted for properties wholly or partially located within a shoreline of the State as regulated in Covington’s SMP as regulated in Chapter 16.05 CMC or floodplain as regulated in Chapter 16.15 CMC.

(2) Reasonable use exceptions do not apply in the City’s shoreline jurisdictions. Exceptions within the City’s shoreline jurisdictions are processed as a shoreline permit or variance pursuant to CMC 16.05.090.

(3) A reasonable use exception is a Type 3 permit process. The Director shall prepare a staff report to the Hearing Examiner for a decision.

(4) A reasonable use exception request shall be on a form as determined by the City and shall include a critical area report in accordance with CMC 18.65.110. The critical area report shall address the following additional criteria:

(a) An analysis of whether any other reasonable use with less impact on the critical area and critical area buffer is possible;

(b) Site design and construction staging of the proposal shall have the least impact to the critical area and critical area buffer;

(i) Buildings;

(ii) Garages and parking areas;

(iii) Driveways;

(iv) Paved surfaces, such as walking paths;

(v) Patios, decks, and similar structures;

(vi) Location of utility and stormwater improvements and easements;

(vii) Yard landscaping; and

(viii) Retaining walls and rockeries;

(d) A description of protective measures that will be undertaken to avoid interference with wildlife and fisheries rearing, nesting, or spawning activities;

(e) An analysis of the impact that the proposed development would have on the critical area and the critical area buffer;

(f) How the proposal mitigates for impacts to the critical areas and buffers;

(g) How the proposal minimizes to the greatest extent possible net loss of critical area functions;

(h) Whether the improvement is located away from the critical area and the critical area buffer to the greatest extent possible; and

(i) City may request additional information or studies necessary to make a recommendation.

(5) The Hearing Examiner shall review the application and staff report and hold a public hearing pursuant to Chapter 2.25 CMC and CMC Title 14. The Hearing Examiner shall base the decision on the following criteria:

(a) The application of this chapter would deny all reasonable use of the property; and

(b) There is no other feasible or reasonable use or on-site alternatives with less impact on the critical area, such as changes to site layout and/or reduction of impervious improvements; and

(c) It is solely the implementation of this chapter, and not other factors, that precludes all reasonable use of the subject property; and

(d) The applicant has in no way created or exacerbated the condition that forms the limitation on the use of the subject property, nor in any way contributed to such limitation; and

(e) The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site and is consistent with the general purposes of this chapter and the public interest; and

(f) Any alterations permitted to the critical area shall be the minimum necessary to allow for reasonable use of the property; and

(g) The granting of the exception will not grant the applicant any special privilege that is denied by this chapter to other lands, buildings, or structures under similar circumstances.

(6) If the City grants a request under this section, it shall grant the minimum necessary to provide the applicant with some reasonable use of the subject property, considering the factors described in subsections (5)(a) through (g) of this section. Any approval or waiver of requirements shall result in the minimum possible impacts to the function and values and/or risks associated with proposed improvements on affected critical areas. The City may impose limitations, mitigation under an approved mitigation plan, conditions and/or restrictions it considers appropriate to reduce or eliminate any undesirable effects or adverse impacts of granting a request under this section.

(7) The reasonable use exception approval expires and is void if the applicant fails to file a complete building permit application within five years of the final decision granting or approving the exception.

(8) The City may approve a subsequent modification to a specific use and site plan that has been approved through the reasonable use exception, provided the change meets the standards of this chapter. Otherwise, the applicant is required to apply for and obtain approval through a Type 2 land use process pursuant to Chapter 14.35 CMC for a new reasonable use exception. (Ord. 09-19 § 9 (Exh. D); Ord. 06-17 § 4 (Exh. B))