HomeMy WebLinkAbout09/20/2011 PACKET(DRAFT) AGENDA
Regular Meeting - Bremerton Planning Commission
(Subject to PC approval)
September 20, 2011
5:30 P.M.
th
345 – 6Street
Meeting Chamber – First Floor
I. CALL TO ORDER
II. ROLL CALL (quorum present)
III. APPROVAL OF THE AGENDA
IVAPPROVAL OF MINUTES:
July 19, 2011 Regular meeting.
o
V. PUBLIC MEETING
A. Call to the Public:
Public comments on any item not on tonight’s agenda
B. Workshop
1. Shoreline Master Program Update:
a.Authority and Purpose
b.Administration
c.Non-conformities
VI. BUSINESS MEETING
A. Chair Report:
Chairman Hoell
B. Director Report:
Andrea Spencer.
C.Old Business:
D.New Business
VII.ADJOURNMENT: The next regular meeting of the Planning Commission is
October 18, 2011
Planning Commission meeting packets are available on-line at
www.ci.bremerton.wa.us
DRAFT FOR APPROVAL ON 09/20/11
Minutes for
City of Bremerton Planning Commission
Regular Meeting
July 19, 2011
I. Call to Order
Chairman Hoell
The meeting was called to order by at 5:35 p.m.
II. Roll Call
Those present were: Commissioner Cockburn, Commissioner Jose, Commissioner Tift, and
Chairman Hoell. Commissioners Lambert and Streissguth had been excused. Quorum certified.
Also present: SMP Consultant, David Sherrard, (Parametrix), Andrea Spencer, Nicole Floyd, and
Pam Bykonen (DCD staff).
III. Approval of Agenda
Chairman HoellA motion was made by Commissioner Jose and
introduced the agenda.
seconded by Commissioner Cockburn to approve the agenda as presented
. It was agreed by
general consensus to approve the agenda as presented.
IV. Approval of Minutes
The minutes of the Regular Meeting held on May 17, 2011 were presented for approval by
Chairman HoellA motion was made by Commissioner Tift and seconded by
.
Commissioner Jose to approve the Regular Meeting Minutes of May 17, 2011 as presented.
Called for a vote: Commissioner Cockburn: Yes; Commissioner Jose: Yes; Commissioner Tift:
Yes; Chairman Hoell: Yes. The motion carried.
V. Public Meeting
A.Call To The Public.
(public comments on any item not on tonight’s agenda)
Chairman Hoell
asked if there were any comments from citizens. Seeing none, she
closed this portion of the meeting.
BWorkshop – Shoreline Master Program Update – Regulations and
.
Designation Policies:Nicole Floyd, City Planner
Using a Powerpoint presentation, ,
reviewed the most recent updates to the Shoreline Master Program (SMP). Topics
covered at this workshop were Mapping, the Citizen Advisory Group (CAG), and
General Standards. A mapping exercise had been planned but the map projection did not
clearly show the shoreline areas to be discussed so Nicole moved on to the next portion
of the workshop, the Citizen Advisory Group’s work on code creation The shoreline
Planning Commission Meeting July 19, 2011 Page 1 of 8
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codes were drafted by city staff and Parametrix, the consultant group hired to work on
Bremerton’s shoreline code update. Using the Department of Ecology’s (DOE)
requirements, Bremerton’s shoreline inventory and characterization, the existing
shoreline code, and examples from other jurisdictions, staff and Parametrix created a
document to be reviewed by the Citizen Advisory Group for additional input. A
summary of the CAG’s comments was included in the meeting packet.
Three chapters of the draft code were to be reviewed at this workshop. The first was
General Standards, specifically BuffersandSetbacks,VegetationConservation, and
PublicAccess. Nicole used several pictures to illustrate what a buffer is, how differing
buffer measurement techniques could affect properties, and examples of preferred aquatic
vegetation management. Exemptions from the proposed buffer requirements will be
discussed in greater depth at a future workshop.
The draft document proposes that public access to the shoreline be required for all
shoreline development except single-family developments of less than five houses, or if
an unavoidable security or safety risk results from that access. Public access easements
would be required for all shoreline development except single-family homes unless the
structure is greater than twenty-five feet but not more than thirty-five feet. View
corridors would only be required in the downtown area or new multi-family or
commercial developments.
The second chapter reviewed was Use Regulations. For this workshop, Nicole focused
onCommercial,Industrial,and Residential Developments, and Marinas and Boating
Facilities. DOE has determined that any commercial or industrial development located
on the shoreline must be water dependent. If a development is not water dependent but
wants to be located within the 200-foot shoreline jurisdiction, it must prove it needs to be
located on the shoreline and either be physically separated from the shoreline, have
severely limited navigability, or provide a significant public benefit.
The proposed regulations for marinas call for upland boat storage unless no upland area is
available, provide public access, and have no net loss of habitat function.
DOE considers Single-Family Residential a priority use along the shoreline. The draft
regulations propose that Multi-Family Residential developments will be allowed if a
significant public benefit or be mixed with a water related use is provided. Subdivisions
with five or more lots must provide public access, either physical or visual, to the
shoreline.
The last chapter reviewed was ShorelineModifications which included Docks, Piers, and
In-water Structures, and Shoreline Stabilization (bulkheads). The proposed regulations
would allow docks, piers, and in-water structures for water dependent uses and single-
family residential only after alternatives have been addressed. Light penetrating
materials must be used and no net loss achieved. Shared docks are required for
subdivisions with five or more lots; access to the shared dock must be provided. Over-
water structures would be prohibited in areas of Aquatic Conservancy, although mooring
buoys would be allowed.
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Proposed regulations for bulkheads would include a series of steps showing a need for a
bulkhead (hard armoring). Issues such as upland drainage, a need for additional
vegetation, use of woody debris and/or woody debris with rocks must be considered
before constructing hard armoring along a shoreline.
Chairman Hoell
asked if there were any comments from citizens.
Karen Danis
(Jacobsen Boulevard), expressed concern regarding the limitations placed
upon owners of property that will be designated Aquatic Conservancy although she is
pleased that mooring buoys will be acceptable and wondered if floats would be
acceptable as well in shallow waters where swimmers would be. Ms. Danis has tried to
increase public awareness through Neighborhood Block Watch groups and the Kitsap
Sun, although the Kitsap Sun was not as responsive as she would have liked. She felt
that if the reporter waited until the Public Hearing for final approval by City Council to
report on the update, it will have been too late. She suggested informing council
members with constituents on shorelines regarding the SMP update. She stressed the
point that Bremerton residents don’t like surprises regarding property rights.
Alan Beam
(Manette), said he hadn’t seen any science presented regarding what the
natural vegetation is and the ecological functions the natural vegetation is going to
protect. He wondered why his lawn was not “good enough” vegetation. He stated that
bulkheads were needed in his neighborhood because of the Washington State Ferries and
that bulkheads are benign instruments that reflect energy. He takes a different view from
DOE because he thinks erosion and beach feeding from his property is a net loss of his
yard and worries about the ability to protect his yard. He feels that existing development
needs to be considered and it has been “bypassed entirely”. He questioned what was to
be done with the existing development that has already occurred along Bremerton’s
shorelines. He wanted to know how [the SMP update] was going to affect him and other
citizens.
Karen Danis
(Jacobsen Boulevard), shared Mr. Beam’s concern regarding the science
used for making decisions [about the shoreline management update]. She believes that
[decision makers] need to be reasonably certain of the resulting impacts of those
decisions before making changes in shoreline uses and it should be science based. She
also feels that the proposed dock requirements are too strong and it is not possible to
prove that no net loss of ecological function would occur and it is an unachievable
standard. Ms. Danis understands the dock regulations are a DOE requirement and
suggested listing alternatives that would meet the requirements. She referred to other
jurisdictions such as Kirkland or Renton who have used the term “no significant impact”
rather than no net loss to make the goal more achievable. Ms. Danis appreciated the
work Nicole has done regarding variable buffers because it showed a more practical
approach.
Chairman Hoell
asked if there were any further comments from citizens. Seeing none,
she closed this portion of the meeting.
Commissioner TiftNicole
asked staff where the term “no net loss” came from.
explained that it was a term used by the Department of Ecology because other statements
Planning Commission Meeting July 19, 2011 Page 3 of 8
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such as “no significant impact” implies the use of differing standards of measurement
each time a project is analyzed. DOE’s requires that new shoreline development prove
Commissioner Hoell
no net loss of ecological functions. asked how no net loss can be
David Sherrard, Parametrix
proven., explained that the “no net loss” provision came
from a long history of Growth Management hearing board decisions about critical areas
and those decisions became the standards by which jurisdictions were required to meet
when adopting critical area regulations. When new shoreline regulations were being
negotiated, the deciding committee included the standards that had been developed over
the previous decade. Regulations have to be applied to individual development and be
able to demonstrate that the regulations that Bremerton will be adopting will
cumulatively meet the standard of no net loss. Mr. Sherrard did not feel that using the
standard “no significant impact” was appropriate because “significant impact” is the
commonly used level at which an environmental impact statement is required and is a
much higher requirement level than “no net loss”. He felt the use of “no net loss”
encouraged the use of new information and techniques, such as grating and limiting the
size of docks, without the need to amend the code. Although the additional aspect of
performance standards increased the difficulty of achieving “no net loss”, Mr. Sherrard
felt it was “doable”.
Commissioner Jose
asked for a clear description of the process a property owner would
Mr
have go through to demonstrate “no net loss” and examples of how it would be met. .
Sherrard
said it would be an administrative procedure the City would have to work out
but assumed it would be similar to a SEPA (State Environmental Protection Act) review
or an environmental checklist. He spoke at length about the necessity for protecting areas
Commissioner Jose
of high ecological function such as the Gorst Estuary. asked for
further clarification on how a property owner can prove that there will be “no net loss”.
Nicole
explained that the property owner will have to hire a biologist to review the
project and submit a report that will contain details of how the project will achieve “no
net loss”; this is similar to current requirements for shoreline development.
Nicole
asked the Commission for comments on buffers and vegetation conservation,
specifically the increase in vegetation conservation requirements to justify a reduction in
buffers.
Commissioner Cockburn
asked where a retaining wall/bulkhead would be located in a
Nicole
designated buffer area and how was its location measured. said that buffers are
measured from the ordinary high water mark. If there is a bulkhead on the shoreline, the
bulkhead becomes the ordinary high water mark.
Commissioner Jose
was in favor of the flexibility the variable buffer option provided in
the code. He felt that the more flexibility that can be offered to citizens, the better, as
long as the goals can be achieved as it relates to the prescriptive standard versus
performance standards.
Nicole
asked for input regarding the proposed percentages used in the variable buffers.
Chairman Hoell
commented that using percentages to determine buffers seemed logical.
She asked if the proposed code change would be applied retroactively to existing
Nicole
development. said it would not; it would only apply to new development or
Planning Commission Meeting July 19, 2011 Page 4 of 8
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Commissioner Tift
substantial remodels, not general maintenance or minor additions.
Nicole
asked if that rule applied to bulkheads as well. said it would, unless more than
one year had passed before a demolished bulkhead is replaced.
Commissioner TiftNicole
asked how much of Bremerton’s shoreline was undeveloped.
said more than 20% but less than 50% of the shoreline did not have bulkheads or houses,
but she did not have exact numbers.
Commissioner Tift
wondered about Ms. Danis’ suggestion about notifying council
Andrea Spencer, Director of
members who have shorelines within their district.
Community Development,
explained that four council members (Maupin, Wofford,
Robinson, and Wheeler) sit on the Planning Committee where they are apprised of
upcoming items originating in Community Development, including the Shoreline Master
Program update. The committee members report back to the full council the information
they receive at the committee meetings. Staff is available to participate in district
Chairman Hoell
meetings but have not yet received a request to do so. suggested
reporting back to the Planning Committee the public comments regarding lack of
communication to shoreline property owners.
Commissioner
Regarding the proposed percentage option for determining buffer size,
Jose
reiterated his approval of the flexibility, but was concerned about the maximum size
Chairman Hoell
for buffers on large lots resulting in overly large buffers. also approved
of the percentage option’s flexibility but was concerned about remaining fair and
Commissioner Jose
equitable. urged staff to avoid being inflexible unless DOE’s
Nicole
requirements forces the City to do so. said that the DOE has not been clear
regarding vegetation requirements within a buffer but samples of other jurisdictions’
SMP updates consistently show that smaller buffers have denser vegetation.
Commissioner Tift
expressed concern for property owners that have deep lots with a
requirement for a 100-foot buffer, specifically that a buffer that deep would defeat the
NicoleMr. Sherrard
purpose of owning waterfront property. and both stated that a
maximum buffer size of 100-foot was the standard in jurisdictions throughout the state.
CommissionerTift
asked if the location of a shoreline property owner’s neighbors’
homes would be taken into consideration when determining the depth of a new buffer
area. For example, if the neighbors’ homes were immediately adjacent to the shoreline,
Mr. Sherrard
would a new home be required to have a significantly larger buffer? said
that it made sense to look at adjacent buffers and would look into having a provision in
Nicole
the code for anomalies, perhaps with a reference to averaging the buffer size.
added that a similar provision is currently in the zoning code.
Nicole
moved on to height limits, public access to shorelines in residential areas, and
Commissioner Jose
view corridors. asked what was the percentage of shorelines
Nicole
properties already had public access/easements. said most likely there were none,
Mr. Sherrard
but there may be easements depending on when the lots were platted.
added that the State of Washington sold tidelands up until the 1950s. The proposal of
requiring public access was in response of homeowners desiring structure heights of more
than 25-feet but less than 35-feet, especially in areas where there are normally views of
the water.
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PlanningCommission
Reflecting on his years with the and the controversy view
CommissionerCockburn
corridor requirements created, felt the best solution would be
to focus on lot coverage and a 25-foot building height limit for shoreline properties. He
questioned the perceived benefit of the public access requirement if the lot that is
required to provide public access is surrounded by lots that are not.
Chairman HoelCommissionerCockburn’s
l agreed with assessment. She asked Nicole
if the core issue was actually access to the shore or the loss of shoreline views; if it was
because of the loss of views then Chairman Hoell would support a height limit of 25-feet.
Nicole
explained that most people with a 25-foot height limit prefer a greater height for
architectural reasons such as roof pitch. Also, there are areas in the city where the
buildable land projecting into the water is so narrow that there is only room for one road
with a single row of houses on either side; no views would be blocked if there were
greater building heights. Nicole asked the Commission to considered greater building
Chairman Hoell
heights under those conditions. added that the code would continue its
basis of flexibility if surrounding properties were considered when making a height
Nicole
determination for shoreline development. noted that the current code makes
similar provisions for height limits along the shoreline but felt the language could be
clarified.
Commissioner Jose
suggested using the 25-foot height requirement/35-foot with public
access as an example to DOE of protecting the social “no net loss” of public access to the
Mr.
shoreline. He supports provisions that encourage public access easements.
Sherrard
noted that DOE does not have a requirement for no net loss of public access or
Commissioner Tift
views.commented that he was fine with how the draft document
was worded regarding a 35-foot height restriction combined with requiring public access.
Nicole
asked for the commissioners’ opinion of a view corridor requirement.
CommissionerJose
said that if view corridors were a continuing problem, he would
support removing that requirement.
Nicole
The next item for discussion was new standards and prohibitions for docks. noted
that most of the language is mandated by the Department of Ecology but she wanted to
give the Commission an opportunity to discuss the proposed requirements.
Chairman Hoell
asked for additional information on the requirement for shared docks in
Nicole
new subdivisions of five or more lots. explained that the new proposal is meant to
reduce the number of private docks in higher density areas which will reduce water
Mr. Sherrard
shading and improve fish habitat. added that the requirement has been a
part of the DOE rules since 1975 and is a requirement for any subdivision regardless of
the size of the subdivision with the assumption that any dock constructed will be shared
among the residents of the subdivision and built to the minimum requirement to reduce
over-water shading and ecological impact. A biological study would determine how
Commissioner Jose
large a dock could be. asked how much a typical biological study
Nicole
would cost. said it depends on the size and extent of the project but can range
from $500 to $3,000 and is currently required for shoreline development.
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The final item for discussion was bulkheads. Referring to Mr. Beam’s comments at the
Commissioner Jose
start of the meeting regarding wakes created by ferries, asked to
Mr. Sherrard
what degree wakes were accounted for in the SMP. spoke about wave
action and how it can affect shoreline property. Waves, wakes, and land orientation
relative to the water are all conditions that are considered by a consultant/biologist when
determining if a bulkhead is needed and to what degree (soft armoring versus hard
armoring). Bulkheads are subject to public comments from local tribes, scientists,
Department of Natural Resources, etc. and must be approved by DOE.
Commissioner Cockburn
asked if marinas in residential areas are subject to a
Nicole
Conditional Use permit in the current code. said they are.
There were no further questions for staff regarding this portion of the SMP document.
Andrea
summarized the Commission’s comments:
Buffers:
The Commission liked the flexibility of using a percentage of the lot size to
¥
determine the buffer size;
Smaller buffers of higher quality were encouraged;
¥
Requested staff to further explore how to implement setback averaging.
¥
Public Access:
More research is needed regarding a 25-feet height limit versus a 35-foot height
¥
limit because of roof pitch and higher quality architecture.
Requested staff to further explore how to implement preservation of upland
¥
views.
Approved removing the view corridor requirement for single-family residential.
¥
Docks:
No comments.
¥
Bulkheads:
No comments.
¥
Commissioner Jose
expressed appreciation on behalf of the entire Commission for the
SMP Citizen Advisory Group’s time and hard work on the draft document.
VI. Business Meeting
A.Chairman’s Report:None
.
B.Director’s Report: Andrea
also thanked Nicole and the members of the Citizens
Advisory Group for their hard work on this project.
Beginning July 24, 2011, the Manette Bridge will close to pedestrian traffic for two
weeks and vehicular traffic until mid-November, when the new Manette Bridge is
scheduled to open.
th
The cinema project that will be built on the parking garage located at 4 Street and Park
Avenue is scheduled for its second presentation before the Design Review Board on July
28, 2011. Construction is anticipated to begin in August.
Planning Commission Meeting July 19, 2011 Page 7 of 8
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A grading permit has been issued for the new WinCo store that will be located in Bay
Vista (formerly Westpark) on Kitsap Way.
The SKIA Sub-Area Plan and draft EIS is in its comment period which had been
extended to July 21, 2011. A preferred alternative will be selected once the comment
period has closed.
The Planner II/Long Range Planner position is still open. Andrea suggested cancelling
the August meeting because of lack of staff to provide items for the agenda.
C.Old Business:
D.New Business: None
.
VII. Adjournment
Meeting was adjourned at 7:11 p.m. The next Regular Meeting is scheduled for September 20,
2011.
Respectfully submitted by:
_______________________________________
Andrea L. Spencer, AICP, Executive Secretary
Approved by:
_______________________________________
Lois Hoell, Chairman
Planning Commission Meeting July 19, 2011 Page 8 of 8
Commission Meeting Date: September 20, 2011 Agenda Item: V.B.1
CITY OF BREMERTON, WASHINGTON
PLANNING COMMISSION AGENDA ITEM
AGENDA TITLE: Workshop to discuss three sections of the Draft SMP
DEPARTMENT:
Community Development
PRESENTED BY:
Nicole Floyd, City Planner
SUMMARY:
This workshop is part of a series of workshops to discuss the Draft Shoreline Master Program
(SMP) update. Each workshop focuses on a different set of topics and or sections of the code.
In order to help identify sections which have been discussed and will be discussed, the table of
Attachment I
contents has been provided as . This workshop will focus on the following
sections:
Authority and purpose
Permit Administration
Nonconformities
In drafting these sections, the City intended to utilize language from the existing SMP where
applicable, bring the code into compliance with State requirements, and clarify portions of the
code that have been difficult to interpret or enforce in the past. Prior to presenting these
sections to the Planning Commission, the Citizen Advisory Committee reviewed them in detail
and recommended revisions. A summary of the Citizen Advisory Committee’s discussion and
Attachment II
recommendations can be reviewed in . Staff has revised the three draft sections
based on the Committee’s input. The revised code sections are in this packet and are identified
Attachments III – V,
asrespectively.
CODE SECTION OVERVIEW:
20.16.100 – Authority and Purpose:
This section is intended to introduce the reader to the document and identify the relationship
between the State mandates and the Bremerton SMP. This section is relatively straight
forward as it is follows the recommended format and is nearly identical to most other updated
SMP documents throughout the Puget Sound.
20.16.400 – Administration:
This section outlines the way in which shoreline permits are to be processed. It is intended as a
supplement to the existing permit processing section found in BMC 20.02. Generally, a
shoreline permit follows the same permitting procedures as a standard permit. However, there
are some key differences such as increased public noticing requirements and increased
oversight and review by the Department of Ecology. Unlike standard land use permits where the
City makes the final decision, many shoreline permits must be approved by the City and then
reviewed and approved by the Department of Ecology prior to permit issuance.
This section is intended to work in concert with the requirements of BMC 20.02. Rather than
duplicating all of the information in BMC 20.02 into the SMP, Staff has referenced the
requirements of 20.02 and added only those requirements that are specific to shoreline
development.
1
20.16.500 – Nonconformities:
The concepts and code language in this section are very similar to the existing citywide
nonconforming provisions. This section is intended as a protection for existing developments. It
establishes when the new requirements are triggered, and more importantly, when they are not.
Commonly when a land use code is updated, the requirements change, and therefore and a
home that was built in compliance with the applicable code at the time is no longer in
compliance. It would be unfair to require older homes to come into compliance each time a land
use code was changed. Recognizing this, the concept of “grandfathering” or legal
nonconformity was established in order to protect property owners from undue hardship.
The topic of nonconformities is not new; in fact the existing nonconforming code section looks
much the same as it did in 1988. In the most recent update of the Comprehensive Plan and
Zoning Code which took place in 2005, the Planning Commission and City Council spent
considerable time reviewing the City wide nonconforming regulations. At that time language
was added and changed, but the overall concepts remained the same. The amendments to the
SMP keep with this principle, changing some language as necessary, but maintaining the
original regulations intent. It is Staff’s intent to do the same with the SMP update: to change
some language as necessary, but to maintain the provisions overall intent.
Nonconformities are one of the most misunderstood topics relating to land use requirements.
Many people in the community have received misinformation regarding this topic; it is for this
reason that the primary concepts of nonconformities will be discussed during the commission
workshop as well as those relating specifically to the SMP.
Existing Citywide Nonconforming Provisions
Nonconforming Use
: This relates to how a structure is being used. A nonconforming use is
one that is no longer permitted by the zone in which it is located. For example on the corner of
th
Kitsap Way and 11 Street there was a small Knife Shop. The Knife Shop was likely permitted
long before the zoning was changed to residential only. The Knife Shop was not a residential
use as the zoning required, but was permitted before the code change, therefore it was
considered a “Nonconforming use” or as is it is often called, it was “grandfathered”.
Discontinuation of a Nonconforming Use
: The overall goal is eventual compliance with new
code provisions, without causing an undue hardship. For nonconforming uses this means once
the nonconformity is discontinued (vacant for one year or more), it will no longer be permitted. In
the case of the Knife Shop, the owner eventually decided to close up and move. When the
Knife Shop closed, the nonconforming use clock started ticking. After one year of vacancy, the
nonconforming or “grandfathered” status was lost. The structure is now being used as a
residence which is in full compliance with the current zoning code. Please note that if another
similar nonconforming use went into this location before the year had lapsed, that new use
would carry on the nonconforming status. As this did not happen, the nonconforming status
was terminated.
Nonconforming Structure
: This relates to the building and its location on the site. Typically a
nonconforming structure does not comply with setbacks. For example, a house was legally
constructed on the property line; however the code now requires a 5’ side yard setback. In this
case the structure can be maintained, repaired, and even expanded provided the expansion
does not make the structure more nonconforming.
2
Discontinuation of a Nonconforming Structure
: As with the nonconforming use section the
overall goal is eventual compliance with the new code provisions, without causing undue
hardship. In order to achieve this goal, the code limits the replacement of a structure to 75%.
Once more than 75% of a structure is being replaced it loses its nonconforming status and must
comply with existing land use requirements, the logic being that once 75% of the structure
and/or the structure’s value is being replaced very little is left of the building and moving it to
comply with the code would not represent an undue hardship. The “75% Rule” has been in
effect since 1988.
Natural Disaster
: Should a nonconforming use or structure experience a natural disaster such
as fire, the structure can be rebuilt regardless of the extent of damage. A complete building
permit must be submitted within one year of the casualty.
Proposed Nonconforming Provisions (Shoreline Jurisdiction Only):
Staff intends to keep this section consistent with the citywide nonconforming provisions and
proposes to make as few changes as possible. Some areas that are in need of modification
include:
No Net Loss
: Language has been added to ensure that no net loss is achieved and that the
code is in compliance with the State guidelines. While adding such language, Staff edited the
section for general readability and clarity helping ensure the intent of the provisions is clear.
75% Rule
: Language has been updated to make clear how the 75% value is measured.
Natural Disaster
: Staff has added language that clarifies and ensures homes experiencing
substantial destruction from a natural disaster are allowed to rebuild. The existing code
explicitly states this exemption for nonconforming uses, but is not as explicit in the
nonconforming structure section. Staff believes this is an error and should be corrected.
Vegetation Management
: As you may remember from the previous workshop, the SMP
includes new provisions that require natural plantings within the buffer when new construction is
proposed. As these are new provisions, they must also be addressed in the nonconforming
code section. These provisions are intended to be applied fairly and to not create an undue
hardship for property owners. As with all nonconforming provisions these requirements are
only applicable when new construction is proposed. Such construction is broken into the
following two groups:
Additions outside of the buffer/setback:
Small additions (500 square feet or less) are exempt. No new vegetation will be
required.
Large additions (501 square feet or more) must improve the vegetation on 25% of the
required buffer, with a minimum of 10’.
Additions within the buffer or setback:
An addition that follows an existing building line, but encroaches into the
setback/buffer is limited to 250 square feet.
The addition cannot encroach further into the setback/buffer than the existing
structure.
50% of the buffer must be enhanced with native vegetation.
3
The Citizen Advisory Committee spent a considerable amount of time discussing these new
provisions. The committee debated the following concepts: Is the owner of a nonconforming
structure at an advantage or disadvantage? On the one hand the property owner may be at a
disadvantage when they decide its time to add on to their nonconforming house because they
will likely lose 10’ or more of their existing yard area to natural vegetation. On the other hand
the property owner may be at an advantage because the nonconforming home is already closer
to the water than anyone else is allowed to build and will be allowed to develop further
waterward while only being required to install half the vegetation as everyone else is required to
install.
SUMMARY:
The workshop series is intended to discuss and deliberate specific code sections. For this
round of code sections, Staff will focus mostly on the last section, nonconformities; however,
questions, discussion, deliberation and direction for staff is appropriate for all sections. Staff
offers the following discussion topic questions to help focus the commission’s review:
1. Are there any areas in need of further clarification or are hard to understand?
2. Should the list the State adopted permit exemptions be included in the Bremerton SMP
within the Permit Administration section?
The following questions relate the nonconforming section:
3. Do you think that the nonconforming regulations within the shoreline should be as similar
as possible to the citywide nonconforming regulations?
4. Do you think the language relating to the 75% rule is clear?
5. Should minor expansions of nonconforming structures (500 square feet or less) be
exempt from new vegetation requirements?
6. What do you think about requiring 25% improvement to the buffer for additions outside
the setback/buffer? How about the 10’ minimum?
7. Do you think additions should be permitted within the buffer/setback? Is 250 square feet
an appropriate limit?
ATTACHMENTS:
Attachment I: Table of Contents
Attachment II: Summary from the Citizen Advisory Committee Meeting
Attachment III: Authority and Purpose
Attachment IV: Permit Administration
Attachment V: Nonconforming Provisions
4
Attachment I
MAY 2011 SHORELINE MASTER PROGRAM
TABLE OF CONTENTS
Previously reviewed sections are in GREEN
New sections to review are in BLUE
Incomplete sections are in BLACK
20.16.100 AUTHORITY AND PURPOSE…….…..……………………....
20.16.200 DOCUMENT GOALS……..……………………………............
20.16.210 – Intent
20.16.220 – Goal Chart
20.16.230 – General Goals
20.16.300 MAPS AND SHORELINE JURISDICTIONS.…………........
20.16.310 – Intent
20.16.320 – Shoreline maps
20.16.330 – Shoreline environmental designations and policies
20.16.340 – Shorelines of Statewide Significance
20.16.400 ADMINISTRATION…………………………………………….
20.16.410 – Applicability
20.16.420 – Permit Application Types
20.16.430 – Noticing Requirements
20.16.440 – Criteria of Approval
20.16.450 – Appeals
20.16.460 – Time Periods
20.16.470 – Violations and Penalties
20.16.480 – Shoreline Moratorium
20.16.490 – Restoration Project Relocation of OHWM
20.16.500 NONCONFORMITIES...................................................................
20.16.510 – Intent
20.16.520 – Establishment of a Legal Nonconformity and Applicability
20.16.530 – Annexations
20.16.540 – Definitions
20.16.550 – Nonconforming Lots
20.16.560 – Nonconforming Structures
20.16.570 – Unsuitable Structure for Uses
20.16.580 – Unlawful Uses and Structures
20.16.600 GENERAL POLICIES AND REGULATIONS……….……
20.16.610 – Buffers and Setbacks
20.16.620 – Vegetation Conservation
20.16.630 – No Net Loss / Mitigation Sequencing
20.16.640 – Public Access
20.16.650 – Water Quality, Stormwater, and Non-Point Pollution
20.16.660 – Archaeologically Sensitive Areas
20.16.670 – Lighting Requirements
20.60.680 – Parking Requirements
1
Attachment I
20.16.690 – Use Matrix and Height Table
20.16.700 USE REGULATIONS………………………………………
20.16.710 – Intent
20.16.720 – Aquaculture
20.16.730 – Commercial Development
20.16.740 – Forest Practices
20.16.750 – Industrial Development
20.16.760 – Marinas and Boating Facilities
20.16.770 – Recreational Development
20.16.780 – Residential Development
20.16.790– Roads, Railways, and Utilities
20.16.800 SHORE MODIFICATIONS………………………………….
20.16.810 – Intent
20.16.720 – Clearing and Grading
20.16.730 – Docks, Piers, and In-Water Structures
20.16.740 – Dredging
20.16.750 – Flood Hazard Reduction
20.16.760 – Landfills
20.16.770 – Restoration and Conservation
20.16.780 – Shoreline Stabilization
20.16.790 – Stormwater Control Facilities
20.16.900 DEFINITIONS ……………………………….……………...…….
APPENDICES …………………………….….…………….………..………
2
Attachment II
Meeting Summary
Citizen Advisory Committee Meeting
June 21, 2011
The Citizen Advisory Committee held a meeting to discuss the Shoreline Master Program
Update. This meeting focused on three sections: Authority and Purpose, Administration,
and Nonconformities. The committee reviewed these documents for content, clarity, and
palatability of the proposed regulations.
Topics of interest are summarized in the following chart. Based on the comments made
by the committee, Staff has revised the code sections to represent their suggestions.
SECTIONQUESTION / COMMENTS STAFF RESPONSE / ANSWER
Authority and
Purpose
20.16.100 Citations from State regulations Citations were revised to be clearer.
should be clarified.
Page 1
Administration
20.16.400 Consistency of capitalization Revisions have been made.
typo’s, and general scrivener’s
All pages errors.
20.16.410(d) Suggestion to remove exemptions
This section is directly from the WAC and
Page 1 listed that are not applicable to therefore cannot be modified per Ecology. The
Bremerton. City can either put the whole section in, or leave
the whole section out, but cannot choose portions.
For readers ease Staff suggests putting the whole
section into the SMP.
20.16.420 Suggestion to add a description of The code references BMC 20.02 which has the
Page 9 permit types to aid the reader. full description of permit types and processes.
Rather than duplicating language Staff
recommends leaving the citation to the full permit
processing section.
20.16.470(e) Suggestion to clarify that the City
Code has been revised to reflect the proposed
Page 16 is not required to file a law suit change.
against everyone who violates a
portion of the code, rather the City
has the option to do so.
Nonconforming
20.16.500 Correction of general typos, Corrections have been made.
capitalization and scriveners
errors.
20.16.540(d)(2) Suggestion to exempt interior Code language has been revised. This section has
Page 2 remodel from meeting the been problematic in the past as developers
definition of substantial constantly want to push the envelope as to how
destruction. much they can tear down without losing
nonconforming status. Staff intends to clarify the
code, but not make it less restrictive on shorelines
1
Attachment II
than elsewhere in the City.
20.16.560(c) Suggestion to make sure the code Code language has been revised.
Page 3 is clear that this section is
discussing nonconforming uses,
and not structures.
20.16.5(e)(2) Clarify the intent of this provision. Code has been revised by adding a 1 year limit
Page 4 Does this mean a house that was for the building permit application to be
demolished 10 years ago can be submitted. This language is consistent with other
rebuilt? similar provisions in the code.
¥
20.16.560(b) As this is the only new portion of the
Suggest different regulations
Page 5 nonconforming code, Staff and the committee
for additions that are outside
spent a substantial amount of time reviewing
of the setback/buffer than
other jurisdictions codes and evaluating the pro’s
those additions inside the
and con’s of each provision.
setback/buffer:
The code has been revised to represent this
¥
Outright permit additions of
collaboration and includes all of the suggestions
500sf outside the
shown in the Colum to the left.
setback/buffer.
¥
Suggest requiring vegetation
enhancement for large
additions outside of the
setback/buffer.
¥
Propose using 25% of lot
depth to determine vegetation
requirements with a cap of
10’
¥
Additions inside the
setback/buffer should be
limited to 250 sf, should not
extend past existing
foundation, and should
require 50% buffer to be
revegetated.
2
Attachment III
Authority and Purpose:
The City of Bremerton recognizes the intent of the voters and the legislature of the
State of Washington in adopting the "Shoreline Management Act (SMA) of 1971"
and adopts by reference the findings therein including, but not limited to, the intent
to protect shorelines of statewide significance, their associated natural resources,
and providing opportunities for the general public to have access to generally
enjoy shorelines.
The State legislature has established that shorelines of the State are among the
most valuable and fragile of its natural resources (such as Puget Sound and Kitsap
Lake) and there is great concern throughout the State relating to their utilization,
protection, restoration, and preservation. In addition, ever increasing pressures of
additional uses are being placed on the shorelines necessitating increased
coordination in the management and development of the shorelines of the State.
The legislature has determined that much of the shorelines of the state and the
uplands adjacent thereto are not necessarily being utilized in a way that is in the
best interest of the public. This conclusion was drawn by evaluating the public
and private development which has taken place on or adjacent to shorelines of
statewide significance. Due to this, the legislature has determined that
coordinated planning is necessary in order to protect the public interest
associated with the shorelines of the state, while at the same time, recognizing
and protecting private property rights consistent with the public interest. There is,
therefore, a clear and urgent demand for a planned, rational, and concerted
effort, jointly performed by federal state and local governments, to prevent the
inherent harm in uncoordinated and piecemeal development along such
shorelines.
In drafting this latest version of the Bremerton Shoreline Master Program, the
City has followed the State mandates and guidelines established in the WAC and
RCW. These requirements have had a significant impact on the goals, policies,
and regulations within this document. In order to better understand the programs
objectives the portions of RCW 90.58.020 are provided as follows:
It is the policy of the state to provide for the management of the shorelines
of the state by planning for and fostering all reasonable and appropriate
uses. This policy is designed to ensure the development of these
shorelines in a manner which, while allowing for limited reduction of rights
of the public in the navigable waters, will promote and enhance the public
interest. This policy contemplates protecting against adverse effects to the
public health, the land and its vegetation and wildlife, and the waters of the
State and their aquatic life, while protecting generally public rights of
navigation and corollary rights incidental thereto.
The legislature declares that interest of all people shall be paramount in
the management of shorelines of statewide significance. The Department
of Ecology, in adopting guidelines for shorelines of statewide significance
1
Attachment III
and local government in developing master programs for shorelines of
statewide significance, shall give preference to uses in the following order:
1 Recognize and protect statewide interest over local interest;
2. Preserve the natural character of the shoreline;
3. Result in long-term over short term benefit;
4. Protect the resources and ecology of the shoreline;
5. Increase public access to publicly owned areas of the shorelines;
6. Increase recreational opportunities for the public in the shoreline;
7. Provide for any other element as defined in RCW 90.58.100 deemed
appropriate or necessary.
The Shoreline Management Act's paramount objectives are to protect and restore
the valuable natural resources that shorelines represent and to plan for and foster
all "reasonable and appropriate uses" that are dependent upon a waterfront
location, or which will offer the opportunities for the public to enjoy the State's
shorelines. With this clear mandate, the provisions of the Shoreline Management
Act established a planning and regulatory permit program which is initiated at the
city and county level under State guidance through the local Shoreline Master
Program.
This cooperative effort balances local and statewide interests in the management
and development of shoreline areas. Local governments are required to plan for
shoreline development by developing local Shoreline Master Programs (SMPs).
They are also required to regulate such development through a shoreline permit
system for substantial development projects.
Local government actions are monitored by the State of Washington’s Department
of Ecology (DOE), which approves new or amended SMPs, reviews substantial
development permits, and approves conditional use permits and variances. The
local Shoreline Master Program is essentially a shoreline Comprehensive Plan
with a distinct environmental orientation applicable to shoreline areas customized
to local circumstances. Collectively, all the local master programs comprise the
State Shoreline Master Program.
2
Attachment IV
20.16.400 Permit Administration
20.16.410 – Applicability
20.16.420 – Permit Application Types
20.16.430 – Noticing Requirements
20.16.440 – Criteria of Approval
20.16.450 – Appeals
20.16.460 – Time Periods
20.16.470 – Violations and Penalties
20.16.480 – Shoreline Moratorium
20.16.490 – Restoration Project Relocation of OHWM
20.16.410 Applicability:
Liberal Construction:
(a)All regulations applied within the shoreline shall be
liberally construed to give full effect to the objectives and purposes for
which they have been enacted. Shoreline Master Program policies
establish intent for the shoreline regulations in addition to RCW 90.58 and
Chapter 173 of the Washington Administrative Code 173-26 and 173-27.
Burden of Proof:
(b)The applicants for any permit shall have the burden of
proving that the proposed development is consistent with the criteria as
set out in the Shoreline Management Act.
Development Permit Compliance:
(c)For all development within shoreline
jurisdiction, the responsible official shall not issue a development or
construction permit for such development until compliance with the
Shoreline Master Program has been documented. If a Shoreline
Substantial Development Permit is required, no permit shall be issued until
all comment and appeal periods have expired. Any development permit
for work within the shoreline jurisdiction (200’ from the OHWM) shall be
subject to the same terms and conditions that apply to the shoreline
permit.
Exemptions:
(d)
A Shoreline Substantial Development Permit shall be required for all
proposed use and development within the shoreline jurisdiction unless the
proposal is specifically exempt from permit requirements pursuant to WAC
173-27-040. The following list of exemptions is an exact copy from the WAC,
and is located here as a courtesy to the reader. Any exemptions adopted
subsequently by the legislature shall apply without amendment to this
program. An exemption from a shoreline permit is not an exemption from
compliance with the Act or the Shoreline Master Program, or from any other
regulatory requirements. Exemptions shall be construed narrowly. Only
those developments that meet the precise terms of one or more of the listed
1
Attachment IV
exemptions may be granted exemption from the Shoreline Substantial
Development Permit process. Exemptions are as follows:
(1) Any development of which the total cost or fair market value,
whichever is higher, does not exceed five thousand dollars, if such
development does not materially interfere with the normal public use of
the water or shorelines of the state. The dollar threshold established in
this subsection must be adjusted for inflation by the office of financial
management every five years, beginning July 1, 2007, based upon
changes in the consumer price index during that time period.
"Consumer price index" means, for any calendar year, that year's
annual average consumer price index, Seattle, Washington area, for
urban wage earners and clerical workers, all items, compiled by the
Bureau of Labor and Statistics, United States Department of Labor.
The office of financial management must calculate the new dollar
threshold and transmit it to the office of the code reviser for publication
in the Washington State Register at least one month before the new
dollar threshold is to take effect. For purposes of determining whether
or not a permit is required, the total cost or fair market value shall be
based on the value of development that is occurring on shorelines of
the state as defined in RCW 90.58.030 (2)(c). The total cost or fair
market value of the development shall include the fair market value of
any donated, contributed or found labor, equipment or materials;
(2) Normal maintenance or repair of existing structures or developments,
including damage by accident, fire or elements. "Normal maintenance"
includes those usual acts to prevent a decline, lapse, or cessation from
a lawfully established condition. "Normal repair" means to restore a
development to a state comparable to its original condition, including
but not limited to its size, shape, configuration, location and external
appearance, within a reasonable period after decay or partial
destruction, except where repair causes substantial adverse effects to
shoreline resource or environment. Replacement of a structure or
development may be authorized as repair where such replacement is
the common method of repair for the type of structure or development
and the replacement structure or development is comparable to the
original structure or development including but not limited to its size,
shape, configuration, location and external appearance and the
replacement does not cause substantial adverse effects to shoreline
resources or environment;
(3) Construction of the normal protective bulkhead common to single-
family residences. A "normal protective" bulkhead includes those
structural and nonstructural developments installed at or near, and
parallel to, the ordinary high water mark for the sole purpose of
protecting an existing single-family residence and appurtenant
structures from loss or damage by erosion. A normal protective
bulkhead is not exempt if constructed for the purpose of creating dry
2
Attachment IV
land. When a vertical or near vertical wall is being constructed or
reconstructed, not more than one cubic yard of fill per one foot of wall
may be used as backfill. When an existing bulkhead is being repaired
by construction of a vertical wall fronting the existing wall, it shall be
constructed no further waterward of the existing bulkhead than is
necessary for construction of new footings. When a bulkhead has
deteriorated such that an ordinary high water mark has been
established by the presence and action of water landward of the
bulkhead then the replacement bulkhead must be located at or near
the actual ordinary high water mark. Beach nourishment and
bioengineered erosion control projects may be considered a normal
protective bulkhead when any structural elements are consistent with
the above requirements and when the project has been approved by
the department of fish and wildlife.
(4) Emergency construction necessary to protect property from damage by
the elements. An "emergency" is an unanticipated and imminent threat
to public health, safety, or the environment which requires immediate
action within a time too short to allow full compliance with this chapter.
Emergency construction does not include development of new
permanent protective structures where none previously existed. Where
new protective structures are deemed by the administrator to be the
appropriate means to address the emergency situation, upon
abatement of the emergency situation the new structure shall be
removed or any permit which would have been required, absent an
emergency, pursuant to chapter 90.58 RCW, these regulations, or the
local master program, obtained. All emergency construction shall be
consistent with the policies of chapter 90.58 RCW and the local master
program. As a general matter, flooding or other seasonal events that
can be anticipated and may occur but that are not imminent are not an
emergency;
(5) Construction and practices normal or necessary for farming, irrigation,
and ranching activities, including agricultural service roads and utilities
on shorelands, construction of a barn or similar agricultural structure,
and the construction and maintenance of irrigation structures including
but not limited to head gates, pumping facilities, and irrigation
channels: Provided, That a feedlot of any size, all processing plants,
other activities of a commercial nature, alteration of the contour of the
shorelands by leveling or filling other than that which results from
normal cultivation, shall not be considered normal or necessary
farming or ranching activities. A feedlot shall be an enclosure or facility
used or capable of being used for feeding livestock hay, grain, silage,
or other livestock feed, but shall not include land for growing crops or
vegetation for livestock feeding and/or grazing, nor shall it include
normal livestock wintering operations;
3
Attachment IV
(6) Construction or modification of navigational aids such as channel
markers and anchor buoys;
(7) Construction on shorelands by an owner, lessee or contract purchaser
of a single-family residence for their own use or for the use of their
family, which residence does not exceed a height of thirty-five feet
above average grade level and which meets all requirements of the
state agency or local government having jurisdiction thereof, other than
requirements imposed pursuant to chapter 90.58 RCW. "Single-family
residence" means a detached dwelling designed for and occupied by
one family including those structures and developments within a
contiguous ownership which are a normal appurtenance. An
"appurtenance" is necessarily connected to the use and enjoyment of a
single-family residence and is located landward of the ordinary high
water mark and the perimeter of a wetland. On a statewide basis,
normal appurtenances include a garage; deck; driveway; utilities;
fences; installation of a septic tank and drainfield and grading which
does not exceed two hundred fifty cubic yards and which does not
involve placement of fill in any wetland or waterward of the ordinary
high water mark. Local circumstances may dictate additional
interpretations of normal appurtenances which shall be set forth and
regulated within the applicable master program. Construction
authorized under this exemption shall be located landward of the
ordinary high water mark;
(8) Construction of a dock, including a community dock, designed for
pleasure craft only for the private, noncommercial use of the owner,
lessee, or contract purchaser of single-family and multiple-family
residences. A dock is a landing and moorage facility for watercraft and
does not include recreational decks, storage facilities or other
appurtenances. This exception applies if either:
(i) In salt waters, the fair market value of the dock does not exceed
two thousand five hundred dollars ($2,500); or
(ii) In fresh waters the fair market value of the dock does not exceed
ten thousand dollars ($10,000), but if subsequent construction having a
fair market value exceeding two thousand five hundred dollars ($2,500)
occurs within five years of completion of the prior construction, the
subsequent construction shall be considered a substantial
development for the purpose of this chapter.
(iii) For purposes of this section salt water shall include the tidally
influenced marine and estuarine water areas of the state including the
Pacific Ocean, Strait of Juan de Fuca, Strait of Georgia and Puget
Sound and all bays and inlets associated with any of the above;
(9) Operation, maintenance, or construction of canals, waterways, drains,
reservoirs, or other facilities that now exist or are hereafter created or
4
Attachment IV
developed as a part of an irrigation system for the primary purpose of
making use of system waters, including return flow and artificially
stored groundwater from the irrigation of lands;
(10) The marking of property lines or corners on state-owned lands,
when such marking does not significantly interfere with normal public
use of the surface of the water;
(11) Operation and maintenance of any system of dikes, ditches, drains,
or other facilities existing on September 8, 1975, which were created,
developed or utilized primarily as a part of an agricultural drainage or
diking system;
(12) Any project with a certification from the governor pursuant to
chapter80.50 RCW;
(13) Site exploration and investigation activities that are prerequisite to
preparation of an application for development authorization under this
chapter, if:
(i) The activity does not interfere with the normal public use of the
surface waters;
(ii) The activity will have no significant adverse impact on the
environment including but not limited to fish, wildlife, fish or wildlife
habitat, water quality, and aesthetic values;
(iii) The activity does not involve the installation of any structure,
and, upon completion of the activity, the vegetation and land
configuration of the site are restored to conditions existing before the
activity;
(iv) A private entity seeking development authorization under this
section first posts a performance bond or provides other evidence of
financial responsibility to the local jurisdiction to ensure that the site is
restored to preexisting conditions; and
(v) The activity is not subject to the permit requirements of RCW
90.58.550;
(14) The process of removing or controlling aquatic noxious weeds, as
defined in RCW 17.26.020, through the use of an herbicide or other
treatment methods applicable to weed control that are recommended
by a final environmental impact statement published by the
Department of Agriculture or Ecology jointly with other state agencies
under chapter 43.21C RCW;
(15) Watershed restoration projects as defined herein. Local
government shall review the projects for consistency with the shoreline
master program in an expeditious manner and shall issue its decision
5
Attachment IV
along with any conditions within forty-five days of receiving all
materials necessary to review the request for exemption from the
applicant. No fee may be charged for accepting and processing
requests for exemption for watershed restoration projects as used in
this section.
(i) "Watershed restoration project" means a public or private project
authorized by the sponsor of a watershed restoration plan that
implements the plan or a part of the plan and consists of one or more
of the following activities:
(A) A project that involves less than ten miles of streamreach, in
which less than twenty-five cubic yards of sand, gravel, or soil is
removed, imported, disturbed or discharged, and in which no existing
vegetation is removed except as minimally necessary to facilitate
additional plantings;
(B) A project for the restoration of an eroded or unstable stream
bank that employs the principles of bioengineering, including limited
use of rock as a stabilization only at the toe of the bank, and with
primary emphasis on using native vegetation to control the erosive
forces of flowing water; or
(C) A project primarily designed to improve fish and wildlife habitat,
remove or reduce impediments to migration of fish, or enhance the
fishery resource available for use by all of the citizens of the state,
provided that any structure, other than a bridge or culvert or instream
habitat enhancement structure associated with the project, is less than
two hundred square feet in floor area and is located above the ordinary
high water mark of the stream.
(ii) "Watershed restoration plan" means a plan, developed or
sponsored by the department of fish and wildlife, Ecology, the
department of natural resources, the department of transportation, a
federally recognized Indian tribe acting within and pursuant to its
authority, a city, a county, or a conservation district that provides a
general program and implementation measures or actions for the
preservation, restoration, recreation, or enhancement of the natural
resources, character, and ecology of a stream, stream segment,
drainage area, or watershed for which agency and public review has
been conducted pursuant to chapter 43.21C RCW, the State
Environmental Policy Act;
(16) A public or private project that is designed to improve fish or wildlife
habitat or fish passage, when all of the following apply:
(i) The project has been approved in writing by the department of
6
Attachment IV
fish and wildlife;
(ii) The project has received hydraulic project approval by the
department of fish and wildlife pursuant to chapter 77.55 RCW; and
(iii) The local government has determined that the project is
substantially consistent with the local shoreline master program. The
local government shall make such determination in a timely manner
and provide it by letter to the project proponent.
(iv) Fish habitat enhancement projects that conform to the
provisions of RCW 77.55.181 are determined to be consistent with
local shoreline master programs, as follows:
(A) In order to receive the permit review and approval process
created in this section, a fish habitat enhancement project must meet
the following and (II) of this subsection:
(I) A fish habitat enhancement project must be a project to
accomplish one or more of the following tasks:
a. Elimination of human-made fish passage barriers, including
culvert repair and replacement; or restoration of an eroded or
unstable streambank employing the principle of bioengineering,
including limited use of rock as a stabilization only at the toe of
the bank, and with primary emphasis on using native vegetation
to control the erosive forces of flowing water; or
b. Placement of woody debris or other instream structures that
benefit naturally reproducing fish stocks.
The department of fish and wildlife shall develop size or scale
threshold tests to determine if projects accomplishing any of these
tasks should be evaluated under the process created in this
section or under other project review and approval processes. A
project proposal shall not be reviewed under the process created
in this section if the department determines that the scale of the
project raises concerns regarding public health and safety; and
(II) A fish habitat enhancement project must be approved in one of
the following ways: By the department of fish and wildlife pursuant to
chapter77.95 or 77.100 RCW; or By the sponsor of a watershed
restoration plan as provided in chapter 89.08 RCW; or
• By the department as a department of fish and wildlife-sponsored
fish habitat enhancement or restoration project;
7
Attachment IV
• Through the review and approval process for the jobs for the
environment program;
• Through the review and approval process for conservation district-
sponsored projects, where the project complies with design standards
established by the conservation commission through interagency
agreement with the United States Fish and Wildlife Service and the
natural resource conservation service;
• Through a formal grant program established by the legislature or
the department of fish and wildlife for fish habitat enhancement or
restoration; and
• Through other formal review and approval processes established
by the legislature.
(B) Fish habitat enhancement projects meeting the criteria of
(p)(iii)(A) of this subsection are expected to result in beneficial impacts
to the environment. Decisions pertaining to fish habitat enhancement
projects meeting the criteria of (p)(iii)(A) of this subsection and being
reviewed and approved according to the provisions of this section are
not subject to the requirements of RCW 43.21C.030 (2)(c).
(C)(I) A hydraulic project approval permit is required for projects
that meet the criteria of (p)(iii)(A) of this subsection and are being
reviewed and approved under this section. An applicant shall use a
joint aquatic resource permit application form developed by the office
of regulatory assistance to apply for approval under this chapter. On
the same day, the applicant shall provide copies of the completed
application form to the department of fish and wildlife and to each
appropriate local government. Local governments shall accept the
application as notice of the proposed project. The department of fish
and wildlife shall provide a fifteen-day comment period during which it
will receive comments regarding environmental impacts. Within forty-
five days, the department shall either: issue a permit, with or without
conditions; deny approval; or make a determination that the review and
approval process created by this section is not appropriate for the
proposed project. The department shall base this determination on
identification during the comment period of adverse impacts that
cannot be mitigated by the conditioning of a permit. If the department
determines that the review and approval process created by this
section is not appropriate for the proposed project, the department
shall notify the applicant and the appropriate local governments of its
determination. The applicant may reapply for approval of the project
under other review and approval processes.
8
Attachment IV
(II) Any person aggrieved by the approval, denial, conditioning, or
modification of a permit under this section may formally appeal the
decision to the hydraulic appeals board pursuant to the provisions of
this chapter.
(D) No local government may require permits or charge fees for fish
habitat enhancement projects that meet the criteria of (p)(iii)(A) of this
subsection and that are reviewed and approved according to the
provisions of this section.
20.16.420 Permit Application Types:
(a) A permit for any action in Shoreline jurisdiction not requiring a Shoreline
Substantial Development Permit, Conditional Use Permit or Variance will
be processed as a Type I permit pursuant to BMC 20.02, Chapter 90.58
RCW and Chapter 173-27 WAC. All uses and developments within the
shoreline jurisdiction shall be carried out in a manner that is consistent
with this Program and the policy of the Act as required by RCW
90.58.140(1), regardless of whether a permit, exemption, variance, or
conditional use permit is required.
(b) All permits shall be submitted to the Department of Community
Development and shall comply with the submittal requirements of BMC
20.02.
(c) A Shoreline Substantial Development Permit application shall be
processed as a Type II permit pursuant BMC 20.02 and as otherwise
required by Chapter 90.58 RCW and Chapter 173-27. Permits may be
approved, approved with conditions, or denied by the Director.
(d) A Shoreline Conditional Use Permit shall be processed as either a Type II
or Type III permit depending on project scope. Permits shall be processed
pursuant to BMC 20.02 or as otherwise required by Chapter 90.58 RCW
and Chapter 173-27 WAC. Permits may be approved, approved with
conditions, or denied by the Director or Administrative Hearing Examiner
respectively.
(e) A Variance permit shall be processed as a Type III permit pursuant BMC
20.02 and as otherwise required by Chapter 90.58 RCW and Chapter 173-
27 WAC. Permits may be approved, approved with conditions, or denied
by the Administrative Hearing Examiner.
20.16.430 Noticing Requirements:
When a notice of application is required, the following shall apply:
(a) Timeline. The notice shall be provided within fourteen (14) days
after the determination of completeness is issued.
(b) Content. The notice of application shall include the following:
(1) The file number assigned;
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Attachment IV
(2)The date of application, date of the notice of completeness,
and the date of the notice of application;
(3) A description of the proposed project action and a list of
permits included with the application and, if applicable, a list of requested
studies;
(4) Identification of known permits not included with the
application;
(5) Identification of existing environmental documents that
evaluate the proposal;
(6) The location where the application and any studies can be
reviewed;
(7) A statement of the public comment period and which shall
not be less than thirty (30) days;
(8) A statement of the rights of any person to comment on the
application, receive notice of and participate in any hearings, request a copy of
the decision and any appeal rights;
(9) Any other information determined appropriate by the City.
(c) Legal Notice. Notice shall be provided in the following manner as
applicable:
(1) Mail. The notice shall be sent by email, first class or higher
mail to the following:
(i) The applicant;
(ii) Affected City Departments;
(iii) State, federal and local agencies with jurisdiction;
(iv) For Type III Permits mailed notice shall also be sent
to all property owners of real property (As shown by the records of the Kitsap
County Assessor’s Office) within three hundred (300) feet of the subject property.
Where any portion of a property abutting the subject property is owned,
controlled, or under the option of purchase by the applicant, all property owners
within a three hundred (300) foot radius of the total ownership interest shall be
notified; and
(v) Any person who requests such notice in writing to the
Department.
(2) Posting of the Property. Notice shall be posted according to
the following:
(i) At least one (1) location on or adjacent to the subject
property and that shall be clearly visible and legible from an adjacent street or
public area;
(ii) The Director shall determine the specifications to the
construction and installation of the notice boards.
(3) Publishing Notice. A published notice in the City’s official
newspaper of general circulation within the City boundaries is required. The
content shall include the following:
(i) Project location;
(ii) Project description;
(iii) Type of permit(s) required;
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Attachment IV
(iv) Comment period and dates;
(v) Location where the complete application may be
viewed.
(d) Integration of Notices. The City will integrate the notice of
application with SEPA review whenever possible. Notification for a notice of
application should be combined with the notification for threshold determination
and the scoping for a determination of significance whenever possible.
(e) Issuance of Decisions. Except for a threshold determination, the
City may not issue a decision or a recommendation on a permit until the
expiration of the public comment period.
(f) Public Comments. Comments shall be as specific as possible.
Comments shall be received by the last day of the comment period specified in
the notice. If no comments are received by the date specified it is presumed that
those notified have no comments.
20.16.440 Criteria of Approval:
(a) Shoreline Substantial Development Permits:
(1) A Shoreline Substantial Development Permit shall be granted only
when the development proposed is consistent with:
(i) The policies and procedures of the Shoreline Management Act
RCW 90.58; and the provisions of the Shoreline Guidelines
WAC 173-26 and WAC 173-27, and
(ii) This Shoreline Master Program, Comprehensive Plan and
Zoning Regulations, to the extent that they are consistent with
the Shoreline Master Program.
(2) The City may attach conditions to the approval of permits as
necessary to assure consistency of the project with the act and this
Shoreline Master Program.
(3) Any ruling on an application for a Shoreline Substantial
Development 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 Ecology and the
Attorney General by the Director. Filing shall occur in accordance
with RCW 90.58.140(6) and WAC 173-27-130.
(b) Conditional Use Permits:
(1) Conditional Use Permits are issued for proposed substantial
development activities when the activity is classified as a
Conditional Use or is an unlisted use in the Shoreline Use/ Activity
Matrix (Table 20.16.690). The purpose of the Conditional Use
Permit is to allow greater flexibility in the application of the
Shoreline Master Program. Conditional Use Permits are processed
as an Administrative Type II Directors decision, but can at any point
in the permit process be elevated to a Nonadministrative Type III
Hearings Examiner decision when the Director determines:
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Attachment IV
(i)The use or project has a significant impact beyond the
immediate site,
(ii) The use or project is of a neighborhood or community wide
interest, or
(iii) The use or project is of a controversial nature.
(2) Development activity considered a Conditional Use may be
authorized if all of the criteria in WAC 173-27-160 are met. The
criteria include:
(i) The proposed use is consistent with RCW 90.58.020 and the
policies of Bremerton's Shoreline Master Program;
(ii) The proposed use will not interfere with the normal public use of
public shorelines;
(iii) The proposed use of the site and design are compatible with
other permitted uses in the area;
(iv) The proposed use will cause no net loss of ecological function
to the shoreline environment; and
(v) The public interest will not suffer a detrimental effect.
(vi) When considering the application, consideration must be given
to the cumulative impact of additional requests for similar
actions in the area. After the City makes a final decision on a
Conditional Use Permit, the permit and application must be
reviewed and approved by Ecology and the Attorney General.
(c) Variance: Relief from specific bulk, dimensional or performance standards
in the Shoreline Master Program can only be granted when there are
extraordinary or unique circumstances relating to the property such that
strict implementation of the Shoreline Master Program will impose
unnecessary hardships on the applicant or thwart the policies set forth in
RCW 90.58.020.
(1) Development activities considered a Variance may be authorized if
all of the criteria in WAC 173-27-170 are met. The criteria include:
(i) The strict application of the bulk, dimensional, or performance
standards would preclude or significantly interfere with the
reasonable use of the property not otherwise prohibited by the
Shoreline Master Program;
(ii) The hardship is specifically related to the property, and is the
result of unique conditions such as lot shape, size or natural
features, and the application of the Shoreline Master Program;
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Attachment IV
(iii) The project design is compatible with other permitted uses in
the area, and will not cause adverse effects to adjacent
properties or the shoreline environment;
(iv) The variance will not constitute a grant of special privilege, and
is the minimum necessary to afford relief;
(v) The public interest will suffer no substantial detrimental effect;
and
(vi) If the development is waterward of the ordinary high-water
mark, the public rights of navigation and use of the shorelines
will not be adversely affected.
(2) After the City makes a final decision on a variance permit, the permit and
application must be reviewed and approved by the Department of Ecology.
Appeals:
20.16.450
(a) Any person aggrieved by the granting, denying, or rescinding of a permit
on shorelines of the state pursuant to RCW 90.58.140 may, except as
otherwise provided in chapter 43.21B RCW, seek review from the
shorelines hearings board by filing a petition for review within twenty-one
days of the decision as provided for in RCW 90.58.140(6).
(b) Type II Decisions: Type II decisions on Shoreline Substantial
Development Permits, Conditional Use Permits, and revisions to shoreline
permits may be appealed to the Administrative Hearing Examiner
pursuant to Chapter 20.02 BMC within fourteen (14) calendar days of the
date of the decision, provided that the applicant agrees to this local
appeal. In the case of a Conditional Use Permit the Director may request
that the Department of Ecology delay action in the approval until the local
appeal process has been completed. In lieu of an appeal to the
Administrative Hearing Examiner, or in the case where the applicant does
not agree to a local appeal, an appeal of the local shoreline permit
decision shall be heard by the Shorelines Hearings Board (SHB). Any
person may file a Petition for Review to the SHB within twenty-one (21)
calendar days of the date of filing of the decision with Ecology and the
Attorney General pursuant to RCW 90.58.180(1).
(c) Type III Decisions and Decisions on Appeals: Type III decisions, and
decisions on appeal of Type II decisions may be appealed to the
Shorelines Hearings Board by filing a Petition for Review within twenty-
one (21) calendar days of the date of filing of the decision with the
Department of Ecology and the Attorney General pursuant to RCW
90.58.180(1).
(d) An appeal of a Conditional Use Permit or Variance by the Department of
Ecology shall be filed with the Shoreline Hearings Board within twenty one
13
Attachment IV
(21) calendar days of notice of the Department of Ecology’s decision,
pursuant to RCW 90.58.180(1).
(e) Shoreline Master Program Adoption and Amendments. The decision of
the Department of Ecology pertaining to the adoption of, or amendment to,
the Shoreline Master Program may be appealed to the Central Puget
Sound Growth Management Hearing Board per Chapter 36.70A RCW.
20.16.460 Time Periods:
(a) Type II Permits: No construction pursuant to such permit shall begin or be
authorized and no building, grading or other construction permits or use
permits shall be issued by the City until 21 days from the date a Shoreline
Substantial Development Permit was filed with the Department of Ecology
and the Attorney General, or until all review proceedings are completed as
were initiated within the twenty one (21) days of the date of filing. Filing shall
occur in accordance with RCW 90.58.140(6) and WAC 173-27-130.
(b) Type III Permits or Type II Conditional Use Permits: No permits and
construction shall begin or be authorized until 21 days from the date of
notification of approval by the Department of Ecology, or until all review
proceedings are completed as were initiated within the twenty one (21) days
of the date of filing. Filing shall occur in accordance with RCW 90.58.140(6)
and WAC 173-27-130.
(c) Unless a different time period is specified in the shoreline permit as
authorized by RCW 90.58.143, construction activities, or a use or activity for
which a permit has been granted pursuant to this Master Program, must be
commenced within two (2) years of the effective date of a shoreline permit, or
the shoreline permit shall terminate and a new permit shall be necessary.
However, the Director may authorize a single extension for a period not to
exceed one year based on reasonable factors if a request for extension has
been filed with the City before the expiration date and notice of the proposed
extension is given to parties of record and the Department of Ecology.
Construction activities or commencement of construction means that
construction applications must be submitted, permits must be issued, and
foundation inspections must be approved and completed.
(d) A permit authorizing construction shall extend for a term of no more than five
(5) years after the effective date of a shoreline permit, unless a longer period
has been specified pursuant to RCW 90.58.143 or as authorized above. If an
applicant files a request for an extension prior to expiration of the shoreline
permit, the Director shall review the permit and upon a showing of good
cause may authorize a single extension of the shoreline permit for a period of
up to one year; otherwise, said permit shall terminate. Notice of the proposed
permit extension shall be given to parties of record and the Department of
Ecology. To maintain the validity of a shoreline permit, it is the applicant’s
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Attachment IV
responsibility to maintain valid construction permits in accordance with
adopted building codes.
(e) If it is determined that standard time requirements of subsections (d) and (e)
should not be applied, the Hearing Examiner, upon a finding of good cause,
may establish shorter time limits, provided that, as a part of action on a
conditional use or variance permit, the approval of the Department of Ecology
shall be required. “Good cause” means that the time limits established are
reasonably related to the time actually necessary to perform the development
on the ground and complete the project that is being permitted.
(f) For purposes of determining the life of a shoreline permit, the effective date of
a Shoreline Substantial Development Permit, Shoreline Conditional Use
Permit, or Shoreline Variance Permit shall be the date of filing as provided in
RCW 90.58.140(6). The permit time periods do not include the time during
which a use or activity was not actually pursued due to the pendency of
appeals or legal actions, or due to the need to obtain any other government
permits and approvals for the development that authorize the development to
proceed.
(g) It is the responsibility of the applicant to inform the director of other permit
applications filed with agencies other than the City and of any related
administrative or legal actions on any permit or approval.
(h) If an appeal is filed, construction may not commence until disposition of the
appeal unless otherwise established by the Shoreline Hearings Board
pursuant to RCW 90.58.140(5)(b).
20.16.470 Violations and Penalties:
(a) Any person who fails to conform to the terms of a Shoreline Substantial
Development Permit, conditional use permit or variance issued under the
Shoreline Master Program, who undertakes a development or use on
shorelines of the state without first obtaining a permit, or violates any other
provision of the Shoreline Master Program, or who fails to comply with a
cease and desist order issued or notice of violation under Chapter 1.04
BMC may be subject to enforcement and penalties as follows:
(b) Any violation, as noted above, constitutes a civil violation under Chapter
1.04 BMC, as currently enacted or hereinafter amended, for which a
monetary penalty may be assessed and enforcement may be required as
provided therein.
(c) In addition to or as an alternative to any other penalty provided herein or
by law, any person who commits a violation, as noted above, shall be
guilty of a gross misdemeanor pursuant to RCW 90.58.220.
(d) In lieu of or in addition to the above, the City may utilize the enforcement
procedures and remedies, including requiring appropriate correction
action, contained in WAC 173-27-240 through 173-27-300.
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Attachment IV
(e)Any person subject to the regulatory program of this Master Program who
violates any provision of this Master Program or the provisions of a permit
issued pursuant thereto shall be liable for all damages to public or private
property arising from such violation, including the cost of restoring the
affected area to its condition prior to such violation. If a suit is pursued, the
City Attorney shall bring suit for damages under this subsection on behalf
of the City. Private persons shall have the right to bring suit for damages
under this subsection on their own behalf and on behalf of all persons
similarly situated. If liability has been established for the cost of restoring
an area affected by violation, the Court shall make provision to assure that
restoration will be accomplished within a reasonable time at the expense
of the violator. In addition to such relief, including monetary damages, the
Court in its discretion may award attorney’s fees and costs of the suit to
the prevailing party.
20.16.480 Shoreline Moratorium:
The City Council may adopt moratoria or other interim official controls as
necessary and appropriate to implement the provisions of the Shoreline
Management Act as outlined in RCW 90.58.590.
20.16.490 Restoration Project Relocation of Ordinary High Water Mark:
The City may grant relief from Shoreline Master Program development standards
and use regulations when the following apply:
(a) A shoreline restoration project causes, or would cause, a landward shift in
the ordinary high water mark, resulting in the following:
(1) Land that had not been regulated under this chapter prior to
construction of the restoration project is brought under shoreline
jurisdiction; or
(2) Additional regulatory requirements apply due to a landward shift in
required shoreline buffers or other regulations of the applicable
Shoreline Master Program; and
(3) Application of Shoreline Master Program regulations would
preclude or interfere with use of the property permitted by local
development regulations, thus presenting a hardship to the project
proponent.
(b) The proposed relief meets all of the following criteria:
(1) The proposed relief is the minimum necessary to relieve the hardship;
and
(2) After granting the proposed relief, there is net environmental benefit from
the restoration project; and
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Attachment IV
(3) Granting the proposed relief is consistent with the objectives of the
shoreline restoration project and consistent with the Shoreline Master
Program; and
(4) Where a shoreline restoration project is created as mitigation to obtain a
development permit, the project proponent required to perform the
mitigation is not eligible for relief under this section.
(c) If approved by the City, the application for relief must be submitted to the
Department of Ecology for written approval or disapproval.
(1) This review must occur during the Department of Ecology's normal review
of a shoreline Substantial Development Permit, Conditional Use Permit,
or variance. If no such permit is required, then the department shall
conduct its review when the local government provides a copy of a
complete application and all supporting information necessary to conduct
the review.
(2) Except as otherwise provided in subsection d of this section, the
Department of Ecology shall provide at least 20-days notice to parties
that have indicated interest to the department in reviewing applications
for relief under this section, and post the notice on to their website.
(3) The department shall act within 30 calendar days of close of the Public
Notice period, or within 30 days of receipt of the proposal from the local
government if additional public notice is not required.
(d) The public notice requirements of subsection c of this section do not apply
if the relevant shoreline restoration project was included in a Shoreline
Master Program or shoreline restoration plan as defined in WAC 173-26-
201, as follows:
(1) The restoration plan has been approved by the department under
applicable Shoreline Master Program guidelines; and the shoreline
restoration project is specifically identified in the Shoreline Master
Program or restoration plan or is located along a shoreline reach
identified in the Shoreline Master Program or restoration plan as
appropriate for granting relief from shoreline regulations; and the
Shoreline Master Program or restoration plan includes policies
addressing the nature of the relief and why, when, and how it would be
applied.
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Attachment V
20.16.500 Nonconforming Provisions
20.16.510 – Intent
20.16.520 – Establishment of a Legal Nonconformity and Applicability
20.16.530 – Annexations
20.16.540 – Definitions
20.16.550 – Nonconforming Lots
20.16.560 – Nonconforming Structures
20.16.570 – Unsuitable Structure for Uses
20.16.580 – Unlawful Uses and Structures
20.16.510 Intent:
(a) To avoid undue hardship to property owners whose existing lots,
structures, or uses were lawful at the time of their establishment, but are
prohibited, regulated, or restricted under the Shoreline Master Program
and Zoning Code.
(b)To set forth conditions under which these nonconformities may continue to
exist until such a time they are discontinued as prescribed by law. Nothing
in this chapter shall be deemed to require a change in the plans,
construction or designated use of any building or site legally established.
20.16.520 Establishment of a Legal Nonconformity and Applicability:
(a) A party asserting the existence of a lawfully established nonconforming
lot, use, or structure has the burden of proof that the lot, use, or structure
was not substandard in meeting the requirements of the Shoreline Master
Program or Zoning Code that were in effect at its creation.
(b) The rules of this chapter are applied by first reviewing which provisions
are applicable to the nonconformity. When a combination of
nonconforming lot, use, or structure exists, each segment of the
nonconformity is reviewed independent of the others.
20.16.530 Annexation:
(a) Lots, structures, uses of land, and structures that were legally in existence
prior to annexation to the City, but that do not conform to the requirements
of the Shoreline Master Program or Zoning Code following the date of
annexation, shall become a legal nonconformity subject to the
requirements of this chapter.
20.16.540 Definitions:
The following definitions are applicable to this chapter:
(a) Nonconforming Lots: A lot that does not meet the lot area, width or street
frontage requirements of the Shoreline Master Program or Zoning Code,
but was lawfully created prior to the effective date of the adoption of the
Shoreline Master Program and/or Zoning Code or subsequent
amendments thereto.
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Attachment V
(b)Nonconforming Use: Any activity, development or condition that by the
Shoreline Master Program or Zoning Code is not permitted outright or as
an accessory use, or is not permitted by a Conditional Use Permit or other
special permitting process; but was lawfully created prior to the effective
date of the Shoreline Master Program or Zoning Code or subsequent
amendments thereto and was continually maintained as defined in this
chapter. A nonconforming use may or may not involve buildings or
structures and may involve part of or all of a building or property.
(c)Nonconforming Structure: A building or structure that does not comply with
the required setbacks, height, lot coverage and other development
requirements of theShoreline Master Program or Zoning Code, but was
lawfully constructed prior to the effective date of the Zoning Code and/or
Shoreline Master Program or subsequent amendments thereto, and was
continually maintained as defined in this chapter.
(d) Substantial Destruction: For the purpose of this chapter, "substantial
destruction" means the repair or replacement of a building or structure
which exceeds one of the following:
(1) Seventy five percent (75%) of the assessed value of the structure
as determined by the Kitsap County Assessor. An appraised
value may be substituted for the assessed value at the request of
the applicant and as deemed appropriate by the Director; or
(2) Seventy five percent (75%) of the structural components of the
building envelope that are being replaced. The building envelope
includes, but is not limited to, exterior walls, load bearing beams,
roof, and foundation.
20.16.550 Nonconforming Lots:
(a) Continuation and Development: A nonconforming lot may be developed
for any use allowed by the Shoreline Master Program and Zoning Code,
provided the development meets, through design or by an approved
variance, the applicable development standards within.
(b) Illegal Lot Modifications or Split. The following is applicable to all lots:
(1) No lot may be modified, divided, or adjusted in a manner that would
violate the dimensional or area requirements of the Shoreline Master
Program or Zoning Code.
(2) A government agency may lawfully modify a lot in a manner that
would result in nonconformity if portions of a lot are acquired for a
public use or purpose or is allowed otherwise by law.
20.16.560 Nonconforming uses:
(a) Continuation: Any legally established nonconforming use may be
continued until such time that it is discontinued as prescribed in
subsection (4) or (5) of this section.
2
Attachment V
(b)Change of Use: A structure or property containing a nonconforming use
may be changed to the following:
(1) A use that conforms to the requirements of the Shoreline Master
Program and Zoning Code; or
(2) Another nonconforming use; provided, that all of the following
criteria are met:
(i) A Shoreline Conditional Use Permit is approved pursuant to
BMC 20.16.400; and
(ii)The existing nonconforming use was not discontinued as
prescribed in subsection (d) or (e) of this section; and
(iii) The new use is clearly a reduction in the nonconformity and
intensity of the existing nonconforming use; and
(iv) There is no net loss of ecological processes and functions
resulting from the change in use.
(c)Use Expansion: A nonconforming use may only be expanded or enlarged,
in one (1) of following circumstances:
(1) If the existing nonconformity is not utilizing the entire structure, it
may be expanded to other portions of the structure provided the
enlargement is within the existing physical space of the building or
use and all of the following criteria are met:
(i) There is no increase outside the building walls of noise, light
and glare and other proximity impacts that may adversely affect
adjacent uses or elements of the natural environment; and
(ii) There is no net loss of ecological processes and functions
resulting from the alteration; and
(iii) The expansion or enlargement does not restore the structure
from substantial destruction.
(2) Residential dwellings may have the building area expanded if all of
the following criteria are met:
(i) The number of dwelling units is not increased; and
(ii) There is no decrease in the number of off-street parking spaces
below the minimum requirements and the addition complies with
all applicable development standards; and
(iii) There is no expansion into an area designated as a critical area
or shoreline buffer or building setback; and
(iv) There is no net loss of ecological processes and functions
resulting from the expansion.
(3) Acquisition of additional accessory off-street parking provided the
addition parking is not located in the buffer or setback areas.
3
Attachment V
(d)Discontinuation: A nonconforming use that is discontinued shall have
its legal nonconforming status terminated and any subsequent use of
the property or building shall be that of a use that conforms to all
applicable development standards. A nonconforming use is determined
to be discontinued if any of the following circumstances apply:
(1) The nonconforming use is changed to a conforming use; or
(2) Another nonconforming use is approved pursuant to subsection
(b)(2) of this section; or
(3) The nonconforming use has ceased for a period of more than one
(1) year.
(e)Damage or Destruction: If a structure containing a nonconforming use
experiences substantial destruction, it shall constitute a discontinuation
of the nonconforming use, except the nonconforming use may be
allowed to continue under any of the following circumstances:
(1) The structure has suffered substantial destruction as a result of fire
or other casualty not intentionally caused by the owner and a
complete building permit application is filed within one (1) year of
such fire or other casualty.
(2) The nonconforming use is a detached or attached single-family
dwelling located in a zone in which they are prohibited. The use
may be re-established provided a complete building permit
application is filed within one (1) year of substantial destruction.
(f) Repair and Maintenance: A building or structure containing a
nonconforming use may be repaired and maintained if the work does
not restore it from substantial destruction.
20.16.560 Nonconforming Structures:
(a) Continuation: Any legally established nonconforming structure may be
continued until such time that it experiences substantial destruction. If
a structure experiences substantial destruction it shall constitute a
discontinuation of the nonconforming structure and have its
nonconforming status terminated. Any subsequent repair or
reconstruction of the structure shall comply with the requirements of
the Shoreline Master Program and the Zoning Code, except as follows:
(1) The nonconforming structure may be allowed to be rebuilt within
the same footprint and size if the structure has suffered substantial
destruction as a result of fire or other casualty not intentionally
caused by the owner, and a complete building permit application is
filed within one (1) year of such fire or other casualty.
(b) Expansion: A nonconforming structure may be enlarged or extended
provided the enlargement complies with the applicable setback;
height, lot coverage, and other site development requirements of the
Shoreline Master Program and the Zoning Code provided such work
4
Attachment V
does not restore the structure from substantial destruction. Such
expansions shall comply with the following:
(1) Expansions located outside of the setback and or buffer but within
the shoreline jurisdiction may have a footprint expansion of up to
five hundred (500) square feet without being required to provide
vegetation enhancement. Such an addition must comply with all
applicable development standards.
(2) Expansions located outside of the setback and or buffer but within
the shoreline jurisdiction with a footprint larger than five hundred
(500) square feet may be permitted provided the existing buffer is
densely vegetated with a native plant community. Should the
vegetation within the buffer not be a dense community of native
vegetation, enhancement shall be provided as follows (These
provisions are not applicable to that portion of a water dependent
use which requires direct access to the shoreline):
(i)A native community of vegetation shall be provided on the
waterward twenty five percent (25%) of the required
buffers width, with a minimum required width of ten feet
(10’).
(ii) The area to be planted shall comply with the vegetation
management plan requirements of BMC 20.16.620.
(iii) There is no net loss of ecological processes and functions
resulting from the alteration.
(3) Expansions located within the setback/buffer are may be permitted
provided:
(i) Such expansion is located no further waterward than the
existing foundation. In the case that no foundation exists, the
expansion shall not exceed the existing building line.
(ii) The expansion shall be limited to a footprint of two hundred and
fifty (250) square feet.
(iii) At least fifty percent (50%) of the required buffer shall be
restored with natural vegetation, if not currently characterized by
a dense community of native vegetation. Alternately the
Director may approve the enhancement of 50% of the distance
between the structure and the shoreline. Such vegetation shall
be located as close to the shoreline as possible.
(iv) Natural vegetation to be planted must comply with the
requirements for vegetation management plans as established
in BMC 20.16.620 for the portion of the buffer to be planted.
(v) There is no net loss of ecological processes and functions
resulting from the alteration.
5
Attachment V
(c) Repair and Maintenance: Normal repair and maintenance work on a
nonconforming structure may be performed that maintains continued safe
and sanitary conditions provided such work does not restore the structure
from substantial destruction as defined above in BMC 20.16.540.
20.16.570 Unsuitable Structures for Uses
:
(a) An existing structure constructed for a use no longer allowed by the
Shoreline Master Program or Zoning Code, which has lost its legal
nonconforming status, and is not suited for other uses permitted by the
Shoreline Mater Program or Zoning Code, may have its use re-established
if a shoreline Conditional Use Permit is approved pursuant to BMC
20.16.400; provided the applicant demonstrates that:
(1) The remaining life of the structure is adequate to warrant the
proposed use of the structure; and
(2) An allowed use of the zone cannot be established; and
(3) There is a demand for the use in the community or region that
provides a public benefit; and
(4) The use and renovation to the structure is not inconsistent with the
goals and policies of the Shoreline Master Program and
Comprehensive Plan; and
(5) The Critical Area/Shoreline buffers are restored with native
vegetation to the extent feasible as established by a qualified
professional as outlined in vegetation management plan
requirements (BMC 20.16.620); and
(6) There is no net loss of ecological processes and functions resulting
from the use.
20.16.580 Unlawful Uses and Structures:
(a) Nothing in this chapter shall be interpreted to be authorization for,
or approval of, the continuation of the use of a structure that is in
violation of any ordinance in effect at the time of the passage of the
ordinance codified in this chapter. The intermittent, temporary, or
illegal use of land or structures shall not be sufficient to establish
the existence of a nonconforming use and/or structure.
(b) Any use, structure, or lot which did not comply with the all
applicable development standards at the time it was established or
constructed, and does not comply with the current development
standards, is illegal and shall be brought into compliance with all
applicable development standards.
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