Chapter 22.08
SHORELINE REVIEW PROCESS

Sections:

Article 1 – Permits and Statements of Exemption

22.08.010    Substantial development permit.

22.08.020    Conditional use permit.

22.08.030    Variance permit.

Article 2 – Shoreline Permit Procedure

22.08.040    Application procedure for permits.

22.08.050    Application for statements of exemption.

22.08.060    Statement of exemption.

22.08.070    Hearing procedure.

22.08.080    Appeal procedure.

22.08.090    Enforcement process.

22.08.100    Permit revisions.

Article 1 – Permits and Statements of Exemption

22.08.010 Substantial development permit.

The act provides that no substantial development shall be undertaken on the shoreline of the state without first obtaining a substantial development permit (SDP). A “substantial development” shall mean any development of which the total cost or fair market value exceeds two thousand five hundred dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state.

The act provides a limited number of exceptions to the definition of substantial development permit. Those exceptions are contained in RCW 90.58.030 and Chapter 22.12. Whether or not a development constitutes a substantial development, a development must comply with the requirements contained in the act and the master program and may require other permits or approvals under the master program. Permits may be issued with limitations or conditions which assure consistency with the act and this master program.

(Res. 27-1999 Exh. A, Part I ((A)(1)(a)), 1999)

22.08.020 Conditional use permit.

“Conditional use” means a use, development, or substantial development which is classified as a conditional use or is not classified within the master program (WAC 173-27-160).

Requests for deviating from the permitted uses in a shoreline area requires a conditional use permit. Such requests shall be evaluated using the criteria set forth in WAC 173-27-160.

The applicant must supply whatever evidence, information, or agreements that are necessary to evaluate the proposal. Shorelines conditional use permits shall be granted only after the applicant can demonstrate all of the following:

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

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

(3)    That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the Comprehensive Plan and Shoreline Management Master Program;

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

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

All applications for shoreline conditional use permits shall be forwarded to the Department of Ecology pursuant to WAC 173-27-200, for final approval, approval with conditions, or denial. No approval or disapproval shall be considered final until it has been acted upon by the Department of Ecology.

Certain classifications of uses, as provided in this master program, require that special conditions be attached to the use to prevent undesirable effects, to assure compatibility with specific shoreline environments and to assure consistency with the act and this master program. Other uses which are not classified as conditional uses under this master program may be authorized as conditional uses provided the applicant can demonstrate that extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of the master program. In granting of all conditional use permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. Cumulative impacts may serve as a basis for approval, denial or conditioning project permits.

(Res. 27-1999 Exh. A, Part I (A(1b)), 1999)

22.08.030 Variance permit.

The purpose of a variance permit is strictly limited to granting relief from specific bulk, dimensional, or performance standards set forth in the master program where there are extraordinary or unique circumstances relating to the property such that the strict implementation of the master program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020 (WAC 173-27-170).

(1)    Variance permits should be granted in a circumstance where denial of the permit would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect.

(2)    Variance permits for development that will be located landward of the ordinary high water mark, as defined in RCW 90.58.030(2)(b), except within those areas designated as marshes, bogs, or swamps pursuant to Chapter 173-22 WAC, may be authorized provided the applicant can demonstrate all of the following:

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

(b)    That the hardship described in subsection (a) is specifically related to the property, and is the result of unique conditions such as irregular lot shape, size, or natural features and the application of the master program, and not, for example, from deed restrictions or the applicant’s own actions;

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

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

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

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

(3)    Variance permits for development and/or uses that will be located waterward of the ordinary high water mark (OHWM), as defined in RCW 90.58.030(2)(b), or within any wetland as defined in RCW 90.58.030(2)(h), may be authorized provided the applicant can demonstrate all of the following:

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

(b)    That the proposal is consistent with the criteria established under subsections (2)(b) through (2)(f) of this section; and

(c)    That the public rights of navigation and use of the shorelines will not be adversely affected.

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

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

(Res. 27-1999 Exh. A, Part I (A(1c)), 1999)

Article 2 – Shoreline Permit Procedure

22.08.040 Application procedure for permits.

An application for a permit shall be made on forms prescribed by the shoreline administrator. The application shall be made on behalf of the property owner, lessee, contract purchaser or other person entitled to possession of the property. The application shall include, but may not be limited to general location of the proposed project, name of water area, current use of the property, proposed use of the property, and project diagrams, an application form for the specific permit requested, a SEPA Environmental Checklist, notice forms as required, site plans and payment of applicable fees. If the application involves state owned land, a preapplication conference with the Department of Natural Resources land manager shall be held prior to submittal of the application. Confirmation of the preapplication conference shall be submitted as a requirement of the local application process. Upon receipt of a complete application, the applicant shall be responsible for publishing a public notice in the newspaper of general circulation for two days, two consecutive weeks. Upon submittal of the affidavit of publication of the public notice to the administrator, a hearing date will be set before the hearing examiner. Property owners for four hundred feet surrounding the project site will be notified by mail of the time, date and place of the public hearing. The public hearing will be conducted pursuant to Title 21 of this code.

(Res. 27-1999 Exh. A, Part I (A(2a)), 1999)

22.08.050 Application for statements of exemption.

Upon receipt of a request for an exemption, the shoreline administrator shall grant, approve with conditions, or deny the application. Exemptions shall be narrowly construed (WAC 173-]27). The decision of the shoreline administrator will be mailed or delivered to the applicant and other interested parties. The applicant will post the decision on the site, for a period of ten days directly following the issuance of the exemption. The decision of the shoreline administrator may be appealed to the hearing examiner within ten days of the date of decision. Upon receipt of a notice of appeal, the hearing examiner will set a public hearing on the application for the statement of exemption. Notice of time, place, and date of the public hearing shall be provided to the applicant and other interested parties. The hearing procedure shall be the same as that set forth for a hearing on a shoreline permit.

(Res. 27-1999 Exh. A, Part I (A(2b)), 1999)

22.08.060 Statement of exemption.

Certain activities, developments or uses are exempt from the substantial development permit requirements of the act and the master program. These developments are those set forth in WAC 173-27 which do not meet the definition of substantial development under RCW 90.58.030(3)(e). However, exemption from the permit requirements does not exempt the activity, development, or use from complying with the policies of the act or the master program. Refer to the definition of “substantial development” (See Chapter 22.12) for additional clarification of activities which are exempt from a substantial development permit.

(Res. 27-1999 Exh. A, Part I (A(2c)), 1999)

22.08.070 Hearing procedure.

The applicant has the burden of proof to establish that the proposed development is consistent with the act, the master program, and other applicable county policies and regulations. Upon consideration of the evidence offered at the public hearing, the hearing examiner will issue a decision. The decision will contain findings of fact and conclusions describing the manner in which the decision is consistent with the act and this master program. An objection to the examiner’s decision may be filed with the board of county commissioners. The board’s decision constitutes the final local decision on a permit. The decision will be mailed to the applicant and other interested parties, the Department of Ecology and the Attorney General.

(Res. 27-1999 Exh. A, Part I (A(2d)), 1999)

22.08.080 Appeal procedure.

A final local decision of the board of county commissioners relating to a permit under the master program may be appealed to the Shorelines Hearings Board. Substantial development permits, conditional use permits, variances, and revisions are included in the definition of permits. A decision of the board of county commissioners relating to an exemption may be reviewed by a Superior Court by writ of certiorari. An application for a writ shall be filed and served within thirty days of the decision.

(Res. 27-1999 Exh. A, Part I (A(2e)), 1999)

22.08.090 Enforcement process.

(1)    Local Enforcement. The shorelines administrator and the code enforcement personnel of the department of community development shall have primary authority to investigate all alleged violations of permits, the master program and the act within unincorporated Kitsap County. The State Department of Ecology shall also have enforcement authority pursuant to Chapter 90.58 RCW and Chapter 173-27 WAC. Any combination of regulatory orders, civil penalties, civil court action, criminal prosecution and permit revocation may be used to achieve compliance with the terms of a permit, the master program and the act.

(2)    Construction During Review. No construction pursuant to a substantial development permit, variance or conditional use permit, shall begin until the review proceedings are complete as more specifically set forth in RCW 90.58.140.

(3)    Rescission of Permits. Permits may be rescinded by the board of county commissioners upon a finding that the permittee has not complied with the conditions of a permit.

(4)    Regulatory Orders. The shorelines administrator and the code enforcement personnel of the department of community development shall have the authority to issue cease and desist orders pursuant to WAC 173-27, stop work orders, and other regulatory orders requiring specific action be taken to enforce the provisions of a permit, the master program, or the act.

(5)    Civil Penalties. Civil penalties not to exceed one thousand dollars per day may be imposed upon a person who fails to conform to the terms of a permit issued pursuant to the master program, who undertakes development or use on shorelines of the state without first obtaining a permit, or who fails to comply with a cease and desist or other regulatory order issued pursuant to the master program and/or Chapter 173-27 WAC.

(6)    Civil Enforcement. Process for civil enforcement shall conform to Chapter 173-27 WAC, as now or hereafter amended.

(7)    Enforcement. The Kitsap County prosecuting attorney shall have authority to bring injunctive, declaratory or other actions as are necessary to insure that no uses are made of the shorelines of the state in conflict with the provisions of Chapter 90.58 RCW, the master program, or a permit issued pursuant to the master program, and to otherwise enforce the provisions of Chapter 90.58 RCW, the master program, or a permit issued pursuant to the master program.

(8)    Criminal Penalties. Any person willfully engaged in activities on the shorelines of the state in violation of the act, the master program, or any rules and regulations adopted pursuant thereto shall be guilty of a gross misdemeanor, pursuant to RCW 90.58.220.

(Res. 27-1999 Exh. A, Part I (A(2f)), 1999)

22.08.100 Permit revisions.

Shoreline permits may be revised, subject to the requirements listed below and found in WAC 173-27-100.

When an applicant seeks to revise a permit, the county shall request from the applicant detailed plans and text describing the proposed changes in the permit.

(1)    If the county determines that the proposed changes are within the scope and intent of the original permit, the shoreline administrator may approve a revision.

(2)    “Within the scope and intent of the original permit” means all of the following:

(a)    No additional over-water construction is involved except that pier, dock, or float construction may be increased by five hundred square feet or ten percent from the provisions for the original permit, whichever is less;

(b)    Ground area coverage and height of each structure may be increased a maximum of ten percent from the provisions of the original permit;

(c)    The revised permit does not authorize development to exceed height, lot coverage, setback, or any other requirements of the master program except as authorized under the original permit;

(d)    Additional landscaping is consistent with conditions (if any) attached to the original permit and with the master program;

(e)    The use authorized pursuant to the original permit is not changed; and

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

(3)    If the sum of the revision and any previously approved revisions under WAC 173-27-100 violate the provisions in WAC 173-27-100, Kitsap County shall require that the applicant apply for a new permit in the manner provided for herein.

(4)    Within eight days of the date of final county action, the revision including the revised site plan, text and the final ruling on consistency with this section shall be filed with the Department of Ecology and the Attorney General. In addition, the county shall notify parties of record during the original issuance of the permit.

(5)    If the revision to the original permit involves a conditional use or variance which was conditioned by the Department of Ecology, the county shall submit the revision to the Department of Ecology for its approval, approval with conditions, or denial. The revision shall indicate that it is being submitted under the requirements of this subsection. The Department of Ecology shall render and transmit to the county and the applicant its final decision within fifteen days of the date of the Department of Ecology’s receipt of the submittal from the county. Kitsap County shall notify parties of record of the Department of Ecology’s final decision.

(6)    The revised permit is effective immediately upon final action by Kitsap County or, when appropriate under WAC 173-27, by the Department of Ecology.

(7)    Appeals shall be in accordance with RCW 90.58.180 and shall be filed within thirty days from the date of receipt of the county’s action by the Department of Ecology or, when appropriate under WAC 173-27 the date the Department of Ecology’s final decision is transmitted to the county and the applicant. Appeals shall be based only upon contentions of noncompliance with the provisions of WAC 173-27 above. Construction undertaken pursuant to that portion of a revised permit not authorized under the original permit is at the applicant’s own risk under the expiration of the appeals deadline. If an appeal is successful in proving that a revision is not within the scope and intent of the original permit, the decision shall have no bearing on the original permit.

(Res. 27-1999 Exh. A, Part I (A(2g)), 1999)