HomeMy WebLinkAboutord1997-031WHATCOM COUNTY COUNCIL AGENDA BILL NO. 97-225
SUBJECT. An Ordinance amending the Official Whatcom County Shoreline Management Plan, Title 23.
ATTACHMENTS: Planning Commission Agency Report
Proposed Ordinance
Planning Commission Draft Minutes
Staff Report
SUMMARY STATEMENT.. Please complete sections of box as appropriate & explain the item below.
Related County contract k: n/a
Should Clerk schedule a hearing? NO /X/ YES / / Requested date:
Amount budgeted for this item/ project: $ n/a
Is it or will it be within budget? YES /X/ NO / / lease explain below n/a
Budget line item number(s): n/a ,
'.EARANCES
Initial
Date
Date Received in Council Office:
A enda date
Assigned to:
Originator:
•,:,,
u
6/17/97
Introduction
r
Division Head: Sylvia Goodwin
)kAtll
('�j^:
E4 " ' ``'
7/l/97
Planning / Council
Dept. Head: Michael Knapp
Prosecutor:
L
Purchasing /Budget:
"`'"
^i iGlp`q�
Executive:
SUBJECT. An Ordinance amending the Official Whatcom County Shoreline Management Plan, Title 23.
ATTACHMENTS: Planning Commission Agency Report
Proposed Ordinance
Planning Commission Draft Minutes
Staff Report
SUMMARY STATEMENT.. Please complete sections of box as appropriate & explain the item below.
Related County contract k: n/a
Should Clerk schedule a hearing? NO /X/ YES / / Requested date:
Amount budgeted for this item/ project: $ n/a
Is it or will it be within budget? YES /X/ NO / / lease explain below n/a
Budget line item number(s): n/a ,
is is a request to amend the Official Whatcom County Shoreline Management Plan, Title 23 for compliance with
%- 11apter 173 -27, WAC and to correct minor problems including conflict, lack of clarity and simple errors.
ORIGINATOR'S RECOMMENDED ACTION. The Director of Planning and Development Services recommends
that Council adopt proposed amendments to Title 23 as attached.
COMMITTEE ACTION TAKEN.•
COUNCIL ACTION TAKEN:
1997-225 6/17/97: Introduced
7/1/97: Amended and adopted 7 - 0. Ord. 97 -031
Related File Numbers: Ordinance or Resolution Number (this item only):
File Ref:05 -97:ZT
SPONSORED BY: Consent
PROPOSED BY: Planning
INTRODUCTION DATE: 6/17/97
1 ORDINANCE NO. 97 -031
K
AN ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY SHORELINE
MANAGEMENT PLAN, TITLE 23 TO CLARIFY EXISTING CODE LANGUAGE.
WHEREAS, in March 1995, the Whatcom County Council directed staff to develop a
regulatory reform strategy; and
WHEREAS, phase one of the regulatory reform strategy was to clarify existing code
language in Title 20 and 21, this second phase is to improve clarity and reduce conflict in
Whatcom County Code, Title 23; and
WHEREAS, staff, working with a consultant, developed a preliminary list of changes.
related to Title 23, to clarify existing code language; and
WHEREAS, the Deputy SEPA Official determined that the proposed changes to Title
23 are exempt from SEPA; and
WHEREAS, pursuant to RCW 36.70.590 legal notice was published in the
Bellingham Herald on February 13, 1997 ; and
WHEREAS, the Planning Commission held a public hearing on February 27, 1997
and addressed the proposed amendments and considered all public testimony; and
WHEREAS, the Planning Commission unanimously recommended approval of the
request; and
WHEREAS, the proposed amendments will improve the readability and efficiency of
the Whatcom County Code, and will result in significant administrative improvements to
the Shoreline Management Program of Whatcom County, and
WHEREAS, the amendments will bring the County into compliance with the recently
adopted Washington Administrative Code, Chapter 173 -27.
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. Title 23 of the Whatcom County Code shall be amended as indicated in
Attachments "A" and "B ".
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Section 2. Adjudication of invalidity of any of the sections, clauses, or provisions of this
Ordinance shall not affect or impair the validity of the Ordinance as a whole or any part
thereof other than the part so declared to be invalid.
ADOPTED this 1 day of July If 1997.
ATTEST:
......... .
Dana Brown- Davis, Council Clerk
APPRpVED as to form:
Karen Frakes, Civil Deputy Prosecutor
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
L. Ward Nelson, Chairperson
Page 2
Approve ) Denied
Pete Kremen, Executive
Date: 7') ) — l
ATTACHMENT A
REGULATORY REFORM
Proposed Code Scrub Amendments
TITLE 23 WCC
Title 23 Whatcom County Shoreline Program: Correct references to WAC sections throughout
entire program:
Discussion: On October 31, 1996, a change to the Washington Administrative Code
(WAC) covering the administration of certain provisions of the state shoreline program
became effective. The changes approved by Ecology resulted in the replacement of
previously existing chapters WAC 173 -14, 173 -17, and 173 -19 with two new chapters
WAC 173 -26 and 173 -27. The old WAC references are used at a number of locations in
our program. These references need to be changed to their new section numbers to be
consistent with the new WAC numbering. -'
23.50.10 Applicability, Exemptions and Nonconforming uses - Geographic Jurisdiction. Change
20.50. 10 to read as follows:
The provision of this program shall apply to all shorelines, all Shorelines of State -wide
Significance and 's all as defined in Chapter 23.110 in unincorporated
Whatcom County. The location and extent of such shorelines are shown on the Official
Shoreline Map appended to this document (Appendix D) as an integral part of-this
program.
Discussion: clarification, The change is being proposed to be consistent with state law.
The term shorelands is now used in the state shoreline management act to cover areas
previously defined as wetlands under the act. The term wetland as previously defined in
the act conflicted with the term wetlands as used by federal, state and local agencies for
wetland critical areas. New definitions for Shorelands and Wetlands are also being
proposed. (See last section of this report) The new definitions are consistent with the
definitions found in the State Shoreline Management Act.
3/01/97 Draft
23.50.23 Application to Persons and Development. amend section 23.50.23 to read as follows:
No substantial development as defined in Chapter 23.110 shall be undertaken by any
person on shorelines without first obtaining a substantial development permit from
Whatcom County; PROVIDED that, such permit shall not be required for the €ellowieg
activities hi �
in Section 23.50.392
st+stmtial development permit requirement purstimit to R-GW 90.5 8.03 0(3)(e) m
amended aftd W-AG 173 14 949(i).
Discussion: The change is proposed to reduce superfluous language and to eliminate an
incorrect reference to WAC 173 -14- 040(1) which has been changed to 173 -27- 040(1).
References to sections in state law and state WAC are not necessary since Whatcom
County's shoreline program is adopted by the Department of Ecology as part of the state
administrative code.
23.50.30 Exemptions. Add new section 23.50.31, renumber following sections in 23.50.30 and
revise language of existing section 23.50.31, 32 and 33.
Note: The proposed changes to 20.50.30 are rather extensive. A number of changes have
been made to the exemptions section of the Washington Administrative Code by the
Department of Ecology over the years. Those changes are included here to bring our
shoreline program up to date. A careful review of the changes will show that most of
them are for the purpose ofproviding better guidance as to what developments qualify
and what do not. From the standpoint of administration, the more consistent our program
is with the requirements of the Washington Administrative Code, the less likely it will be
that an exemption granted by Whatcom County would be overturned on appeal. This is
particularly important since the decision of the County to grant an exemption is not
normally reviewed by DOE. For this reason it is important that the county be
scrupulously accurate in determining what is exempt and that determination be
consistent with the state standards.
.31 Application and interpretation of exemptions.
deuelpm�nts must be consst�tw�th�pohcies�andpv� as �ogn
,.moo
anc1`the S�oreline�,Manageme�nlAct��A developmerit�oryu��hat�s�listed� co�io
2 3/01/97 Draft
ME
Discussion: consistency. The language proposed above is out of WAC 173-27-040(1) and
provides a more comprehensive statement of how the exemptions are intended to be
construed. The language above expands upon the language in our program at 23.50.32
regarding the statement of exemptions. That section is set out below and proposed for
renumbering to 23.50.34.
The following activities shall be considered exempt from the requirement to obtain a
shoreline substantial development permit. A statement of exemption, as provided for in
Section 23.50.323 of this Program shall be required only for those activities listed in
section 23.50.324(b)f or where tmeerfftinty exists regarding qualifieations for th-e
exemptiott!
(Note on the above change to 23.50.32(c) says essentially the same thing as the language
that is being deleted)
(a) Any development of which the total cost or fair market value,
whichever is the higher, does not exceed two thousand five hundred dollars ($2,500), if
such development does not materially interfere with the normal public use of the waters
cost or f
contributed
3 3/01/97 Draft
(b) 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 conditions.
"Normal repair" means to restore a development to a state comparable to its original
condition within a reasonable period after decay or partial destruction except where repair
causes substantial adverse
effects to tote shoreline resource or environment. R � tern "end e o
NO M
(c) Construction of the normal protective bulkhead common to single
family residences. A "normal protective" bulkhead includes thosetructural rand,
nostru�tura�de�� ._ _ a ustalledat or near, andllel toy the
ordinary high water mark and for ties ,x a
of
.., from protectng to
.,<
or damag y erosion. , not for the purpose of eredting land. IMM- -jm'al ptotectiye
cu icyalc� 1 %w�liay`�iied fq1� iWhll� ere an existing
bulkhead is beinge�b nstrctioQaerl�ealw1 ontithbexi`stit ali
replaeed, it shall be constructed no further waterward of the existing bulkhead than is
necessary for construction of new footings �Vhnabulkheaihasd�tertoatedstgh )tat
po�ec�s�rnay�b,�cc�n��ieertda`o" rofect�va�bulkh�a���vhen�an�� `�tural�el�ment
�rewcons" stentith��th�et r�b��re�quirmerit�att� .when�pro�ect�becnfappr�edb
th�de�iartment�of�fih��d�wildlYf�; -
(d) 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 Program. Emergencyonstrctiondoes not inclucl
meansto�addres , #he�eme����i °��on� �ip�tab "ate�nefi�o� ;the ern�erge�cy �'�'att+�� e
new structure shall�be�emo��edor��any�permi�luch `uttb�ild haveb e�i�requ�red�bsen�an
4 3/01/97 Draft
(e) Construction and practices normal or necessary for farming, irrigation,
and ranching activities, including agricultural service roads and utilities, ,, §M ,
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, J�hat a feedlot of any size, all processing
plants, other activities of a commercial nature, alteration of the contour of the sloNards
arett-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 livestockfe butshallnatincludelaoor, fops etiUor
liyestoclfeeding and/or grazing, nor shall it include normal livestock wintering
operations;
(f) Construction or modification, by,oriinde f fheth�tb�Coast
G�uardde�s'gn�tomaeuent author,of navigational aids such as channel
markers and anchor buoys.
(g) Construction �nshoxelds by an owner, lessee, or contract purchaser
of a single family or multiple fimtily-residence& and normal apptrtenmees for ' u
own use or for the use of #h kis family, which residence does not exceed a height of 35
feet above the average grade level and which meets all requirements of the State agency
or local government having jurisdiction thereof. M'Single family residences means a
detached dwelling designed for and occupied by one family including those structures
and developments within contiguous ownership which are a normal appurtenance as
defined in Section 23.110.A.
(h) Construction of a dock, including a community dock, designed for
pleasure craft only, for the private non - commercial use of the owner, lessee, or contract
purchaser of a single - family 049# lt� residence-p ,_ ' dire
market value, --•' iehever iiR
higher, of the dock does not exceed $2,500.
(�2) I, fresh�w�e�s�the�fair�market�y "a`l�e�n�thedockd��ri�t ex��ed�ten
For etpurpose o�tlus sectioir al ;wateryshalliinc�ud� the ti lly uifl zinced mar�iie and
5 3/01/97 Draft
(i) Operation, maintenance, or construction of canals, waterways, drains
reservoirs, or other facilities than now exist or are hereafter created or developed as part
of an irrigation system for the primary purpose of making use of system waters including
return flow and artificially stored ground water for the irrigation of lands.
0) The marking of property lines or corners on state owned lands; when
such marking does not significantly interfere with normal public use of the surface of the
water.
(k) Operation and maintenance of any system of dikes, ditches, drains or
other facilities existing on Junf7S the effeetive date of this 1945 antendatery aet
which were created, developed or utilized, primarily as a part of an agricultural drainage
or diking system; and
(1) Any project with a certification from the governor pursuant to Chapter
80.50 RCW.
(1�)�M." act does tr in e rem tYi�th 1 fa e
r: .., .rst aM,F >.:�� �.,. �.;��'., >.K .�s'S.:
N
(S��Th�e actx�ifyisn�ot� `�b�ect�t�the�perm�tt n W
9Q�58�SS�0
�fih�othstat�`agencies un�1e°�cHapter�4� 21AC�RG�W
(a)Watershecl�rest�?rataan protects as clefineclh�re���� � ' "�trato
6 3/01/97 Draft
shall review thepro�ectsfor ;consistency with theshorelm "%r < z
1) " ' t'er�ledresto ion roJec 'me" '�'
a rim' f L9f�t���erxS�dTestOr���lsYl "" .� 1tsh i
�f�h _ �" �cl o%.sistso�ne or�m��ea�thefollowirig
dsturl � dtsc�atged ,�nd����whch�'no ^exis�n�g�'ege t� a '"d
z
mnin�l��ecessa�y to�facxltate additional ;plantings,
Q %1A project$ or the restoxation o% n e od'° 9 z b
bertha e �lo�sthe ,princ�ples�ofib�Qengmeer�ng; �ncl `" "g tai `° Q
�fabil�zatron��atthe� €toe °9�the�bank;�and vv�thprun �ha� t
Vie'" eta`°t �t`o`�controlerosive`farces offlowi`n �wat�r<d' _ ' "
> 2�'' Watesle�l�restoration�plan "rn�eanska�3lt�, �1 6�0 �so>��db
the depa �hnent �of fishhand�wiYdlife the deparhnentouecn k F_hd s ,fie%, .
trahspon, afe�ierallyecogmzed4Indiantnbe��ctng�
authox���"�ity,� a�county,�ra conservation d�sfrictth�t ���e�.��' sam��tii
inplem : n tton measures orachons�or the nreservatio est�tatia ����eaii��, t
(p) A public or pn ate pro�eet, the prunary p upose e 'dMI t ro,Ve
fish >o��vu�ldlife habitat orsfish passage; when all of the follo�g §apply
(1} Tie project hasbeen approved )n ;wnti"ng °bthedpuk „entaffish and
..
wildlife ass =necessary for the,unprovement of the habitatsor�passag�iil��prop�ratel
de�igne� and s�edto�acconphsh£thentended pu"rpoSe
2 e ro ectTeceivedh draultc ro ect a rovalb e e eu#uf
fishandldltfe pursuant to chapte%7S 20rRCW, and
(3) Theadmimstraror has�detertnined�that th ro ee ist�R,. �'� `�
p�ogram� ")�he a'dmini'strator shall =makesueh deternunatio �a� #une
poide'it by °letter to;the pr -off ect proporietit
3/01/97 Draft
.32Vtatement of Exemption In accordance with WAC 173 44 -0400 and section
23.50.31 of this program, all exemptions shall be construed narrowly. Whenever the
exempt activity also requires a U.S. Corp of Engineers Section 10 permit Under the
Rivers and Harbors Act of 1899 or a Section 404 permit under the Federal Water
Pollution Control Act of 1972, a statement of exemption shall be sent to the applicant and
Ecology pursuant to WAC 17344 -H41*24` -05;0.
(a) The Administrator is hereby authorized to grant or deny requests for statements of
exemption from the shoreline substantial development permit requirement for activities
within shorelines which are specifically listed in Section 23.50.31. Such statement shall
be applied for on forms provided by the Administrator. N
qg-
T+e statement or &I denial `° shall be in writing and shall identify the
reason(s) for the emei��- denial. The Administrator's actions b-- �r'N'O *c �
S ale neri A� xe in ry enial sus are subject to appeal pursuant to Section
20.60.200.
(b) no changes to this paragraph
(c) no changes to this paragraph
23.50.33 The following requirements shall apply to all exemptions renumber section 23.50.33 to
23.50.35 and change to read as follows read as follows no other change to this section.
.3�� Exempfions�s�hl�xpiras�selffl�thn�sec #�or����360a�1;60.
RUN I
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8 3/01/97 Draft
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_ : _ : -
Discussion: update, consistency. There have been a number of changes to.the
Washington State Administrative Code (WAC) with regard to shoreline substantial
development permit exemptions since the last time the County's shoreline program was
updated. The changes to section 23.50.030 set forth above bring the language of the
County's program into line with the current language of WAC 173.27.040 and 050. which
deal with exemptions and the issuance of statements of exemptions.
23.50.52 Relationship to other state and federal laws
.52 At ,f time of application or initial inquiry the Administrator shall inform the
applicant regffding §
f such other statutes and regulations telatii g ash el s t
as-may be applicable toheaplatecta�the�tnat'tt Yuu"sta
ofany�suGhstaite z
Administrator's However, the final responsibility fl
de #erminingapphc omp ymg with sueh e4ter statutes or
regulations w, 4, h�e�same rests with the applicant or responsible person carrying out the
_,�
use or development in question.
Discussion: clarification; Staff believes that the way this section is currently worded is
not sufficiently clear to absolve the administrator from responsibility in the event the
applicant is subject to additional regulations at the state or federal level that the
administrator was unaware of. The language proposed above makes it clear that the
administrator shall share his knowledge with the applicant about other regulations if he
has such knowledge but that the applicant is ultimately responsible for determining
applicable regulations and complying with same. Staff believes that this revised language
is more consistent with the intent of this section that the administrator be helpful rather
than responsible for providing information about applicable statutes and regulations not
part of the county shoreline program.
23.50.90 Nonconforming development. change subsections 23.50.91 through 100 to read as
follows adding new sections and renumbering:
9 3/01/97 Draft
.91 Non- conforming developments, may continue to be wilized itse°
for the same purpose(s) as existed at the time of approval of the Shoreline Program
(August 27, 1976), or the approval of a specific amendment which made the use or
development non - conforming. , any
�a� k ��ollo�n: tcho
'�- a?Y.ii a. t:&av3Fa�YX?'d_...
mod: _
.92 This program shall not restrict the tnaWVNR , xepair Leffiy —, r �— odelmg of
any nonconforming use existing on the effective date of adoption or
amendment of this Program as described in .91 above. Such repair shall be allowed only
to the extent that non - conformance with the standards and regulations to this program is
not increased.
93 This Program shall not restrict the reconstruction of any pre- existing single family
or agricultural structure existing on the effective date of this
Program, which is damaged or destroyed by fire, accident or the elements;_
-
PROVIDED that, any non - conformance with the standards and regulations of this
Program shall not be increased by such reconstruction.
.94 Reconstruction of any development other than those Yden#W Maned in 93 or
M above shall be done in accordance with the requirements of this Program;
10 3/01/97 Draft
applV to pr xrstin9"'AM formittes
.91 If use of a non - conforming development ceases for more than one year, but not more
than two years, resumption of such use may be allowed as a conditional use; PROVIDED
that, no such restriction shall apply to single family residences or agricultural structures
ebattalffiatiod SkQ
whieh are not substw-A
.96§-'Expansions of a non - conforming use may be authorized as a conditional use,
provided all of the following criteria are met:
(a) the goals and policies of this Program are met including promotion of public access.
(b) the use or activity is enlarged, intensified, increased or altered only to the minimum
amount necessary to achieve the intended functional purpose; and
(c) uses which are specifically prohibited or which would thwart the intent of the Act or
this Program shall not be authorized.
If approved, appropriate conditions shall be attached to the permit to ensure conformance
with the Program policies and regulations as much as is reasonably practical.
4 x;9 A nonconforming development which is moved any distance must be brought
into conformance with this Program and the Act.
:94 "100 If a nonconforming development p' idetXec143503 's
�.....,
damaged to an extent not exceeding seventy -five percent replacement cost of the original
e ce�eia m�ntit may be reconstructed to those configurations existin
..P Y g g
immediately prior to the time the structure was damaged dedthat�h��ppiYttols
NIXON 0 : ;.
11 3/01/97 Draft
(a),No reasonable= .alfernatve zcvnform�n=g '"° ���a:��l°°�l�bec�u '�o"the
c'Wo 3 urationo etieturd
91g ;LS:
e r e
Discussion: update; WAC 173 -27 -100 contains a number of new provisions regarding
non - conforming uses. The new language of 23.50.91 proposed above is out of the WAC
with the exception that the provision for the expansion of single family residential
structures by conditional use has been added to allow the limited expansion of
nonconforming single family residential structures into setback areas by conditional use
provided the addition does not extend waterward or further into the side yard setback than
the existing structure. Expansions of nonconforming residential uses are already covered
in 23.50.96. The use of the term nonconforming structures is new.Staff is proposing that
the definition of nonconforming development be changed to that set forth in WAC 173-
27.100(1) to include the term structure. The new definition would read: "Nonconforming
use, development or structure" means a shoreline use development or structure which is
lawfully constructed or established prior to the effective date of the act or the applicable
master program, or amendments thereto, but which does not conform to present
regulations or standards of the program.
23.50.97. Old section 23.50.97 has been deleted because it is now covered by the new
language in 23.50.92.
23.50.99 The current language of the County's program allows only one year from the
time the damage occurred to complete reconstruction. This is an unreasonably short
period of time since , depending on the project, it could take three to six months just to
obtain the necessary permits. The state provides a more reasonable time frame in WAC
173 -27- 080(8). The language of WAC 173 -27 -080 has therefore been incorporated in the
above.
20.50.100. The language of Whatcom County's shoreline program with regard to the
change in use of a structure from one nonconforming use to another is more restrictive
than what is permitted by the state under WAC 173 -27- 080(6). Staff believes that the
12 3/01/97 Draft
greater flexibility of the state's version is more desirable and that the criteria set forth in
the DOE's version is sufficient to prevent abuse and to safeguard the public welfare.
23.60.21 and .22 Authority. change 23.60.21 and 23.60.22 to read as follows:
.21 The Hearing Examiner is hereby authorized to grant or deny shoreline permit
applications requiring public hearings provided the applications are not accompanied by a
pl rine a u�d�v° l p�rnent oz major development permit application T _,�
.22 Final decisions on shMmepermit when
accompanied by a ped�del pent o zoning major development permit shall
be made by the Cain Council.
Discussion: consistency, clarification The revision proposed above is for the purpose of
making the language consistent with the zoning ordinance procedure for approving
planned unit developments. This section of the shoreline program has been inconsistent
since chapter 20.85 was originally adopted a number of years ago and needs to be
corrected.
23.60.33 Application and Public Hearing Requirement. change 23.60.33 to read as follows:
.33 Shoreline substantial development permit applications which are determined by the
administrator NOT to need a public hearing shall be approved or denied by the
Administrator. Natiee of reeeipt of ttppheafion shall be the responsibility of the Hearing
Examiner and shall be done pursumit to Seetion 23.60.69 (Natiee of Pkeeeipt e
Discussion: consistency; The language regarding notice application was deleted above
and put in the following section which deals with notice of application.
23.60.60 Notice of Receipt of Application. change the language of 23.60.60 to read as follows
6 Upon receipt of a completed shoreline permit application by the Hearing Ex ,-
tIf -- unty
shall�isst�e��1 tice�o�pplt��tion�f�£�,9posed L�and�L�se�AcZior�h��m�agnneset
ai�Gl' ta�o����the; a�plcantlof�s�not�% �r�spons�brltfyund�rthafirsec�t�t
13 3/01/97 Draft
-- pip
.62§ An Affidavit of Publication of the receipt of application, shall be attached to and
accompany the application through the review of decision process of the Department of
Ecology.
Discussion: Update The notice of application requirement of the County's new Permit
Review Procedure, Chapter 2.33 WCC, is consistent with the new notice of application
requirements of WAC 173.27.110, and both of these are in turn consistent with the
requirements of state growth management statutes.
23.60.70 NOTICE OF PUBLIC HEARING Change the title of this section to read:
23.60.070 NOTICE OF OPEN RECORD HEARING and amend 23.60.70 to read as
follows:
Z�1 For shoreline�permrts�requu�ng an open ;record�he�rtng,:the�Hearmg E�amt%r shall:
p�ovide�otice�"bf�an �p"�n iilt e�o�d�H�'anng th�na, ir'se��°" _ �irifion
14 3/01/97 Draft
-
.62§ An Affidavit of Publication of the receipt of application, shall be attached to and
accompany the application through the review of decision process of the Department of
Ecology.
Discussion: Update The notice of application requirement of the County's new Permit
Review Procedure, Chapter 2.33 WCC, is consistent with the new notice of application
requirements of WAC 173.27.110, and both of these are in turn consistent with the
requirements of state growth management statutes.
23.60.70 NOTICE OF PUBLIC HEARING Change the title of this section to read:
23.60.070 NOTICE OF OPEN RECORD HEARING and amend 23.60.70 to read as
follows:
Z�1 For shoreline�permrts�requu�ng an open ;record�he�rtng,:the�Hearmg E�amt%r shall:
p�ovide�otice�"bf�an �p"�n iilt e�o�d�H�'anng th�na, ir'se��°" _ �irifion
14 3/01/97 Draft
7� An affidavit of publication of the notice of ode R eke hearing �; „r�mred by
W shall be attached to and accompany the application through the decision
review process of the Department of Ecology.
Discussion: Update; Section 23.60.70 has been revised to reflect the open record hearing
requirements of the growth management act as which have been adopted by Chapter 2.33
of the Whatcom County Code.
23.60.100 DECISIONS; amend section 23.60.102 and .103 to read as follows:
.102 Decisions and recornmendedxdecisions of the Hearing Examiner shall be rendered
within 10 working days of the date the public hearing recoil c1e unless an extension
of time is agreed to by the applicant.
15 3/01/97 Draft
ROOM-
7� An affidavit of publication of the notice of ode R eke hearing �; „r�mred by
W shall be attached to and accompany the application through the decision
review process of the Department of Ecology.
Discussion: Update; Section 23.60.70 has been revised to reflect the open record hearing
requirements of the growth management act as which have been adopted by Chapter 2.33
of the Whatcom County Code.
23.60.100 DECISIONS; amend section 23.60.102 and .103 to read as follows:
.102 Decisions and recornmendedxdecisions of the Hearing Examiner shall be rendered
within 10 working days of the date the public hearing recoil c1e unless an extension
of time is agreed to by the applicant.
15 3/01/97 Draft
(a)pprov d pq�etherecofnrnendalao ti
F�xammer,�w�tthnstruct °iox�s�° or -�eft�
Examiner-with such modifications as the council deems appropriate.
Discussion: consistency; The language of 23.60.102 was changed to make it clear that
both a decision and recommended decision need to be issued within 10 working days of
the close of the hearing record. The date of the close of the hearing record rather than the
date of the public hearing has been used in recognition of the fact that the Hearing
Examiner sometimes leaves the record open for a time after the close of the public
hearing to allow more written evidence to be entered into the record. The close of the
record is the more appropriate date to start to the 10 day clock.
23.60.103 - The only land use permits that go to the County Council for final approval
are Major Development Permits and Planned Unit Developments. The only shoreline
permits that the Council has final approval authority over are those that accompany either
of these two land use permits. Consequently, council approval deadlines and approval
alternatives need to be consistent among these permits. The language of 23.60.103
proposed above is the same as the language of 20.85.340 regarding council approval of
Planned Unit Developments. The language of 20.88.225 regarding council approval of
Major Development Permits differs from 20.85.340 and the language proposed here
and will need to be changed. The language of 20.85.340 for Planned Unit Developments
was selected over the language of 20.88.225 because it is the most current language and
provides for the most expeditious review.
23.60.100 DECISIONS; add language from 23.60.160 as new section 23.60.104 to read as follows
and delete old section 23.60.160 to free up that section number.
Q54 If a shoreline permit is denied, no reapplication for the same or essentially similar
development may be made until one year from the date of denial.
Discussion: convenience. This change is for no other purpose than to free up a block of
section numbers. The new language regarding the expiration of permits and revisions to
permits contained in the recently adopted Washington State Administrative Code (WAC)
would not fit within the current section numbering of the county's shoreline program. The
16 3/01/97 Draft
change proposed above frees up the entire 23.60.160 block of section numbers and
provides the necessary space for the new language at the appropriate location in the code.
23.60.140 RESCISSION, MODIFICATION, AND REVISIONS.: create two new sections out of
this section, 23.60.140 and 23.60.1 SO change. the title of the sections and amend the
language to read as follows:
PRO
143` "Withmthe sco�e�and�ntent�flf�the on�mal�perm�t�m `E��a11��oithe��c�ll�
(a)No a�ddti %nal�ove�cu'�tei�onst�ctiori ts�v�l�Yed�e�oe�tt�a�p�id �c �fl at�1�g
co�stru,�cTO�a�be��n leased >b ���, �ehhundred�car °£ee��ten°�perc�n��'��a�
approecl�cer the�origalper
(e)rThe use authonzeclpursuant to the onguial'permitrs nofschanged, anclY3
r
Noad�erse`envuonmerital uri : a�tuvill�be caused�b th� fo ec�ision`
which would notrequire�awperriu# �orthe development or ch�ge(i�o'��dinrde�s
program�or�the�shoreltne�man�agemeni�act�If�the�pro `�o�ed��hangei b�ta�1�
17 3/01 /97 Draft
deYe �opm�e�tas �fiii�c;�b: ��am °tie �la ire jp� �: `°,��']wren `�e s�vi�sion��
th�para'gra�h shal�°�� � ��ndth�e t�,"trerTe°in���f��"o���e
s�l?stantial deyelopx�ien�b�R.on theti�ne�lunifs�o�r5co�ie�of�thi r`�oi7gm°°�
vnceasissuectl?e�ineha '_°'
27'�10(8)x
Discussion: update, consistency; The shoreline WAC's contain extensive language
regarding revisions to shoreline permits that is not currently in the county shoreline
program. The WAC language provides a more comprehensive guideline for evaluating
proposed shoreline permit revisions and also provides more flexibility than the language
in the county's program. The revision is being proposed to make the county program
more consistent with the WAC and to provide additional guidance to staff in evaluating
shoreline permit revisions. Section 23.60.150 current covers both revisions and
rescissions. The change proposed above would split of the part covering rescission and
modification into a new section 23.60.150 which was previously the section on
expiration. The section on Expiration is now proposed as section 23.60.160.
23.60.15 RESCISSION AND MODIFICATION
;;151 Any shoreline permit granted pursuant to this Program may be rescinded or
18 3/01/97 Draft
modified upon a finding by the Hearing Examiner that the permittee or his/her successors
in interest have not complied with conditions attached thereto.
44-2-.'l The Administrator shall initiate rescission or modification proceedings by
serving written notice of noncompliance on the permittee or his/her successors.
143 , A public hearing shall be held by the Hearing Examiner no sooner than 15 days
following such service of notice. Upon considering written and oral testimony taken at
the hearing, the Hearing Examiner shall make a decision in accordance with the
procedures for shoreline permits.
FI M
Discussion: This section was created by splitting section 23.60.140 into two different
sections. The items from 23.60.140 moved to this section have been renumbered. Section
23.60.144 is proposed for deletion since it is now covered much more extensively by the
proposed language of section 23.60.140.
23.60.160 REAPPLICATION delete this section to free up the section number to use for the
section on Expiration and renumber 23.60.150 to 23.60.160. Move the deleted language
to 23.60. 100 adding it as new section 23.60.104.
23.60.4-59fi160; EXPIRATION
exe�
(,#} Constructionhalle commenced or`� erei codtironrt v e�
;
(b)�'he�effective�dater�of�a shoreline pertnir or Qexem�t�ron,�n �b�e�theatec��fl�st�actior
requ�redon ;the shorel�ne�pertmtjore�Cem�tit�h�an '�all�gfh`e N _ o � g'�nye�t�e°ts�'and
19 3/01/97 Draft
regrll# . .
theeffecti��a horehneimti tlp if a projeet or phased projeet for
vAtieh a shoreline permit has been gremted htts beee.". within five years aRer
... . ■
uride"re�v,� ;env � �.Goo`c� cause based`on therequ�ern�'���1ircitmstnces' �i✓�ath�pfpa ect"
shall mean.�that�the imeluYUts�established fdr�h°�`pro�`�ta� e°�`s�iiably�re�af�tl,to�"the
resources:'
1;63 When permit approvalis based on3condrtions; such condrtio%sshall;bestisf ed pngr
to occupancy or use =of a structure or pnorto tle,commeicement of a nonsfru�ctural
activrtyprovicled that dfferen` �tune��lirruts�oreo` m�l'�n�e`ma��be�specified�in�h��
20 3/01/97 Draft
c� 7litioa£Mroualbasappropnate%
164evio .° ibermits ;adexerptions£under`236U 140-ma�bfi�onzeafterhe
Discussion: update, consistency; The language proposed above is from the recently
adopted WAC for shoreline permits, WAC 173 -23. The new language is more flexible
and allows the establishment of expiration dates based in the character of the proposal. In
addition, the new language provides a more realistic method for establishing the effective
date of the shoreline permit. Under the old method, using the approval date of the
shoreline permit as the effective date included the possibility that the permit could expire
before all other necessary permits were obtained especially if substantial federal and state
permitting was required.
23.60.202 Appeal Application and Time Limit. Change 23.60.202 to read as follows:
The application for appeal from the Shoreline Administrator's decision may be obtained
at the PAIL, n�mngandDealopwrnentS�rvies iDepartmerit offiee of Buildings and G
Administrat Such an appeal shall be filed within ten (10WNM1 OWN h
i�ci ubtanfialDevel�ment Permitand within twenty (20) calendar days of
50§M the actionfthe' *Administrator being appealed.
Discussion: consistency: The appeal period of ten days for the issuance of an appeal of an
administratively issued shoreline substantial development permit is being proposed to be
consistent with the appeal period for the issuance of a Hearing Examiner approved
shoreline substantial development permit. Staff believes that it is reasonable to apply the
same appeal time line standards to a substantial development permit regardless of who
issues it.
23.70.20 and 21 Planning Department. change 23.70.20 and .21 to read as follows:
21 3/01/97 Draft
23.70.20 Departm� Planningd� °elopme�itSe%cesepaeir�
21. The Whatcom County Planning andDSeVelopmel�tServc Department is hereby
vested with:
Discussion: correct departmental reference: The planning department is now the
Department of Planning and Development Services. Change above corrects text to reflect
new name.
23.70.41(a) Hearing Examiner. change 23.70.41(a) to read as follows:
(a) Grant or deny shoreline permits not accompanied by a O1'aed�mt dewlapment�or
major development permit.
Discussion: correction: The Hearing Examiner makes recommendations on shoreline
permits which accompany planned unit developments.
23.70.41(e) Hearing Examiner. change 23.70.41(e) to read as follows:
(e) Pursuant to Chapter��t 20.88 W.C.C., hold public hearings and make
recommendations reeontmended deeisions to the County Council on shoreline permits
accompanied by an application for a plarn�edhunrt�dciylapm�entor major development
permit.
Discussion: correction; Additional revisions to clarify Hearing Examiners role in making
recommendations on shoreline permits that accompany Planned Unit Developments.
20.85 is the Planned Unit Development chapter of Title 20.
23.70.51(a) County Council. change 23.79.51(a) to read as follows:
(a) Pursuant to Chapters L018�5'14N�iid 20.88 W.C.C., make final decisions with regard to
shoreline permit, shoreline variance or shoreline conditional use applications which
require a planned ixtut devel xiientan major development permit.
Discussion: corrections: Revision made for the purpose of correcting language with
regard to role of council in approving shoreline permits accompanying PUD's.
23.70.61 Planning Commission. correct scriveners error.
22 3/01/97 Draft
.61 The Whatcom County Planning Commissioner, hereinafter called the
Commission ... (existing language)
Discussion: Correct obvious scriveners error.
23.80.14 Amendments. Change 23.80.14 to read as follows:
.14 Upon adoption by the Council of a detailed community or subarea plap as part of the
comprehensive plan the Planning e Department shall prepare
amendments, as appropriate, for the purpose of incorporating the goals, objectives, and
standards of the community subarea plan into this program. The commission shall
schedule a public hearing upon receipt of such proposals, and shall give due consideration
to the community objectives so expressed.
Discussion: correction; Change reference to reflect new name of Planning Department,
23.110 DEFINITIONS; amend the following definitions as shown:
23.110.N.3 Non - conforming tl PNWAevelopment or ff ac eans as"
use
development pruCtuevhich1�establhe o
use -a-the effective date of tlu ��o amm� ug �I Qa nend eats veto Abu
which of adoption or amendtneM m appropriate, of this Program, _.,-:e is _ith -
prat ' by-et-does not conform to r e regulations atd or standards of the program.
Discussion: update, consistency; Change is proposed because there are substantive
differences between the wording in the county program and the wording in WAC 173 -27.
23.1108 I Fair Market Value of a development is the op�e���narkei�bid��a� price for
1!\ i/l 1. 1!\!\ �IS.![.l ��Il 1�J f.0 �\ �/I I�In1R�- Ilt �r1.C\ �1�1�!!f_#•! �! !!C!f_ #•1�1!!!! /!ll�t�� /��!!!CC ����! \7 [.lI�C�C�I�� \-1�
23 3/01/97 Draft
Discussion: update, consistency; Change is proposed because there are substantive
differences between the wording in the county program and the wording in WAC 173 -27.
23.110.S.7 Shorelands means the periodiettily submerged land att the share of a navigable
lake or navigable river ttpstream of tidal flow between the 911WNI and line a
na-Vigability C�fhol�risxteltglandaiclfof�ZQQfetrnllsasure
Discussion: conformity w / state statute The change to the definition of shoreline is being
proposed so that the definition in our program is consistent with the definition in the State
Shoreline Management Act as amended by HB 1724 adopted in 1995
23.110.S.8 Shoreline Jurisdiction means Shot latnds
Discussion: consistency, The definition of Shoreline Jurisdiction in the county's shoreline
program is the same as what the state now defines as shorelands. Rather than repeat the
definition, staff felt it would be more efficient to simply reference the definition of
shorelands. The definition of shoreline jurisdiction was not deleted be cause the term
appears in a number of places throughout the county's program.
23.110.W.8 Wetlands means'areas that ;are mundatedorsaedb'urfaccte�gx
gro�andaterkaafrequnc andduration sufficient to, support hat under normal
cYrctitstaiicessuporl, a prevalence of vegetation typieallyadapYe £dfor�fe�nsaturaf+
ram:." ••IM...o, n.,S$k'.i . r
those artificial wetlands mtt
tn ated for n ... nd
k�
a en t es��Wetlandsfmay u elude those artificial wetlands intentionally crea ed from
nonWetlnd areas to mitigate the conversion owetlands
vegetation is daminated by water loving
24 3/01/97 Draft
POP@!
- -- - -
10.0,
:.-
- -
NOW:
Discussion: consistency, The definition of Shoreline Jurisdiction in the county's shoreline
program is the same as what the state now defines as shorelands. Rather than repeat the
definition, staff felt it would be more efficient to simply reference the definition of
shorelands. The definition of shoreline jurisdiction was not deleted be cause the term
appears in a number of places throughout the county's program.
23.110.W.8 Wetlands means'areas that ;are mundatedorsaedb'urfaccte�gx
gro�andaterkaafrequnc andduration sufficient to, support hat under normal
cYrctitstaiicessuporl, a prevalence of vegetation typieallyadapYe £dfor�fe�nsaturaf+
ram:." ••IM...o, n.,S$k'.i . r
those artificial wetlands mtt
tn ated for n ... nd
k�
a en t es��Wetlandsfmay u elude those artificial wetlands intentionally crea ed from
nonWetlnd areas to mitigate the conversion owetlands
vegetation is daminated by water loving
24 3/01/97 Draft
Discussion: consistency w/ State Statue The change to the definition of wetland is being
proposed so that the definition in our program is consistent with the definition in the State
Shoreline Management Act as amended by HB 1724 adopted in 1995.
25 3/01/97 Draft
INOW
_ _ . i
_ _
Discussion: consistency w/ State Statue The change to the definition of wetland is being
proposed so that the definition in our program is consistent with the definition in the State
Shoreline Management Act as amended by HB 1724 adopted in 1995.
25 3/01/97 Draft
ATTACHMENT B
Additional Proposed Code Scrub Amendments
Title 23 WCC
We are submitting for your consideration, three changes to the items included under Agenda
Bill #97 -225. The first two changes are items we would like to see added to the list of
proposed revisions. The third item includes changes we would like to see made to the
wording of one of the proposed revisions already on the list in your packet. Each of these
three requested revisions is described separately below
Item #1
Staff is requesting that the following change be included in the list of proposed revisions to
the County Shoreline Program. The proposed change pertains to section 23.60.120 &peal
and Reconsideration. We are requesting that section 23.60.122 and 123 be amended to read
as follows:
.122 Where decisions of the Hearing Examiner are final:
Any person aggrieved by the granting, denying, or rescinding of a shoreline permit
by the Hearing Examiner may seek review from the Council by filing a written
request on forms supplied by the office of the Hearing Examiner within 10 days of
the date of the final action. Alternatively, appeals may be filed with the State
Shoreline Hearings Board pursuant to RCW 90.5 8.180 within thirty
days of the date of filing as defined in RCW 90.58.140(6).
.123 Where decisions of the Hearing Examiner are recommended to the Council:
t.
Appeals of Council decisions may also -be made. to the State Shoreline Hearing Board
pursuant to RCW 90.58.180 within thirty (30) "`. e ' days of the date of
filing as defined in RCW 90.58.140(6); the decision of the Shoreline Hearing Board
may be appealed pursuant to RCW 34.041. or permits deeided by the Gouneil may
be appealed direetly to Superior Gourt purstiant to R-GW 90.58.180(i).
Discussion: This addition is essentially a housekeeping item. RCW 90.58.180 now provides
that an appeal to the Shoreline Hearings Board must be filed within twenty -one days of the
final action. This conflict between the wording in our program and the provisions of the
current state statute was inadvertently overlooked when the proposed changes covered under
this agenda bill were developed. In addition, the reference to RCW 34.04 in our program
is no longer correct. That section was renumbered by the code revisor to RCW 34.05. RCW
34.05 is the section now cited in the current version of RCW 90.58.180. Lastly, there is no
longer a direct appeal to Superior Court in RCW 90.58.180(1). All appeals go to the
Shoreline Hearings Board first. An aggrieved party may then appeal a Shoreline Hearings
Board decision to Superior Court.
Item #2
Staff is requesting that the following change be included in the list of proposed revisions to
the County Shoreline Program. The proposed change pertains to chapter 23.80 Legal
Provisions. We are requesting that a new section 23.80.13 be added to read as follows and
that existing sections 23.80.13 and 23.80.14 be renumbered to 23.80.14 and 23.80.15
respectively.
U
Discussion: The proposed addition is also a housekeeping item. The language of the new
section proposed above contains substantially the same language found in section 109 of
HB 1724. The language was included in HB 1724 by the legislature to establish a date on
which to begin the 60 day clock on the filing of petitions to the Growth Management
Hearings Board on shoreline master program adoptions and amendments thereto. The
requirement for the county to publish notice as set forth above is now state law and is in
effect whether we include the above language in the shoreline program or not. Staff believes
that including the above language in our shoreline master program will serve as a reminder
to the County to publish the notice of amendment and will also serve to notify the public
that a notice. of final action by Department of Ecology to approve or disapprove an
amendment to the master program will be published.
Item #3
Staff .is requesting that the following language be substituted for the language proposed
under the heading "23.60.438 M EXPIRATION" which begins near the bottom of page 19
(page 263 of your packet) of Attachment A of the Agenda Bill
In the text below, all of the proposed changes to the language of the Agenda Bill version are
indicated by a double underline. The type of change is indicated as follows:
(1) Double underlined strikeouts shows language to be deleted from the Agenda Bill
version.
(2) Double underlined shading shows language to be added to the Agenda Bill version.
(3) Double underlined normal text without strikeout or shading shows language out of the
county's current shoreline program proposed for deletion in the Agenda Bill version that we
are now proposing be placed back in
23.60.+541M, EXPIRATION
1..,..
i N s
&® f 3 p
� �e�o s ailt arm &,l �� �t ® ® �. ® e el ®= � � � r ` Y � ���I� Y�I � � �"
, W ` ° v MI � i% 9u- ftL ¢mac
0 0 Q AM ' $ 41 0
Discussion: Staff had cause to reexamine the proposed wording for this section and
discovered that several references were incorrect. In addition, upon closer examination, of
the language proposed for 23.60.161(a) and (c) included in the Agenda Bill -version, staff
concluded that the wording was too confusing. As a consequence we are proposing the
above changes to 23.60.161(a) and (c) for the purpose of improving the language without
altering the original meaning or intent. Lastly, as shown above, staff is proposing that the
order of Section 23.60.161 (b) and (c) be reversed to provide a more logical organization
by keeping the two sections dealing with time limits adjacent to each other rather than
separated by what is essentially the section defining the term "effective date."
4k.