Article VI Permit Review Criteria

Classification Criteria. Shoreline Conditional Uses are those uses within Shoreline jurisdiction that are identified in section 16D.10.05 (Shoreline Land Use table) as Conditional Uses, and that are usually seen as uses that either do not need a shoreline location, are considered not to be suitable for siting in shoreline locations, or have impacts that need closer scrutiny. Unclassified Conditional projects, uses and developments which may be proposed in the future, but were not considered during development of the SMP. It is understood, however, that there may be special circumstances or a special type or style of conditional use that would make shoreline siting of special cases acceptable to the goals, policies and intentions of the master program. The purpose of a conditional use permit is to provide a system which allows flexibility in the application of use regulations in a manner consistent with the policies of RCW 90.58.020 (Legislative findings). In authorizing a conditional use, special conditions may be attached to the permit by Yakima County or the Department of Ecology to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the act and the master program.

Process. All applications for a conditional use shall be processed as a Type II review in accordance with YCC Title 16B (Project Permit Administration).

Decision Criteria. The decision on a conditional use shall be based upon the criteria established in Section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria established below. The burden of proving that the project is consistent with the applicable criteria shall be upon the applicant, who must supply evidence or information demonstrating to the satisfaction of the administrative official that all of the following criteria will be met:

Failure to satisfy any one of the criteria below shall result in denial of the conditional use.

That the proposed use will be consistent with the policies of RCW 90.58.020 (Legislative findings).

That the proposed use will not interfere with the normal public use of public shorelines.

That the proposed use of the site and design of the project will be compatible with other permitted uses within the area.

(iv)

That the proposed use will cause no significant adverse effects to the shoreline environment designation in which it is located.

(v)

That the public interest suffers no substantial detrimental effect.

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

(Ord. 14-2007 § 1 (Exh. A) (part), 2007; Res. 54-2010 § 2 (Att. B § 19), 2010)

16D.03.22 Variance.

Classification Criteria. A variance may be used within shoreline jurisdiction to grant relief from specific bulk, dimensional or performance standards where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of the standards will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020 (Legislative findings). Shoreline variances from the use regulations of the master program are prohibited.

Process. Requests for a variance permit shall be processed as a Type II review in accordance with YCC Title 16B (Project Permit Administration). Each request for a Variance shall be considered separately and prior to any decision on an application for development authorization. Any decision to approve or conditionally approve the development authorization will include and specifically cite only those variances approved for inclusion with the project.

Decision Criteria. The decision on a Variance shall be based upon the criteria established in Section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria established below. Variance requests shall cite the specific standard or condition from which relief is requested and be accompanied by the evidence necessary to demonstrate the variance is in conformance with all of the criteria below. Failure to satisfy any one of the criteria shall result in denial of the variance.

Special Conditions. There is a hardship identified in (3)(b) below, that is specifically related to a unique natural or physical condition associated with the project site, such as irregular lot shape, size, or natural features, which is not the result of a deed restriction, a lack of knowledge of requirements involved when the property was acquired, or other actions resulting from the proponent's own actions;

Unnecessary Hardship. The strict application of a standard would deprive the proponent of a reasonable use of the land or rights commonly enjoyed by other properties in the same area. That greater profit would result if a variance were granted is not evidence of a hardship;

16D.03.25 Minor Revisions to Approved Uses or Developments.

General Compatibility. The project is generally compatible with other permitted or authorized uses in the immediate project area and with uses planned for the area under the comprehensive plan and/or the Shoreline Master Program and granting the variance will not cause adverse effects to abutting and adjacent properties or the critical area;

(d)

Special Privilege. The requested variance would not constitute a grant of special privilege not enjoyed by other abutting and adjacent properties and the variance is the minimum necessary to afford the requested relief;

(e)

Public Interest. The requested variance will not endanger the public safety or health and that the public interest will not be compromised;

(f)

Cumulative Impact. In the granting of any variance, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if other variances were to be granted in the area where similar circumstances exist, the total cumulative effect of the variances shall also remain consistent with the policies of this chapter and shall not produce substantial adverse impacts to the designated critical area;

(g)

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

(Ord. 14-2007 § 1 (Exh. A) (part), 2007)

Classification Criteria. Minor revisions to a project that has been approved under a permit are allowed in certain circumstances.

Changes that are not substantive are not required to obtain a revision and may be allowed as activities to implement the original permit. Examples of such include minor changes in facility orientation or location, minor changes in structural design that do not change the height or increase ground floor area, and minor accessory structures (such as equipment covers or small sheds near the main structure, etc.);

Substantive changes are those that materially alter the project in a manner that relates to its conformance with the permit requirements, or with the Shoreline Master Program.

Such changes may be approved as a minor revision, if the administrative official determines that the proposed revision and all previous revisions are within the scope and intent of the original permit, and meet the criteria listed below. Changes not able to meet the criteria must obtain a new permit;

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

(d)

Lot coverage and height may be increased a maximum of ten percent from the provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit; and provided further, that any revisions authorized under this subsection shall not exceed height, lot coverage, setback or any other requirements of these regulations;

(e)

Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is consistent with this title for the area in which the project is located;

(f)

The use authorized pursuant to the original permit is not changed;

(g)

No additional significant adverse environmental impact will be caused by the project revision.

Process. Minor revisions to existing permits shall be processed as a Type I review, as provided under YCC Title 16B (Project Permit Administration). Parties of record to the original permit shall be notified of the revision, though a comment period is not required. A revision for a project within shoreline jurisdiction shall follow state filing, appeal and approval standards as provided in WAC 173-27-100 (Revisions to Permits).

16D.03.26 Nonconforming Uses and Facilities.

Decision Criteria. Decisions on permit revisions shall be based on the general decision criteria found in section 16D.03.14 (Authorization Decisions – Basis for Action).

(Ord. 14-2007 § 1 (Exh. A) (part), 2007)

Nonconforming uses and facilities are classified as either conforming uses with nonconforming structures or areas, or as nonconforming uses, as described in subsection 1 below. Both types have different review processes and decision criteria, as provided below in subsections 2 and 3.

Classification Criteria. There may be situations that do not conform to the standards or regulations of this title. These situations are characterized as:

Nonconforming Uses. Uses of a structure or land that were lawfully established at the time of their initiation but are currently prohibited by this title are nonconforming uses, and may utilize structures or land areas that are also nonconforming. A nonconforming use that is discontinued for any reason for more than one year shall have a presumption of intent to abandon, shall not be re-established, and shall lose its nonconforming status, unless a variance is obtained to extend the length of time, based on documentation showing that an intent to abandon did not exist during the period of discontinuance. Such a variance request may be submitted after the deadline has passed. In the case of destruction or damage where reconstruction costs exceed 50% of the assessed value, the structure shall not be rebuilt.

Conforming uses with nonconforming structures or areas are structures or areas for conforming uses that were lawfully established at the time of their initiation, but currently do not conform to the bulk, dimensional or other development standards of this title. Structures or areas in locations approved under a permit shall not be considered nonconforming. Nonconforming outdoor areas that have not been used or maintained for 5 consecutive years shall lose their nonconforming status and may not be reestablished.

Any nonconforming structure, area, or use may be maintained with ordinary care according to the provisions in 16D.01.05 (Applicability), 16D.03.05 (Minor Activities Allowed without a Permit or Exemption) and 16D.03.06 (Exemptions – Procedural Requirements), and do not require additional review under these nonconforming provisions.

Process.

Alterations to conforming uses with nonconforming structures or areas shall be allowed under the following process requirements with the understanding that other permits or reviews may also be required under this title:

Those that do not increase the existing nonconformity and otherwise conform to all other provisions of this title are allowed without additional review under these nonconforming provisions;

Those that increase the nonconformity, including establishing additional square footage within a buffer, are allowed without additional review under these nonconforming provisions; however, a variance must be obtained for the increased nonconformity;

Reconstruction or repair of a structure damaged less than 75% of the assessed value shall be processed as provided in subsections (i) and (ii) above;

(iv)

A nonconforming structure which is moved any distance shall be processed as provided in subsections (i) and (ii) above;

(v)

Reconstruction or repair of structures destroyed or damaged 75% or more of the assessed value of the structure (not the whole property), including that resulting from neglect of maintenance or repair, shall be processed under these nonconforming provisions as a Type II review under YCC Title 16B (Project Permit Administration).

Alterations to Nonconforming Uses.

Those involving expansion or alteration within an existing structure, but do not include alterations to outdoor areas, or expansions of the building's height or square footage are allowed without additional review under these nonconforming provisions.

Alterations to nonconforming uses, including their nonconforming structures or areas that do not qualify under paragraph (i) above, shall be processed under these nonconforming provisions as a Type II review, as provided under YCC Title 16B (Project Permit Administration).

Within shoreline jurisdiction, and only within the urban and rural shoreline environments, a nonconforming use as listed in section 16D.10.05 (Shoreline Land Use Table) may convert to another nonconforming use; although, a nonconforming use shall not change to any use prohibited in section 16D.06.10 (Prohibited Uses). Conversion from one nonconforming use to another within the urban and rural shoreline environments shall be processed under these nonconforming provisions as a Type II review, as provided under YCC Title 16B.

Decision Criteria.

Decisions on projects that require review under the nonconforming provisions, as identified under subsection (2) above, shall be based on the general decision criteria found in section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria below.

Applications for conforming uses with nonconforming structures or areas that are subject to subsection 2(a)(v) above shall not be approved unless a finding is made that the project meets all of the following criteria:

Using the original location will not place the structure or people in danger of a hazard;

The previous structure and any structural shore modification used to protect the structure did not increase hazards or damage to other properties;

The previous structure and any shore modification used to protect the structure did not cause significant impacts to the functions and values of the critical area.

Decisions on nonconforming uses:

A nonconforming use may not be altered or expanded in any manner that would bring that use into greater nonconformity;

Within shoreline jurisdiction, nonconforming uses shall meet the decision criteria for conditional use permits in section 16D.03.21(3) (Shoreline Conditional Uses);

16D.03.27 General Critical Areas Protective Measures.

Within shoreline jurisdiction, and only within the urban and rural shoreline environments, conversion from one nonconforming use to another may be approved if the replacement use is more conforming with the intent of the applicable shoreline environment policies of Plan 2015 (Policies NS.7.05 through NS.7.22), and if the impacts to the shoreline environment from the existing use are reduced by changing the use.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007)

The standards below apply to all permits and reviews performed under this title.

Financial guarantees to ensure mitigation, maintenance, and monitoring.

When mitigation required pursuant to a development proposal is not completed prior to Yakima County's final permit approval, such as final plat approval or final building inspection, the administrative official may require the applicant to post a financial guarantee to ensure that the work will be completed. If the development proposal is subject to compensatory mitigation for wetlands and streams, the applicant must post a financial guarantee to ensure mitigation is fully functional. Where financial guarantees are required by other state or federal agencies for specific mitigation features, additional financial guarantees for those features are not required under this provision.

The financial guarantee shall be in the amount of one hundred and twenty-five percent (125%) of the estimated cost of the uncompleted actions and/or the estimated cost of restoring the functions and values of the critical area that are at risk.

The financial guarantee may be in the form of a surety bond, performance bond, assignment of savings account, an irrevocable letter of credit guaranteed by an acceptable financial institution, or other form acceptable to the administrative official, with terms and conditions acceptable to the Yakima County attorney.

(d)

The financial guarantee shall remain in effect until the administrative official determines, in writing, that the standards bonded for have been met. Financial guarantees for wetland or stream compensatory mitigation shall be held for a minimum of five (5) years after completion of the work to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

(e)

Public development proposals shall be relieved from having to comply with the bonding requirements of this Section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

(f)

Any failure to satisfy critical area requirements established by law or condition, including but not limited to the failure to provide a monitoring report within thirty (30) days after it is due or comply with other provisions of an approved mitigation plan, shall constitute a default, and the administrative official may demand payment of any financial guarantees or require other action authorized by the Yakima County code or any other law.

(g)

Any funds recovered pursuant to this Section shall be used to complete the required mitigation. Such funds shall not be deposited in the County General Fund, but rather provided with a separate account. The County will use such funds to arrange for completion of the project or mitigation, and follow-up corrective actions.

(h)

Depletion, failure, or collection of financial guarantees shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

Declarative Covenants.

When a development is authorized by a critical areas permit or review, a declarative covenant shall, unless determined not to be necessary by the administrative official, be filed with the Yakima County Auditor to inform future owners of the existence of a critical areas decision that runs with the land and contains limits relating to critical areas on the property. The declarative covenant shall read substantially as follows:

This declarative covenant is intended to reduce the incidence of unintentional violation of the Critical Areas Ordinance and/or Shoreline Master Program. Please be informed about your property and the laws that apply to it.

This declarative covenant is provided by Yakima County to the current and future owners of the property described as [enter property description] to inform them that, at the time of this notice, [enter Critical Areas or Shorelines present] existed within or adjacent to the property which are protected and regulated by the Yakima County Critical Areas Ordinance and/or Shoreline Master Program. Development has taken place on the property under permit or review number [enter permit file number], which includes requirements that run with the land. Current and future owners should obtain copies of the permit and also inform themselves about the critical areas, and/or shoreline jurisdiction that exists on the property.

This declarative covenant may be removed or modified if critical areas conditions change, or if the permit is no longer applicable. Contact the Yakima County Public Services for assistance in doing so.

The declarative covenant shall not be required for a development proposal by a public agency or public or private utility:

Within a recorded easement or right-of-way;

Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

On the site of a permanent public facility.

The applicant shall submit proof that the declarative covenant has been filed for public record before the administrative official approves any development proposal for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording.

Subdivision Standards. The following standards apply to all permits or reviews under the Unified Land Development Code (YCC Title 19) that contain critical areas:

All subdivisions that contain critical areas shall be eligible for density bonuses or other development incentives, as provided in the Unified Land Development Code (YCC Title 19);

Critical areas shall be actively protected through the following:

Roads and utilities for the subdivision shall avoid critical areas and their buffers, as much as possible;

When geologically hazardous areas (excluding erosion, oversteepened slopes of intermediate risk, stream undercutting, and earthquake hazards), FEMA floodway, channel migration zone (CMZ), streams, wetlands and/or vegetative buffers fall within the boundary of a subdivision.

(A)

Said critical areas shall be protected by placing them entirely within a separate critical area tract, or by including them entirely within one of the developable parcels. Other options, such as conservation easements and building envelopes may be deemed by the administrative official as meeting this provision when special circumstances obstruct the viability of this provision;

(B)

For those new lots that do contain said critical areas, usable building envelopes (5,000 square feet or more for residential uses) shall be provided on the plat that lie outside said critical areas.