A. Shoreline substantial development permit required.
1. A shoreline substantial development permit shall be required for all proposed use and development of shorelines unless the use or development is specifically identified as exempt or as an exception from a substantial development permit.
2. The Director may grant a substantial development permit only when the development proposed is consistent with the policies and procedures of RCW
90.58, the provisions of WAC
173-27, and this Program.
3. In the granting of all shoreline substantial development permits, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area. For example, if shoreline substantial development permits were granted for other developments in the area where similar circumstances exist, the sum of the permitted actions should also remain consistent with the policy of RCW
90.58.020 and should not produce significant adverse effects to the shoreline ecological functions and processes or other users.
B. Exemptions from a substantial development permit.
1. All uses within shoreline jurisdiction must be consistent with the regulations of this Master Program whether or not they require a Shoreline Substantial Development Permit. An exemption from the Substantial Development Permit requirements does not constitute an exemption from the policies and use regulations of the Shoreline Management Act, the provisions of this Master Program, and other applicable City, state, or federal permit requirements.
2. The Director is hereby authorized to grant or deny requests for a letter of exemption from the shoreline substantial development permit requirement for uses and developments within shorelines that are specifically listed in TSMP Section
19.02.030C. Letters of exemption may contain conditions and/or mitigating measures of approval to achieve consistency and compliance with the provisions of the Program and Act.
3. If any part of a proposed development is not eligible for exemption as defined in RCW
90.58.030(3)(e), WAC
173-27-040 and TSMP Section
19.02.030C, then a substantial development permit is required for the entire proposed development project.
4. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemptions from the substantial development permit process.
5. Exemptions shall not be issued for a series of inter-dependent activities that in sum would require a permit (i.e. a project cannot be submitted in a piece-meal fashion to avoid the requirement for a substantial development permit).
6. The burden of proof that a development or use is exempt is on the applicant or proponent of the development action.
C. Exemptions listed. The following activities shall be considered exempt from the requirement to obtain a shoreline substantial development permit but shall obtain a statement of exemption, as provided for in Section
19.02.030D:
1. Any development of which the total cost or fair market value, whichever is higher, does not exceed seven thousand and forty-seven dollars ($7,047.00), 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. Relocation and reconfiguration of the structure or development may be performed within the existing property boundaries if the relocation or reconfiguration results in a measurable and sustainable ecological improvement;
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 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 state 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 Director 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 RCW
90.58, these regulations, or this Program, shall be obtained. All emergency construction shall be consistent with the policies of RCW
90.58 and this 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 or modification of navigational aids such as channel markers and anchor buoys;
6. 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 City and state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to RCW
90.58. “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 (250 cy) 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;
7. 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 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:
a. In salt waters, the fair market value of the dock does not exceed two thousand five hundred dollars ($2,500.00); For purposes of this section salt water shall include the tidally influenced marine and estuarine water areas of the state including Puget Sound and all bays and inlets associated with such water body; or
b. In fresh waters the fair market value of the dock does not exceed: (A) twenty thousand dollars ($20,000) for docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced; or (B) ten thousand dollars ($10,000.00) for all other docks constructed in fresh waters. However, if subsequent construction occurs within five years of completion of the prior construction, and the combined fair market value of the subsequent and prior construction exceeds the amount specified above, the subsequent construction shall be considered a substantial development for the purpose of this chapter.
8. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water from the irrigation of lands;
9. 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;
10. 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;
11. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if:
a. The activity does not interfere with the normal public use of the surface waters;
b. 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;
c. 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;
d. 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 pre-existing conditions; and
e. The activity is not subject to the permit requirements of RCW
90.58.550 (Oil & Natural Gas Exploration in Marine Waters);
12. 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 the department of ecology jointly with other state agencies under chapter
43.21C RCW;
13. Watershed restoration projects as defined in Chapter
19.10. The City shall review the projects for consistency with this Program in an expeditious manner and shall issue its decision along with any conditions within forty-five days of receiving all materials necessary to review the request for exemption from the applicant.
14. A public or private project that is designed to improve fish or wildlife habitat or fish passage, when all of the following apply:
a. The project has been approved in writing by the state department of fish and wildlife;
b. The project has received hydraulic project approval by the state department of fish and wildlife pursuant to RCW
77.55; and,
c. The City has determined that the project is substantially consistent with the shoreline master program. The City shall make such determination in a timely manner and provide it by letter to the project proponent.
15. The external or internal retrofitting of an existing structure with the exclusive purpose of compliance with the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. Sec.
12101 et seq.) or to otherwise provide physical access to the structure by individuals with disabilities.
D. Letter of exemption.
1. Exempt activities related to any of the following shall not be conducted until a letter of exemption has been obtained from the Director or designated signatory: dredging, flood control works, in-water structures, archaeological or historic site alteration, clearing and ground disturbing activities such as filling and excavation, docks, shore stabilization, or activities determined to be located within a critical area or its associated buffer.
2. Other activities specifically listed in TSMP Section
19.02.030C that do not involve one of the activities specified in TSMP Section
19.02.030D.1 above, may be undertaken without a letter of exemption provided that notification of the action has been provided to the City. If the Director determines that the activity presents a substantial risk to cause detrimental impacts to shoreline functions, or that the activity requires a letter of exemption under TSMP Section
19.02.030D.1 above, a letter of exemption may be required.
3. A Letter of Exemption shall expire one year after the date of issuance unless otherwise specified in the Letter of Exemption. The same measures used to calculate time periods for Shoreline Permits as set forth in WAC
173-27-090(3) shall be used for Letters of Exemption.
4. No written statement of exemption is required for emergency development pursuant to WAC
173-27-040(2)(d).
5. A notice of decision for shoreline letters of exemption shall be provided to the applicant/proponent and any party of record. Such notices shall also be filed with the Department of Ecology, pursuant to the requirements of WAC
173-27-050 when the project is subject to one or more of the following Federal Permitting requirements:
a. A U.S. Army Corps of Engineers Section 10 permit under the Rivers and Harbors Act of 1899; or
b. A Section 404 permit under the Federal Water Pollution Control Act of 1972.
6. All applications for a letter of exemption shall provide at a minimum, the Joint Aquatic Resource Permit Application (JARPA). Information shall be provided that is sufficient for Director or designated signatory to determine if the proposal will comply with the requirements of this Program.
7. A denial of an exemption shall be in writing and shall identify the reason(s) for the denial. The Director’s decision on a statement of exemption is not subject to administrative appeal.
E. Exceptions.
1. The following activities and uses shall be considered exceptions to shoreline permitting and local review:
a. Requirements to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other review to implement the Shoreline Management Act do not apply to the following:
(1) Remedial actions. Pursuant to RCW
90.58.355, any person conducting a remedial action at a facility pursuant to a consent decree, order, or agreed order issued pursuant to RCW
70.105D, or to the Department of Ecology when it conducts a remedial action under RCW
70.105D.
(2) Boatyard improvements to meet National Pollution Discharge Elimination System (NPDES) permit requirements. Pursuant to RCW
90.58.355, any person installing site improvements for storm water treatment in an existing boatyard facility to meet requirements of an NPDES General Permit.
(3) WSDOT facility maintenance and safety improvements. Pursuant to RCW
90.58.356, WSDOT projects and activities meeting the conditions of RCW
90.58.356 are not required to obtain a substantial development permit, conditional use permit, variance, letter of exemption, or other local review. A written notification by WSDOT to the City is required prior to facility maintenance and safety improvement activities.
(4) Projects consistent with an environmental excellence program agreement pursuant to RCW
90.58.045.
(5) Projects authorized through the Energy Facility Site Evaluation Council (EFSEC) process, pursuant to RCW
80.50.
(6) Areas and uses in those areas under exclusive federal jurisdiction as established through federal or state statutes are not subject to the jurisdiction of RCW
90.58.
F. Shoreline variance.
1. The purpose of a variance is to grant relief to specific bulk or dimensional requirements set forth in this Program where there are extraordinary or unique circumstances relating to the property such that the strict implementation of this Program would impose unnecessary hardships on the applicant/proponent or thwart the policies set forth in RCW
90.58.020 and this program.
2. When a shoreline variance permit is requested, the Director shall be the final approval authority for the City. However, shoreline variance permits must have approval from the state. Department of Ecology shall be the final approval authority under the authority of WAC
173-27-200.
3. Shoreline variance permits should be granted in circumstances where denial of the permit would result in a thwarting of the policy enumerated in the SMA (RCW
90.58.020). In all instances extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect.
4. The Director is authorized to grant a variance from the standards of this Program only when all of the following criteria are met (WAC
173-27-170).
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 (a) of this subsection 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.
5. 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)(c), 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 TSMP Section 19.02.03F.4; and,
c. That the public rights of navigation and use of the shorelines will not be adversely affected.
6. In the granting of all shoreline variances, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area.
7. Before making a determination to grant a shoreline variance, the City shall consider issues related to the conservation of valuable natural resources, and the protection of views from nearby public roads, surrounding properties and public areas.
8. A variance from City development code requirements shall not be construed to mean a shoreline variance from shoreline master program use regulations and vice versa.
9. Shoreline variances may not be used to permit a use or development that is specifically prohibited in an environment designation.
10. The burden of proving that a proposed shoreline variance meets the conditions in this section and the criteria of this program shall be on the applicant. Absence of such proof shall be grounds for denial of the application.
G. Shoreline conditional use permit.
1. The purpose of the conditional use permit is to provide greater flexibility in varying the application of the use regulations of this Program in a manner which will be consistent with the policies of RCW
90.58, particularly where denial of the application would thwart the policies of the Shoreline Management Act.
2. When a conditional use is requested, the Director shall be the final approval authority for the City, unless otherwise specified. However, shoreline conditional uses must have approval from the state. Department of Ecology shall be the final approval authority under the authority of WAC
173-27-200.
3. Conditional use permits shall be authorized only when they are consistent with the following criteria:
a. The proposed use is consistent with the policies of RCW
90.58.020, WAC
173-27-160 and all provisions of this Program;
b. The use will not interfere with normal public use of public shorelines;
c. The proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located;
d. 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 this Program;
e. The public interest will suffer no substantial detrimental effect;
f. Consideration has been given to cumulative impact of additional requests for like actions in the area.
4. Conditional use permits for additions to a non-conforming single-family, overwater structure to expand the overall height of the structure shall be granted when they are consistent with the general Shoreline Conditional Use Permit criteria (TSMP Section
19.02.030G.3), as well as the following:
a. The expansion may increase the height up to no higher than 25 feet from the deck level.
b. The proposed development shall result in improvements in public safety, a reduction in environmental impacts, and increased conformity with flood hazard and building standards.
5. Chemical manufacturing, processing, and wholesale distribution.
a. Decision: Hearing Examiner
b. Criteria: In addition to the general criteria, the following apply:
(1) Consultation:
(a) Planning and Development Services staff will seek input from the Tacoma Fire Department, Tacoma-Pierce County Health Department, Tacoma Community and Economic Development Department, Puyallup Tribe of Indians, and any other subject matter expert necessary to determine the potential risks and impacts of the proposed facility, as well as appropriate mitigation measures.
(2) Public health and safety:
(a) The property on which the proposed facility is to be located must not expose large concentrations of people, particularly in residential and commercial areas, to unreasonable adverse impacts. In applying this criteria the City shall consider impacts to employee-dense businesses in the Tideflats as well as to detention/correctional facilities and people detained within those facilities.
(b) The lot is located, or the use can be appropriately mitigated, to avoid any adverse impacts on receipt or utilization of federal funding for affordable housing and community development in adjacent residential and mixed-use areas, with particular attention given to Trust Lands of the Puyallup Tribe of Indians. The City will consider the current methodology for Acceptable Separation Distances as published by the Department of Housing and Urban Development in determining appropriate separation distances and on-site mitigation measures for this purpose.
(c) The applicant shall submit a management plan. The City will determine the level of detail to be disclosed in the plan based on the probable impacts and/or the scale of the effects. Discussion of materials handling and storage, odor control, transportation, spill prevention, and other factors may be required.
(d) The City may impose conditions of approval limiting the nature of the materials produced and/or the scale of manufacturing operations in order to minimize the degree and severity of risks to public health and safety.
(3) Emergency services and risk management:
(a) The project shall not result in any increased risk of spill within the waters of Puget Sound and Commencement Bay. Updated spill response and emergency response plans shall be provided with the application, for review by all appropriate agencies;
(b) Plans and sufficient, realistic performance bonding for decommissioning and failure incidents are provided to ensure that the site will be rehabilitated after the use or activity is completed, terminated, or abandoned;
(c) Permit applicant to provide proof of insurance naming City of Tacoma as additional insured.
(d) Any adverse impacts to emergency services or increased demands for emergency services necessary to ensure the health and safety of employees and surrounding communities shall be mitigated concurrently with the proposed use or development.
(4) Shoreline resources and shorelines of statewide significance. For uses that propose to transport products and materials via marine vessel, the following criteria apply, with consideration given to the potential off-site impacts resulting from transport:
(a) There will be no likely long-term significant adverse impacts to shoreline resources or uses, or shorelines of statewide significance;
(b) All feasible steps are taken to avoid and minimize adverse social and economic impacts, including impacts on aquaculture, recreation, tourism, navigation, air quality, and recreational, commercial, and tribal fishing;
(c) All feasible steps are taken to avoid and minimize adverse impacts to fish and wildlife, including impacts on migration routes and habitat areas of species listed as endangered or threatened, environmentally critical and sensitive habitats such as breeding, spawning, nursery, foraging areas and wetlands. All impacts that cannot be avoided can be sufficiently mitigated or compensated so as to achieve no net loss of ecological functions over time.
6. Other uses which are not classified or set forth in this Program may be authorized as conditional uses provided the applicant can demonstrate consistency with the requirements of this Program. However, uses specifically prohibited by this master program shall not be authorized.
7. The burden of proving that a proposed shoreline conditional use meets the criteria of this program in WAC
173-27-160 shall be on the applicant. Absence of such proof shall be grounds for denial of the application.
8. The City is authorized to impose conditions and standards to enable a proposed shoreline conditional use to satisfy the conditional use criteria.
H. Ecology review.
1. Ecology shall be notified of any Substantial Development, Conditional Use or Variance Permit decisions made by the Director (or Hearing Examiner when required pursuant to TMC §
13.05.110), whether it is an approval or denial. The notification shall occur after all local administrative appeals related to the permit have concluded or the opportunity to initiate such appeals has lapsed. When a Substantial Development Permit and either Conditional Use or Variance Permit are required for a development, the submittal of the permits shall be made concurrently. All shoreline applications for a permit or permit revision shall be submitted to the Department of Ecology by return receipt requested mail upon a final decision by the City. The Director shall file the following with the Department of Ecology and Attorney General:
b. Findings and conclusions that establish the basis for the decision including but not limited to identification of shoreline environment designation, applicable Master Program policies and regulations and the consistency of the project with appropriate review criteria for the type of permit(s);
c. The final decision of the City;
e. Affidavit of public notice; and
f. Where applicable, the Director shall also file the applicable documents required by the State Environmental Policy Act (RCW
43.21C).
2. When the project has been modified in the course of the local review process, plans or text shall be provided to Ecology that clearly indicates the final approved plan.
3. If Ecology determines that the submittal does not contain all of the documents and information required by this section, Ecology shall identify the deficiencies and notify the City and the applicant in writing. Ecology will not act on Conditional Use or Variance Permit submittals until the material requested in writing is submitted to them.
4. Ecology shall convey to the City and applicant its final decision approving, approving with conditions, or disapproving the permit within thirty days (30) of the date of submittal by the City. The Director will notify those interested persons having requested notification of such decision.
5. Ecology shall base its determination to approve, approve with conditions or deny a Conditional Use Permit or Variance Permit on consistency with the policy and provisions of the SMA, the criteria listed in WAC
173-27 and this Program.
6. No construction pursuant to a substantial development permit, shoreline variance, or shoreline conditional use authorized by this program shall begin or be authorized and no building, grading or other construction permits shall be issued by the City until twenty-one (21) days from the date of receipt by the applicant and the City of Ecology’s decision or until all review proceedings are terminated.
I. Request for reconsideration.
1. A request for reconsideration may be made on any decision or ruling of the Director by any aggrieved person or entity having standing under this chapter.
2. Requests for reconsideration shall be made in accordance with TMC §
13.05.090.
J. Relief from development standards and use regulations.
1. The City may grant relief from Program development standards and use regulations when a shoreline restoration project causes or would cause a landward shift in the ordinary high water mark, resulting in one of the following:
a. Land that had not been regulated under this Program being brought into shoreline jurisdiction; or
b. Additional regulatory requirements applying due to a landward shift in required shoreline buffers or other regulations; or
c. 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;
2. The relief shall be proposed by the Director and must be the minimum necessary to relieve the hardship; result in a net environmental benefit from the restoration project; and be consistent with the objectives of the restoration project and consistent with this Program.
3. 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; and
4. The application for relief must be submitted to the State Department of Ecology for written approval or disapproval. This review must occur during the department's normal review of a shoreline substantial development permit, conditional use permit, or variance. If no such permit is required, then Ecology shall conduct its review when the City provides a copy of a complete application and all supporting information necessary to conduct the review.
(Ord. 28612 Ex. A, 2019-09-24; Ord. 28786 Ex. B, 2021-11-16, previously codified as TSMP Section 2.3.)