A. 
To be authorized, all uses and development shall be carried out in a manner that is consistent with this Shoreline Program and the policies of the Shoreline Management Act as required by RCW 90.58.140(1), regardless of whether a substantial shoreline development permit, letter of exemption, shoreline variance, or shoreline conditional use permit is required.
B. 
No use, alteration, or development shall be undertaken within the shorelines regulated under this Shoreline Program by any person without first obtaining a permit or letter of exemption.
C. 
Applicants shall apply for a shoreline substantial development permit, variance, conditional use permit or letter of exemption on forms provided by the City.
D. 
The City shall process applications for a shoreline substantial development permit, shore-line variance, or shoreline conditional use permit in accordance with Chapter 22.05 UPMC. However, the public comment period established in UPMC § 22.05.060(D)(1) shall not apply; the public comment period shall be 30 days. The time requirements in WAC 173-27-090 shall be applied to all permits issued or development authorized under this Shoreline Program.
E. 
When developing and adopting procedures for administrative interpretation of this Master Program, the City shall consult with the Department of Ecology to ensure that any formal written interpretations are consistent with the purpose and intent of the Act and the SMP Guidelines.
F. 
Permit revisions are required to comply with the revision approval criteria in WAC 173-27-100.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
A shoreline substantial development permit shall be required for all proposed use and development of shorelines unless the proposal is specifically exempted in accordance with WAC 173-27-040.
B. 
In order to be approved, the Examiner shall find that the proposal is consistent with the following criteria:
1. 
All regulations of this Shoreline Program appropriate to the shoreline environment designation and the type of use or development proposed shall be met, except those bulk and dimensional standards that have been modified by approval of a shoreline variance.
2. 
All policies of this Shoreline Program appropriate to the shoreline environment designation and the type of use or development activity proposed shall be considered and compliance demonstrated.
C. 
Consideration shall be given to the cumulative environmental impact of additional requests for like actions in the vicinity of the project site. For example, if shoreline substantial development permits were granted for other developments in the area where similar circumstances exist, the sum of the authorized 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.
D. 
The City is the final authority for a shoreline substantial development permit, unless an appeal is filed with the State Shorelines Hearings Board.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
Certain developments are exempt from the requirement to obtain a substantial development permit. Developments that are exempt from the requirement for a substantial development permit are identified in WAC 173-27-040, RCW 90.58.147, and the definition of exempt development in UPMC § 18.10.020.
1. 
Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the substantial development permit process.
2. 
An exemption from the substantial development permit process is not an exemption from compliance with the Act or this Shoreline Program, or from any other regulatory requirements. To be authorized, all uses and developments must be consistent with the policies and provisions of this Shoreline Program and the Act. A development or use that is listed as a conditional use pursuant to this Shoreline Program, or is an unlisted use, must obtain a conditional use permit even though the development or use does not require a substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of this Shoreline Program, such development or use can only be authorized by approval of a variance.
3. 
The burden of proof that a development or use is exempt from the permit process is on the applicant.
4. 
If any part of a proposed development is not eligible for exemption, then a substantial development permit is required for the entire proposed development project.
5. 
The Administrator may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the Act and this Shoreline Program.
6. 
A use or activity that is exempt from the critical area review process under UPMC Title 17 is not automatically exempt from the requirements of this Shoreline Program. Such use or activity is exempt from a requirement to obtain a shoreline substantial development permit only if explicitly named under WAC 173-27-040.
B. 
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 Administrator: 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 buffer.
2. 
Other activities identified in WAC 173-27-040, RCW 90.58.147, and the definition of exempt development in UPMC § 18.10.020 that do not involve one of the activities specified in subsection (B)(1) of this section may be undertaken without a letter of exemption; provided, that advance notification of the action has been provided to the City. If the Administrator 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 subsection (B)(1) of this section, 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. 
A letter of exemption is not required for emergency development pursuant to WAC 173-27-040(2)(d).
5. 
A notice of decision for a letter 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 U.S. Army Corps of Engineers 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, a Joint Aquatic Resource Permit Application (JARPA). Applicants may use the JARPA process to apply for, at one time, any or all of the permits below:
Federal
•
U.S. Army Corps of Engineers (Corps): Section 10 and Section 404 (Corps Permits FAQ).
•
U.S. Coast Guard: General Bridge Permit and Private Aids to Navigation (PATON).
State
•
Washington Department of Ecology: 401 Water Quality Certification.
•
Washington Department of Fish and Wildlife: Hydraulic Project Approval (HPA FAQ).
•
Washington Department of Natural Resources: Aquatic Use Authorization.
Local
•
Shoreline Substantial Development Permit.
•
Shoreline Conditional Use Permit.
•
Shoreline Variance.
•
Shoreline Exemption.
•
Shoreline Revision.
Information shall be provided that is sufficient for the Administrator to determine if the proposal will comply with the requirements of this Shoreline Program.
7. 
A denial of an exemption shall be in writing and shall identify the reason(s) for the denial. The Administrator’s decision on a statement of exemption is subject to administrative appeal.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
The purpose of a shoreline conditional use permit is to allow a case-by-case review of certain uses which may have a greater potential for impacts without project-specific conditions. In authorizing a shoreline conditional use permit, special conditions may be attached by the City or the Department of Ecology to prevent any undesirable effects of the proposed use and/or to assure consistency of the project with the Act and this Shoreline Program.
B. 
When a conditional use is requested, the Examiner shall be the final approval authority for the City. However, shoreline conditional uses must have approval from the State. The Department of Ecology shall be the final approval authority under the authority of WAC 173-27-200.
C. 
Uses which are classified in this Shoreline Program as conditional uses may be authorized; provided, that the applicant can satisfy all of the criteria set forth in WAC 173-27-160:
1. 
That the proposed use will be consistent with the policies of RCW 90.58.020 and the Shoreline Program;
2. 
That the proposed use will not interfere with the normal public use of public shorelines;
3. 
That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the Comprehensive Plan and Shoreline Program;
4. 
That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and
5. 
That the public interest suffers no substantial detrimental effect.
D. 
Consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if shoreline 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 and shall not produce substantial adverse effects to the shoreline environment. Other uses that are not specifically classified as a permitted or conditional use in this Shoreline Program may be authorized as a conditional use; provided, that the applicant can satisfy the criteria set forth in WAC 173-27-160 (see subsection (C) of this section) and this Shoreline Program.
E. 
Uses that are specifically prohibited by this Shoreline Program shall not be authorized as conditional uses.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
The purpose of a shoreline variance is strictly limited to granting relief from specific bulk, dimensional, or performance standards set forth in this Shoreline Program where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of this Shoreline Program will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020.
B. 
When a shoreline variance permit is requested, the Examiner shall be the City’s final approval authority. However, shoreline variances must have approval from the State. The Department of Ecology shall be the final approval authority under the authority of WAC 173-27-200.
C. 
Shoreline variances should be granted in circumstances where denial of the variance would result in a thwarting of the policy enumerated in RCW 90.58.020. In all instances the applicant must demonstrate that extraordinary circumstances shall be shown and the public interest shall suffer no substantial detrimental effect.
D. 
Variances from the use regulations of this Shoreline Program are prohibited.
E. 
Land shall not be subdivided to create parcels that are buildable only with a shoreline variance or would be considered nonconforming.
F. 
Variances for development and/or uses that will be located landward of the ordinary high water mark and/or landward of any wetland may be authorized, provided the applicant can demonstrate all of the following:
1. 
That the strict application of the bulk, dimensional or performance standards set forth in this Shoreline Program precludes, or significantly interferes with, reasonable use of the property;
2. 
That the hardship described above 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 Shoreline Program;
3. 
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 Program and will not cause adverse impacts to the shoreline environment;
4. 
That the variance will not constitute a grant of special privilege not enjoyed by other properties in the area;
5. 
That the variance request is the minimum necessary to afford relief;
6. 
That the public interest will suffer no substantial detrimental effect; and
7. 
That the need for the variance is not the result of deed restrictions or deliberate actions of the applicant or property owner.
G. 
Variances for development and/or uses that will be located waterward of the ordinary high water mark or within any wetland may be authorized provided the applicant can demonstrate all of the following:
1. 
That the strict application of the bulk, dimensional or performance standards set forth in this Shoreline Program precludes all reasonable use of the property not otherwise prohibited by this Shoreline Program;
2. 
That the proposal is consistent with the criteria established under subsection (F) of this section; and
3. 
That the public rights of navigation and use of the shoreline will not be adversely affected.
H. 
In the granting of all shoreline variances, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if variances were granted for other developments in the area where similar circumstances exist, the total of the variances shall also remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
Other uses not specifically classified or set forth in this Shoreline Program, including the expansion or resumption of a nonconforming use, may be authorized as shoreline conditional uses, provided the applicant can demonstrate all of the following:
1. 
The proposal will satisfy the shoreline conditional use permit criteria set forth in UPMC § 18.15.040(C);
2. 
The use clearly requires a specific site location on the shoreline not provided for under this Shoreline Program;
3. 
Extraordinary circumstances preclude reasonable use of the property in a manner consistent with the use regulations of this Shoreline Program; and
4. 
The use is not a residential dwelling unit or other residential use.
B. 
Uses that are specifically prohibited in this Shoreline Program cannot be authorized by a shoreline conditional use permit.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
General Provisions. Uses, lots or structures within the shoreline jurisdiction that do not meet the specific standards of this Shoreline Program shall be regulated pursuant to Chapter 19.80 UPMC, Nonconforming Lots, Uses, and Structures.
B. 
Continuance. Subject to the provisions of this Shoreline Program, a lot, use or structure law-fully existing prior to the effective date of this Program or any amendment thereto, which is rendered nonconforming by adoption of this Shoreline Program or an amendment, may continue in the manner and to the extent that it existed upon the effective date of this Shoreline Program or amendment, respectively.
C. 
Nonconforming Development Regulations.
1. 
Nonconforming lots, uses and structures shall be regulated in accordance with Chapter 19.80 UPMC. In addition to provisions contained therein, the following provisions shall apply within the shoreline jurisdiction:
a. 
Any actions taken under the provisions of Chapter 19.80 UPMC shall not create adverse impacts to shoreline ecological functions and processes, and shall consider the cumulative impacts associated with the proposed action;
b. 
Required vegetation conservation areas are provided pursuant to UPMC § 18.25.100;
c. 
Expansion of a nonconforming structure within the required shoreline setback, whether horizontally or vertically, shall be prohibited;
d. 
The Administrator may authorize expansion of a nonconforming structure, provided:
(1) 
The expansion is located entirely outside of the VCA, VCA setback, and shoreline setback;
(2) 
The expansion is consistent with all other provisions of this Shoreline Program; and
(3) 
The expansion does not increase the degree of nonconformity. If the expansion would comply with subsections (C)(1)(d)(1) and (C)(1)(d)(2) of this section but increase the degree of zoning nonconformity, a variance would be required pursuant to UPMC § 19.80.050(A)(1). This provision could apply, for example, to a proposal with a front yard setback that complies with all Shoreline Program requirements but requires a zoning variance;
e. 
Notwithstanding UPMC § 19.80.050(A)(2), the Administrator may authorize relocation of a nonconforming structure, provided the structure is brought as closely as practicable into conformance with the applicable provisions of this Shoreline Program;
f. 
An expanded or relocated structure for which an administrative authorization has been issued consistent with the criteria listed in subsection (C)(1)(d) or (e) of this section shall be considered a legal nonconforming structure and the requirements of this section shall apply as they apply to preexisting nonconforming structures;
g. 
A nonconforming use may not be converted to a use that is specifically prohibited in this Shoreline Program; and
h. 
The applicant shall obtain required shoreline permits or approvals prior to construction.
2. 
Existing nonconforming covered moorage may be maintained, repaired, or replaced in accordance with WAC 173-27-040 and the requirements of the Department of Natural Resources.
3. 
The expansion of a nonconforming use may be authorized as a shoreline conditional use, provided the applicant demonstrates compliance with the standards in UPMC § 18.15.060(A).
4. 
If a nonconforming use is discontinued for 12 consecutive months or for 12 months during any two-year period, the nonconforming rights shall expire and any subsequent use shall be conforming unless reestablishment of the use is authorized through a shoreline conditional use permit, provided the applicant demonstrates compliance with the standards in UPMC § 18.15.060(A) and the permit is applied for within the two-year period. Water-dependent uses should not be considered discontinued when they are inactive due to dormancy, or where the use includes phased or rotational operations as part of typical operations.
D. 
Existing, lawfully established single-family residences on Day Island, Day Island South Spit and Sunset Beach located closer to the ordinary high water mark than the setback specified in Table 18.30.B shall be considered conforming structures for purposes of this SMP. Such structures may be expanded in accordance with footnotes 30 and 31 on Table 18.30.B, and shall be subject to the substantial destruction provisions in UPMC § 19.80.050(A)(4) and (5).
E. 
Procedure for Development of a Nonconforming Lot.
1. 
When lot size would prevent development of a nonconforming lot consistent with the applicable shoreline setback requirements, the Examiner may authorize development under the following conditions:
a. 
A written request for a shoreline variance is received from the project proponent;
b. 
The development will be located as far landward as possible from the ordinary high water mark; and
c. 
The decision of the Examiner shall be based upon the shoreline variance criteria found in UPMC § 18.15.050(F).
(Ord. 652 § 1 (Exh. A), 2015; Ord. 703 § 1 (Exh. A), 2018)
A. 
All development proposals under the jurisdiction of this Shoreline Program shall satisfy the application submittal requirements set forth in UPMC Titles 19, Zoning; 21, Subdivision Regulations; and 22, Administration of Development Regulations, including the submittal of forms provided by the City and the payment of fees in accordance with the current fee schedule adopted by Council resolution. A complete application for a shoreline substantial development permit, shoreline conditional use permit, or shoreline variance permit shall contain, at a minimum, the information contained in WAC 173-27-180.
B. 
The Administrator may accept a Joint Aquatic Resources Permit Application (JARPA) in lieu of the submittal requirements in subsection (A) of this section, where applicable.
C. 
The Administrator may waive permit submittal requirements on a case-by-case basis and may request additional information, as necessary.
D. 
In addition to the submittal requirements in subsection (A) of this section, development proposals on shoreline parcels that are located within critical areas and/or their buffers shall submit critical area reports and plans as required in UPMC Title 17, Division 1.
(Ord. 652 § 1 (Exh. A), 2015)
A. 
The Department of Ecology shall be notified of any substantial development, conditional use or variance permit decision made by the Examiner or Administrator, whether it is an approval or denial. The notification shall occur concurrently with the transmittal of the ruling to the applicant. 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. After all local permit administrative appeals or reconsideration periods are complete and the permit documents are amended to incorporate any resulting changes, the Administrator shall mail the permit and the following items using return receipt requested mail to the Department of Ecology and the Office of the Attorney General:
1. 
A copy of the complete application per WAC 173-27-180;
2. 
Findings and conclusions that establish the basis for the decision, including but not limited to identification of shoreline environment designation, applicable Shoreline Program policies and regulations and the consistency of the project with appropriate review criteria for the type of permit(s);
3. 
The final decision of the City;
4. 
The permit data sheet per WAC 173-27-190;
5. 
Affidavit of public notice; and
6. 
Where applicable, the Administrator shall also file the applicable documents required by the State Environmental Policy Act (Chapter 43.21C RCW).
B. 
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.
C. 
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.
D. 
Ecology shall convey to the City and applicant its final decision approving, approving with conditions, or disapproving the permit within 30 days of the date of submittal by the City. The Administrator will notify those interested persons having requested notification of such decision.
E. 
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 Chapter 173-27 WAC and this Shoreline Program.
F. 
Consistent with RCW 90.58.140(6), the State’s Shoreline Hearings Board 21-day appeal period starts with the date of filing, which is defined below:
1. 
For projects that only require a substantial development permit: the date that Ecology receives the City’s decision.
2. 
For a conditional use permit or variance: the date that Ecology’s decision on the conditional use permit or variance is transmitted to the applicant and City.
3. 
For substantial development permits simultaneously mailed with a conditional use permit or variance to Ecology: the date that Ecology’s decision on the conditional use permit or variance is transmitted to the applicant and the City.
G. 
No construction pursuant to a shoreline substantial development permit, shoreline variance, or shoreline conditional use authorized by this Shoreline Program shall begin or be authorized, and no building, grading or other construction permits shall be issued by the City, until 21 days from the date of filing or until all review proceedings are terminated.
(Ord. 652 § 1 (Exh. A), 2015; Ord. 703 § 1 (Exh. A), 2018)
Pursuant to RCW 90.58.200, the Administrator or authorized representatives may enter land or structures to enforce the provisions of this Shoreline Program.
(Ord. 652 § 1 (Exh. A). 2015; Ord. 670 § 1 (Exh. A), 2016)
A. 
The Shoreline Management Act imposes significant penalties for violation of the Act, regulations and master programs. A violation constitutes a gross misdemeanor, which is punishable by fine or imprisonment. In addition to the criminal penalty, the Act imposes liability on any person violating the Act or conditions of a permit for all damage to public or private property arising from the violation. Furthermore, the violator may have to restore an area affected by a violation, and pay the entire cost of restoration, including attorney’s fees and court costs.
B. 
Enforcement action may be taken by the City or Department of Ecology whenever a person has violated any provision of the Shoreline Management Act or this Shoreline Program or other regulation promulgated under the Act. Enforcement action by the City shall be in accordance with Chapters 1.20 and/or 1.30 UPMC for enforcement procedures and penalties.
(Ord. 652 § 1 (Exh. A), 2015; Ord. 670 § 1 (Exh. A), 2016)
A. 
This Shoreline Program shall be reviewed periodically and amendments shall be made as are necessary to reflect changing local circumstances, new information or improved data, and changes in State statutes and regulations.
B. 
The City’s established permit tracking system, aerial photos, reviewing of other available data, and field observations as feasible shall be used to periodically evaluate the effectiveness of this Shoreline Program in achieving no net loss of shoreline ecological functions with respect to both permitting and exemptions.
C. 
As part of any required SMP update, an evaluation report assessing the cumulative effects of development on shoreline conditions and the effectiveness of this Shoreline Program in achieving no net loss shall be prepared and considered in determining whether policies and regulations are adequate in achieving this requirement.
D. 
The Shoreline Program review and update process shall be consistent with the requirements of Chapter 173-26 WAC or its successor and shall include a local citizen involvement effort and public hearing to obtain the views and comments of the public.
(Ord. 652 § 1 (Exh. A), 2015)
Requirements to obtain a shoreline 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:
A. 
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 Chapter 70.105D RCW, or to the Department of Ecology when it conducts a remedial action under Chapter 70.105D RCW;
B. 
Boatyard Improvements to Meet 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 a National Pollutant Discharge Elimination System storm water general permit;
C. 
WSDOT Facility Maintenance and Safety Improvements. Pursuant to RCW 90.58.356, Washington State Department of Transportation 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;
D. 
Projects consistent with an environmental excellence program agreement pursuant to RCW 90.58.045; and
E. 
Projects authorized through the Energy Facility Site Evaluation Council Process, pursuant to Chapter 80.50 RCW.
(Ord. 703 § 1 (Exh. A), 2018)