ORD 94-03 AMENDING CONDITIONAL USE AND VARIANCE PROCEDURESORDINANCE NO. 94-03
AN ORDINANCE of the City of Bainbridge Island,
Washington, relating to Conditional Use and
variance Procedures and amending Chapters 18.108
and 18.111 of the Bainbridge Island Municipal Code.
WHEREAS, the City adopted a zoning ordinance on February
20, 1992 establishing procedures for processing
applications for Variances and Conditional Uses; and
WHEREAS, after working with these procedures for two
years, the City has identified certain opportunities for
streamlining and simplifying these procedures. Now,
therefore
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON DO ORDAIN AS FOLLOWS:
Section 1. Chapter 18.111 is amended as follows:
Chapter 18.111
VARIANCES
section:
18.111.010 Purpose.
18.111.020 Applicable procedure.
18.111.030 Submittal requirements.
18.111.040 Decision criteria.
18.111.050 Time limits.
18.111.060 Extension
18.111.070 Revocation of permit.
18.111.080 Appeal Procedures
18.111.010 Purpose.
Variances are the mechanism by which the city may grant relief from
the provisions of the zoning ordinance where practical difficulty
renders compliance with certain provisions of the code an
unnecessary hardship, where the hardship is a result of the
physical characteristics of the subject property and where the
purpose of the comprehensive plan is fulfilled. A variance is
authorized only for lot coverage, size of structure or size of
yards and open spaces. Variances are not authorized for changes in
density requirements, building height requirements or expanding a
use otherwise prohibited. A variance shall not be granted because
of the presence of non -conformities in the zoning district or uses
in an adjoining zoning district.
18.111.020 Applicable Procedure.
The city shall process variance applications in accordance with the
following procedures:
A. Administrative Variance: An administrative variance process may
be used for minor projects as determined by the director.
Administrative variances shall follow the review procedures set
forth in Section 2.16.010. Minor projects should be limited to:
1. Projects that
Environmental
2. Proposals for
yards; or
are exempt from review under the State
Policy Act (SEPA); or
less than a 25% encroachment in required
3. Proposals of less than a 25% increase in lot coverage.
B. Regular Variance: All other variances shall be processed using
the procedures set forth in Section 2.16.050, hearing examiner
decision procedures.
C. Written comments from Affected Property Owners: Proposals that
have received written comments from affected property owners during
the early notice comment period identifying potential impacts that
cannot be addressed by the addition of reasonable conditions shall
be processed as regular variances.
D. Early Notice: Upon receipt of an application for an
administrative variance, if the variance is exempt from review
under the State Environmental Policy Act ( SEPA ), the department
shall provide notice of receipt of the proposed variance following
the procedures in Section 2.16.020 C.1 and 3. The notice shall
provide a ten day early comment period on the proposed variance. If
the proposal is not exempt from SEPA, the SEPA notice shall be
considered early notice.
E. Review by the planning commission: Any applicant for a variance
or any affected property owner who submitted written comments and
requested planning commission review during the early notice period
may request that a proposed variance be reviewed by the planning
commission for recommendation to the director or the hearing
examiner using the procedures set forth in Section 2.16.020.
Recommendations on administrative variances shall be forwarded to
the director. The director or the hearing examiner may remand a
project to the planning commission for review and recommendation.
18.111.030 Submittal requirements.
A. A variance application and fee as established by city council
resolution shall be filed with the department by the owner of
land for which the permit is sought, or by the owner's
authorized agent.
B. Required information shall include but shall not be limited
to:
1. The legal description of the property, tax lot number and
vicinity map; and
February 8, 1994 2 VARIANCE AND CONDITIONAL USE
2. A complete and detailed written statement of the
reason(s) for requesting the variance and the sequence
and timing of any proposed development; and
3. A graphic scale drawing of the property indicating:
a. North point; and
b. Boundaries, easements, and ownerships as set forth in the
legal description; and
c. Existing structures and improvements; and
d. Topography at appropriate contour intervals; and
e. Location of existing vegetation, including all trees over
ten inches in diameter that might be impacted by the
proposal ,watercourses,other natural features and
environmentally sensitive areas; and
f. Proposed improvements, if any; and
g. Utilities and/or septic designs and circulation plans, if
appropriate; and,
h. All adjacent streets and rights -of -ways; and
4. The terms, conditions, covenants, and agreements under
which the subject property is bound, if any; and
5. An environmental checklist when required; and
6. Other plans and drawings deemed necessary by the
director for evaluation of the merits of the proposal.
C. An application shall not be considered complete until all
submittal requirements, the required fee and any other
supporting materials required by the director are submitted to
the department.
D. The director may waive specific submittal requirements
determined to be unnecessary for review of an application.
18.111.040 Decision criteria
A. A Variance may be approved or approved with modifications if:
1. The variance will not constitute a grant of special
privilege inconsistent with the limitations upon uses of
other properties in the vicinity and zone in which the
property is located;
2. The granting of the variance will not be materially
detrimental to the public welfare or injurious to the
property or improvements in the vicinity and zone in
which the property is located;
3. The variance is requested because of special
circumstances related to the size, shape, topography,
location or surroundings of the subject property and will
provide an applicant with use rights and privileges
permitted to other properties in the vicinity and zone in
which the property is located;
4. The need for a variance has not arisen from actions taken
or proposed by the applicant;
5. The variance is necessary for the preservation and
February 8, 1994 3 VARIANCE AND CONDITIONAL USE
enjoyment of a substantial property right possessed by
other property in the same vicinity and zone, but which
is denied to the property in question because of special
circumstances on the property in question;
6. The variance is the minimum necessary to fulfill the need
of the applicant; and
7. The variance is consistent with all other provisions of
this code and is in accord with the comprehensive plan.
B. A variance may be approved with conditions. If no reasonable
conditions can be imposed that ensure the application meets the
decision criteria of this chapter, then the application shall be
denied.
18.111.050 Time limits.
A variance automatically expires and is void if the applicant fails
to file for a building permit or other necessary development permit
within three years of the effective date of the variance unless:
A. The applicant has received an extension for the variance; or
B. The variance approval provides for an extended time period.
18.111.060 Extension.
The
director may grant one extension to the variance for a period
not
to exceed one year if:
A.
Unforeseen circumstances or conditions
necessitate the
extension of the variance; or
B.
Termination of the variance would
result in unreasonable
hardship to the applicant, and
the applicant is not
responsible for the delay; and
t C.
The extension of the variance will
not cause substantial
detriment to existing uses in the immediate vicinity of the
subject property; and
D.
The extension request is received by
the department no later
than 30 days prior to the expiration
of the permit.
18.111.070 Revocation of permit
A. The administrative variance may be revoked by the director and
a regular variance may be revoked by the hearing examiner
following the procedures in Chapter 2.16 upon the finding of
any one or more of the following:
1. That the approval was obtained by deception, fraud or
other intentional or misleading representation; or
2. That the variance granted is being exercised contrary to
the terms or conditions of such approval; or
3. That the variance for which the approval was granted was
so exercised as to be detrimental to the public health or
safety.
February 8, 1994 4 VARIANCE AND CONDITIONAL USE
18.111.080 Appeals:
A. Appeal of an Administrative Decision: A decision on an
administrative variance may be appealed to the hearing examiner
within 10 calendar days in accordance with the provisions of
Section 2.16.060.
B. Appeal of a hearing examiner Decision: A decision on a regular
variance may be appealed to the city council within 10 calendar
days in accordance with the provisions of Section 2.16.060.
Section 2. Chapter 18.108 is amended as follows:
Chapter 18.108
CONDITIONAL USE PERMIT PROCEDURES
Section:
18.108.010
Purpose.
18.108.020
Applicable procedure.
18.108.030
Submittal requirements.
18.108.040
Decision criteria.
18.108.050
Effect of conditional use permit.
18.108.060
Time limits.
18.108.070
Adjustments to a conditional use permit.
18.108.080
Extension.
18.108.090
Revocation of permit.
18.108.100
Appeal
18.108.010 Purpose.
A conditional use permit is a mechanism by which the city may
require specific conditions on development or the use of land to
ensure that designated uses or activities are compatible with other
uses in the same zone and in the vicinity of the subject property.
If imposition of conditions will not make a specific proposal
compatible, the proposal shall be denied.
18.108.020 Applicable Procedure.
The city shall process conditional use applications in accordance
with the following procedures:
A. Administrative Conditional Use: An administrative conditional
use process may be used for minor projects as determined by
the director. An administrative conditional use process shall
follow the review procedures set forth in Section 2.16.010.
Minor projects may include but are not limited to :
1. Projects that are exempt from review under the State
Environmental Policy Act (SEPA); or
2. Uses that are clearly consistent and compatible
with other uses in the same zone and vicinity; or
February S. 1994 5 VARIANCE AND CONDITIONAL USE
3. The Use is specifically listed as a conditional use
in the zone in which it is proposed.
B. Regular Conditional Use: All other conditional uses shall be
processed using the procedures set forth in Section 2.16.050,
hearing examiner decision procedures.
C. Written comments from Affected Property Owners: Proposals that
have received written comments from affected property owners during
the early notice comment period identifying potential impacts that
cannot be addressed by the addition of reasonable conditions shall
be processed as regular conditional use permits.
D. Early Notice: Upon receipt of an application for an
administrative conditional use, if the conditional use is exempt
from review under SEPA, the department shall provide notice of
receipt of the proposed conditional use following the procedures in
Sections 2.16.020.C.1 and 3. The notice shall provide for a ten
day early comment period on the proposed conditional use. If the
proposal is not exempt from SEPA, the SEPA notice shall be
considered early notice.
E. Review by the Planning Commission: Any applicant for a
conditional use or any affected property owner who submitted
written comments requesting planning commission review during the
early notice comment period may request that a proposed conditional
use be reviewed by the planning commission for recommendation to
the director or the hearing examiner using the procedures set forth
in Section 2.16.020. Recommendations on administrative conditional
uses shall be forwarded to the director. The director or the
hearing examiner may remand a proposal to the planning commission
for review and recommendation.
18.108.030 Submittal Requirements.
A. A conditional use permit application and fee as established by
city council resolution shall be filed with the department by
the owner of land for which the permit is sought, or by the
owner's authorized agent.
B. Required information shall include but shall not be limited
to:
1. The legal description of the property, tax lot number and
vicinity map; and
2. A complete and detailed written statement of the intended
use of the land and the sequence and timing of the
proposed development; and
3. A graphic scale drawing of the property indicating:
a. North point; and
b. Boundaries, easements, and ownerships as set forth in the
legal description; and
c. Topography at appropriate contour intervals; and
February 81 1994 6 VARIANCE AND CONDITIONAL USE
d. Existing structures and improvements; and
e. Location of existing vegetation including all trees over
ten inches in diameter that might be impacted by the
proposal, watercourses, other natural features and,
environmentally sensitive areas; and
f. Proposed improvements, if any; and
g. Utilities and/or septic design, if appropriate; and
h. Circulation plans; and
i. All adjacent streets and rights-of-way; and
j. Landscaping plans in accordance with BIMC Chapter 18.84,
Landscaping and Open Space requirements; and,
4. The terms, conditions, covenants, and agreements under
which the subject property is bound, if any; and
5. An environmental checklist, when required; and
6. A statement regarding proposed dedication of trails and
parks if required by Chapter 17.08; and
7. Other plans and information deemed necessary by the
director for evaluation of the merits of the proposal.
C. An application shall not be considered complete until all
submittal requirements, the required fee and any other
support materials required by the director are submitted to
the department.
D. The director may waive specific submittal requirements
determined to be unnecessary for review of an application.
18.108.040 Decision criteria.
A. A conditional use may be approved or approved with
modifications if:
1. The conditional use is harmonious and appropriate in
design, character and appearance with the existing or
intended character and quality of development in the
immediate vicinity of the subject property and with the
physical characteristics of the subject property;
2. The conditional use will be served by adequate public
facilities including roads, water, fire protection,
sewage disposal facilities and storm drainage facilities;
3. The conditional use will not be materially detrimental to
uses or property in the immediate vicinity of the subject
property;
4. The conditional use is in accord with the comprehensive
plan;
5. The conditional use complies with all other provisions of
this code;
6. The conditional use will not adversely affect the area or
alter the area's predominantly residential nature; and
7. All necessary measures have been taken to eliminate the
impacts that the proposed use may have on the surrounding
area.
February 8, 1994 7 VARIANCE AND CONDITIONAL USE
area.
B. A conditional use may be approved with conditions. If no
reasonable conditions can be imposed that ensure the
application meets the decision criteria of this chapter, then
the application shall be denied.
18.108.050 Effect of conditional use Permit.
A. Once a conditional use permit is approved, no building or
development shall occur contrary to that specified in the
conditional use permit.
B. The owner shall record a declaration with the Kitsap County
Auditor showing the land to be bound by a conditional use
permit.
1. The declaration shall reference the official files of the
city through which the permit was granted.
2. The declaration shall be a covenant running with the
land.
3. No building permit shall be issued unless such
declaration is recorded.
4. No building permit shall be issued for structures other
than those specified in the permit.
18.108.060 Time limits.
The conditional use permit automatically expires and is void if the
applicant fails to file for a building permit or other necessary
development permit within three years of the effective date of the
conditional use permit unless:
A. The applicant has received an extension for the conditional
use permit in accordance with Section 18.108.070; or
B. The conditional use permit approval provides for a greater
time period.
18.108.070 Extension.
The department may extend a conditional use permit once for a
period not to exceed one year if:
A. The extension request is received by the Department no later
than 30 days prior to the expiration of the permit;
B. Unforeseen circumstances or conditions necessitate the
extension of the permit;
C. Termination of the permit would result in unreasonable
hardship to the applicant, and the applicant is not
responsible for the delay; and
D. An extension of the permit will not cause substantial
detriment to existing uses in the immediate vicinity of the
subject property.
February 8, 1994 8 VARIANCE AND CONDITIONAL USE
18.108.080 Adjustments to a Conditional Use Permit.
A. Minor adjustments to an approved conditional use permit may be
made after review and approval by the director. Minor
adjustments are those that entail minor changes in dimensions
or siting of structures, location of public amenities, but do
not entail changes to the intensity or character of the use.
B. For both administrative and regular conditional use permits,
adjustments other than minor adjustments to an approved
conditional use permit require an amended application and
shall be processed in the same manner as a new conditional use
permit application . Major adjustments are those which change
the basic design, intensity, density, and/or use.
18.108.090 Revocation of permit
A. The administrative conditional use permit may be revoked by
the director and a regular conditional use permit may be
revoked by the hearing examiner following the procedures in
Chapter 2.16 upon the finding of any one or more of the
following:
1. That the approval was obtained by deception, fraud or
other intentional or misleading representation;
2. That the use for which approval was granted has been
changed or has at any time been discontinued for a year
or more;
3. That the permit granted is being exercised contrary to
the terms or conditions of such approval or in violation
of the zoning code; or
4. That the use for which the approval was granted was so
exercised as to be detrimental to the public health or
safety.
18.108.100 Appeals
A. Appeal of an Administrative Decision: A decision on an
administrative conditional use may be appealed to the hearing
examiner within 10 calendar days in accordance with the provisions
of Section 2.16.060.
B. Appeal of a Hearing Examiner Decision: A decision on a regular
conditional use may be appealed to the city council within 10
calendar days in accordance with the provisions of Section
2.16.060.
Section 3. This ordinance shall take effect and be in
force five days from and after its passage,
approval and publication as required by law.
PASSED by the City Council this 3rd day of March , 1994.
February 8, 1994 9 VARIANCE AND CONDITIONAL USE
APPROVED by the Mayor thisW day of b i ejA� J- 19
94.
c
Janet K. West, ayor
ATTEST/AUTHENTICATED:
6/7-Y e c EA44
APPROVED AS TO FORM:
Rod P. Kaseguma, City Attorney
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL•
PUBLISHED: 3 -9-,yv
EFFE0-rlgE D. rFe : 3
m�IN,tht1�E #� yy- 03
ref: c:\tcr\sw\cupvar.fin
February 8, 1994 10 VARIANCE AND CONDITIONAL USE