This article delves into Chapter 23.50 of the Whatcom County Shoreline Management Program, providing a comprehensive overview of its applicability, relationship with other regulations, and guidelines for nonconforming uses. Understanding Chapter 23.50 is crucial for anyone involved in development or property management within Whatcom County’s shoreline areas. This section of the program ensures that all activities within shorelines are consistent with the Shoreline Management Act and local regulations, promoting responsible and sustainable shoreline development.
Who and What is Covered Under Chapter 23.50?
Chapter 23.50.010 clearly defines the scope of the Shoreline Management Program’s application. It applies to any “person” and any “use or development” within the shorelines of Whatcom County, as defined in Chapter 23.110 WCC. This broad application means that whether you are an individual, a business, or another type of entity, and whether you are planning a small modification or a large-scale development, Chapter 23.50 is relevant to you if your project is located within shoreline jurisdiction.
Crucially, consistency with the Shoreline Management Program is mandated by RCW 90.58.140(1) for all shoreline development, regardless of whether a shoreline permit is required. This underscores the importance of understanding and adhering to these regulations from the outset of any project. For substantial developments, obtaining a substantial development permit from Whatcom County is mandatory before commencement, unless the activity is explicitly exempt under WCC 23.60.022.
Navigating Local Regulations: The Role of Chapter 23.50
Section 23.50.020 outlines the relationship between the Shoreline Management Program and other local regulations. It establishes a clear hierarchy and process to ensure cohesive regulatory oversight.
For developments requiring a shoreline permit, Chapter 23.50 stipulates that a building permit will not be issued until the shoreline permit is granted. Furthermore, any building permit issued will be subject to the same terms and conditions as the shoreline permit, ensuring consistency and integrated compliance.
Even for developments exempt from the substantial development permit requirement, a statement of exemption is generally needed before a building permit can be issued. An exception is made for single-family residences, where a building permit reviewed and signed off by the administrator can suffice, provided it documents compliance with bulk and dimensional standards and program regulations. This streamlined process for single-family homes aims to simplify compliance while maintaining regulatory standards.
Chapter 23.50 also addresses zoning conditional use permits and variances. For developments within shorelines requiring these permits under WCC Title 20, the decision-maker must ensure compliance with Chapter 23.50 standards. This is achieved through documented compliance and the attachment of conditions to these permits, ensuring shoreline program consistency. Similarly, land divisions such as short subdivisions and planned unit developments are subject to Chapter 23.50 compliance, with decision-makers required to document adherence and impose conditions to guarantee alignment with the program.
Furthermore, 23.50.020E provides a non-exhaustive list of other potentially applicable local ordinances, including building codes, boating and swimming regulations (WCC Title 11), on-site sewage system regulations (Chapter 24.05 WCC), solid waste rules (Chapter 24.06 WCC), zoning (WCC Title 20), land division regulations (WCC Title 21), and general development standards. This highlights the interconnectedness of shoreline management with a broader range of local regulations.
State and Federal Regulatory Context: Chapter 23.50’s Place
Section 23.50.030 emphasizes that compliance with the Shoreline Management Program does not absolve applicants from adhering to other state and federal laws. Obtaining a shoreline permit or exemption is just one step in the regulatory process.
The administrator is tasked with informing applicants about other potentially relevant state and federal statutes at the application or inquiry stage. However, the ultimate responsibility for identifying and complying with all applicable regulations rests with the applicant. This proactive approach by the administrator aims to guide applicants, but the onus of due diligence remains with the developer.
Chapter 23.50 provides lists of potentially applicable Washington State statutes (23.50.030C), regional authority regulations (23.50.030D), and federal statutes (23.50.030E). These lists, while not exhaustive, serve as a valuable starting point for understanding the complex regulatory landscape surrounding shoreline development. Examples include the Flood Control Zone Act, Forest Practices Act, Water Pollution Control Act at the state level, and the Rivers and Harbors Act, Clean Water Act, and Endangered Species Act at the federal level.
Applicability within Federal Reserves and Property Rights Considerations
Section 23.50.040 clarifies the application of the Shoreline Management Program within federal reserves. It states that the program’s permit procedures and regulations apply to shoreline development within national forests, parks, and recreation areas by non-federal entities. However, it also acknowledges RCW 90.58.350, which exempts lands held in trust by the U.S. for Indian tribes from the program’s provisions. This section balances federal and local regulatory frameworks, respecting tribal sovereignty while ensuring shoreline management for other developments within federal reserves.
Chapter 23.50.080 addresses property rights, ensuring that shoreline permit decisions respect constitutional and legal limitations on private property regulation. It mandates that permit conditions must be related to public health, safety, and welfare, consistent with the Shoreline Management Act’s purposes, and proportionally related to the expected impact. Importantly, the program does not alter existing laws regarding property access or trespass and does not grant public access to private property without owner permission. This section underscores the program’s commitment to balancing environmental protection with private property rights.
Program Effects on Property Values and Hazardous Substance Remediation
Section 23.50.050 addresses the potential effects of the Shoreline Management Program on property values. It references RCW 90.58.290, stating that restrictions imposed by the program should be considered when establishing fair market value for properties. Furthermore, designation of private property as a natural or conservancy shoreline area can qualify it as “open space land” under the Open Space Taxation Act, potentially leading to tax benefits for landowners committed to conservation.
Chapter 23.50.060 addresses hazardous substance remedial actions, streamlining the process for environmental cleanup projects. It exempts projects under consent decree or order pursuant to Chapter 70.105D RCW, and remedial actions conducted by the Department of Ecology under the same chapter, from the procedural requirements of Chapter 90.58 RCW. However, it mandates that the Department of Ecology, in consultation with the administrator, ensures these projects comply with the substantive requirements of Chapter 90.58 RCW, WAC 173-26, and the Shoreline Management Program. This balances the need for efficient environmental remediation with the substantive goals of shoreline management.
Nonconforming Development: Managing Existing Uses
Section 23.50.070 provides detailed regulations for nonconforming development – uses, buildings, or structures that were lawfully established but do not meet current program standards. This section recognizes existing legal uses while aiming to gradually bring nonconforming situations into compliance over time, without unduly disrupting established activities.
Lawfully established uses existing on August 27, 1976 (the program’s initial adoption date) or authorized prior to that date are considered nonconforming and may continue, subject to specific provisions. Similarly, existing conditional uses that did not obtain a conditional use permit prior to program adoption are also considered legal nonconforming uses and can continue under certain conditions. Structures with variances that do not comply with program requirements are also treated as legal nonconforming structures.
Chapter 23.50 allows for maintenance, repair, renovation, or remodeling of nonconforming structures as long as the nonconformity is not increased. However, moving a nonconforming development necessitates bringing it into full conformance. Nonconforming docks, as conditional uses, can be modified within the same general location to improve SMP consistency.
Expansions or enlargements of nonconforming structures (excluding single-family residences and their appurtenances) generally require a variance or must be brought into conformance. However, expansions of conforming uses within the existing building footprint may be allowed as conditional uses.
For structures damaged or destroyed by casualty, restoration or replacement “in kind” is permitted under certain conditions, especially if the permit process starts within 18 months of the damage. Replacement of nonconforming structures in aquatic shoreline areas must comply with material requirements (WCC 23.90.040(B)(5)), with specific provisions for piling replacement.
Intentional abandonment of a nonagricultural nonconforming use for 12 months or more means any future use must conform to the program. Changing a nonconforming use to a different nonconforming use requires a conditional use permit with specific findings, ensuring no reasonable conforming alternative exists, the new use is at least as consistent with the Act and program, and adverse impacts are minimized.
Chapter 23.50 also addresses nonconforming lots – those with limited building area due to shoreline setbacks and buffers. New single-family development on such lots may be allowed without a variance under specific criteria, particularly for lots created before August 8, 2008, focusing on mitigation, minimal environmental damage, and no waterward development. Redevelopment of nonconforming rights-of-way for public trails and shoreline access may also be permitted if consistent with program provisions, especially concerning public access and no net loss of ecological functions.
Conclusion: Chapter 23.50 as a Cornerstone of Shoreline Management
Chapter 23.50 of the Whatcom County Shoreline Management Program serves as a foundational element, defining the program’s applicability, its interaction with other regulations, and crucially, the management of nonconforming uses. Understanding this chapter is essential for navigating shoreline development in Whatcom County, ensuring compliance, and contributing to the sustainable management of these valuable resources. By clearly outlining who is affected, how the program interrelates with other rules, and how existing nonconformities are addressed, Chapter 23.50 provides a framework for responsible shoreline stewardship.
