Chapter 17.68 THE LAND USE PERMIT PROCESS – FRAMEWORK FOR DECISIONMAKING

Chapter 17.68
THE LAND USE PERMIT PROCESS – FRAMEWORK FOR DECISIONMAKING

Sections:

17.68.010 Intent and scope.

17.68.020 Definition of terms used in this chapter.

17.68.030 Land use decision framework.

17.68.040 Land use permits required.

17.68.050 Applications – General.

17.68.060 Review criteria for decisions.

17.68.070 Notice requirements, type and content of notice – General.

17.68.080 Notice of application requirements and comment period.

17.68.090 Public hearing requirements.

17.68.100 Notice of decision requirements and content of notice.

17.68.110 Standards to ensure performance and compliance with conditions.

17.68.120 Expiration of land use approvals.

17.68.130 Conditional use applications, when required, submittal requirements, review criteria and conditions of approval.

17.68.140 Variance applications, when required, submittal requirements, review criteria and conditions of approval.

17.68.150 Plan review, when required, application submittal requirements, review criteria and conditions of approval.

17.68.155 Transfer or purchase of development rights.

17.68.160 Reclassification of property including rezone and contract rezone and zoning ordinance text amendments, initiation of amendments, review criteria and conditions of approval.

17.68.010 Intent and scope.

A. The purpose of the land use permit process is to promote informed public participation in discretionary land use decisions, eliminate redundancy in the application submittal process, and minimize delays and expense in appeals of land use decisions.

B. Increasing opportunities for public comment and getting the concerned public involved early in the process are the primary goals. This makes it feasible for the project developer to be responsive to the issues raised and will result in better projects, among other benefits.

C. Each proposed development project shall obtain a land use permit as required by BMC 17.68.040, which shall contain all the components required for the project. The broadest applicable public notice shall apply.

D. This chapter consolidates all land use decisions and constitutes the permit process for BMC Title 17, Zoning, BMC Title 16, Subdivisions, chapter 15.12 BMC, State Environmental Policy Act Guidelines, chapter 15.13 BMC, Methods to Mitigate Development Impacts, chapter 15.15 BMC, Critical Areas, and chapter 15.16 BMC, Requirements for Building and Land Use Permit Applications. All permit components required by this chapter are applied for and reviewed concurrently, except for variances, lot boundary adjustments and short subdivisions that may be decided prior to other land use elements.

E. The Zoning Code, BMC Title 17, other relevant chapters of the Burlington Municipal Code relating to utilities, transportation, sewers, and any other infrastructure elements, the adopted comprehensive plan and related technical plans as they may be further amended, identify the types of land use, specify residential density, and provide for funding of public facilities to form the foundation for project review. The land use permit process and the consideration of consistency start from this point and these land use planning decisions will not be re-analyzed in making a permit decision.

F. Through the consolidated land use permit process specified in this chapter, the city will determine whether existing requirements, including the applicable regulations or plans, adequately analyze and address a project’s environmental impacts, avoiding the need for additional studies and mitigation where existing regulations have adequately addressed a proposed project’s probable specific adverse environmental impacts.

G. Consistency of a proposed project with the applicable development regulations or plans is determined by considering four factors as follows:

1. Type of land use allowed;

2. Level of development allowed, such as units per acre or other measures of density;

3. Infrastructure, such as the adequacy of public facilities and services to serve the proposed project;

4. The character of the proposed development, such as compliance with specific development standards.

For the purpose of this section, the term “consistency” shall include all terms used in this chapter and the Growth Management Act including but not limited to compliance, conformity and consistency. Nothing in this section requires documentation, dictates the process for considering consistency or limits the city from asking more specific or related questions with respect to any of the four categories listed in subsection (G)(1) through (G)(4) above.

H. Applicable regulations or plans shall be determinative of the:

1. Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as business parks, cluster subdivisions, and conditional uses, if the criteria for their approval have been satisfied;

2. Density of residential development; and

3. Availability and adequacy of public facilities identified in the comprehensive plan, and the plan provides for construction and/or funding of these facilities as part of a development proposal.

During project review the city shall not re-examine any alternatives to or hear appeals on the items identified in subsection (H), except for issues of code interpretation. Any interested person may file a written request for a code interpretation. The process for code interpretation is provided in BMC 17.03.020.

I. Nothing in this section limits the authority of the city to approve, condition or deny a project as provided in the applicable development regulations and policies. Project review

shall be used to identify specific project design and conditions relating to the character of the development, such as the details of site plans, curb cuts, drainage swales, payment of voluntary mitigation or impact fees, or other measures to mitigate a proposal’s probable adverse environmental impacts, if applicable.

J. Any public meeting or required open record hearing may be combined with any public meeting or open record hearing that may be held on the project by another local, state, regional, federal, or other agency, subject to the public notification requirements of this chapter. (Ord. 1318 § 1, 1996; Ord. 1221 § 10, 1992).

17.68.020 Definition of terms used in this chapter.

A. Use – Establish or Change. This is the decision that a use is permitted in the zone and that it meets the development standards, such as setbacks, parking. It is not a discretionary decision, but is often combined with one.

B. Plan Review. Plan review at a public meeting by the planning commission is required for most new construction projects to assure that all land use permits and approvals comply with the use, development and all other standards of this title and related land use standards, rules, policies and procedures. Plan review decisions may be appealed to the city council pursuant to BMC 17.76.070.

C. Environmental Review. See Chapters 15.12 and 15.13 BMC for detailed requirements. This includes the determination of significance (DS), which requires preparation of a detailed environmental impact statement (Draft and Final EIS) for large projects and other projects with significant adverse environmental impacts. Environmental review also includes the determination of nonsignificance (DNS). This determination often includes conditions to mitigate the adverse impacts of a project, in which case it is a mitigated determination of nonsignificance (MDNS). The threshold for requiring environmental review is the construction of more than four dwelling units, grading more than 500 cubic yards, the construction of more than 4,000 square feet of commercial space, construction of a parking lot for more than 20 cars, or as further defined by WAC 197-11-800 (Washington Administrative Code regulations) and Chapter 15.12 BMC.

D. Subdivision Decisions. There are four types of subdivision decisions which are further defined in BMC Title 16:

1. Lot Boundary Adjustment. Moves existing property lines; no new lots created.

2. Binding Site Plan. Used for commercial and industrial properties that are leased or sold, often frequently moving property lines as tenants demand.

3. Short Subdivision. Process to create or redivide land into four or fewer lots. Review elements include location, access, configuration, and availability of utilities. Review by the planning commission is required.

4. Long Subdivision. Process to create any number of lots. Substantial public improvements are typically required, such as construction of streets, sewers, and sidewalks to provide safe walking areas for children attending school. One open public hearing is required before the planning commission who makes a recommendation to the city council, and a public meeting is required before the city council.

E. Zoning Exceptions and Changes.

1. Conditional Use. Allows a use to be located in a zone where it is not normally permitted, if certain conditions can be met. One open public hearing is required before the planning commission who makes a recommendation to the city council, and one public meeting is required before the city council; provided, that a closed record appeal may be held in the event that a request for further consideration is filed.

2. Variance. Allows relief from the dimensional standards of the zoning code, such as front, side or rear setbacks. It requires an open public hearing before the board of adjustment. Variances may also be sought from the noise ordinance and the floodplain requirements of the critical areas ordinance.

3. Rezone Including Contract Rezone. This is a zoning map amendment. It changes the list of permitted uses on the site as well as the height, setback and other limitations, such as changing from residential to commercial or industrial. One open public hearing is required before the planning commission who makes a recommendation to the city council, and one public meeting is required before the city council; provided, that a closed record appeal may be held in the event that a request for further consideration is filed. If there are conditions required by the city council, a contract shall be executed as further provided in this chapter.

4. Zoning Text Amendment. This is a change to the text of the code, such as adding a use to the list of uses permitted in a zone. One open public hearing is required before the planning commission who makes a recommendation to the city council, and one public meeting is required before the city council.

F. Comprehensive Plan. A generalized coordinated land use policy statement of the city that guides the future physical development of the community and assists in land use decisions, capital improvement planning and enactment of development regulations. One open public hearing is required before the planning commission who makes a recommendation to the city council, who may adopt by resolution the plan or any part of the plan.

G. Permit Process Terminology.

1. “Closed record appeal” means an administrative appeal on the record to the city council, following an open record hearing on a project permit application. When the appeal is on the record, the city council’s review shall be based on the record, with no or limited new evidence or information allowed to be submitted and only oral or written appeal argument based on the record. If the city council examines the record and determines that a factual error exists or that essential information is missing from the record, the city council may, except in the case of a preliminary plat:

a. Remand the request and record to the director for further consideration and report; or

b. Remand the request to the planning commission and direct the planning commission to conduct another hearing, limited to the consideration of perceived factual error or new information and to reconsider the recommendation; or

c. Open the record to correct the factual error or receive the new information. The city council shall conduct a hearing on the new or corrected information. The city council may hear testimony from those who testified before the planning commission, and may accept written or oral argument based on the record. Notice of the hearing shall be mailed at least seven days prior to the hearing to the parties of record.

In the case of a preliminary plat, the recommendation shall be submitted to the city council not later than 14 days following action by the planning commission. Upon receipt of the recommendation on any preliminary plat, the city council shall at its next public meeting set the date for the public meeting where it shall consider the recommendations of the planning commission and may adopt or reject the recommendations of the planning commission based on the record established at the planning commission public hearing. If, after considering the matter at a public meeting, the city council deems a change in the planning commission’s recommendation is necessary, the city council shall adopt its own recommendations and approve or disapprove the preliminary plat. Every decision or recommendation made under this section shall be in writing and shall include findings of fact and conclusions to support the decision or recommendation.

2. “Open record hearing” means a hearing, conducted by the planning commission, board of adjustment or city council, that creates the city’s record through testimony and submission of evidence and information. An open record hearing may be held prior to a decision on a project permit, known as an “open record predecision hearing.” An open record hearing may be held on an appeal, to be known as an “open record appeal hearing,” if no open record predecision hearing has been held on the project permit application.

3. “Land use permit” or “land use permit application” includes but is not limited to building permits, subdivision decisions, conditional uses, plan reviews, site-specific rezones, but excludes the adoption or amendment of a comprehensive plan or development regulations.

4. “Public meeting” means an informal meeting, hearing, workshop or other public gathering of people to obtain comments on a proposed land use permit before the city’s decision. A public meeting may include, but is not limited to, a design review board or planning commission meeting or a neighborhood meeting. A public meeting does not include an open record hearing. The proceedings at a public meeting may be recorded and a report or recommendation may be included in the land use permit application file. (Ord. 1318 § 2, 1996; Ord. 1221 § 10, 1992).

17.68.030 Land use decision framework.

A. Land use decisions are classified into four categories based on the amount of discretion and level of impact associated with each decision. Procedures for the four different categories are distinguished according to who makes the decision, the type and amount of public notice required, and whether appeal opportunities are provided. Land use decisions are consolidated as components of the land use permit.

B. Type I decisions are nonappealable decisions made by the director which require the exercise of little or no discretion. Type I decisions include the following components:

Lot Boundary Adjustment

Binding Site Plan

Single-Family Zoning Plan Review

Determination of Significance (Environmental Impact Statement required)

Uses Permitted Outright

Sign Permits Meeting Standards

Temporary Uses for up to Two Weeks

C. Type II decisions are discretionary decisions that involve two review steps. The first step is a report and recommendation or decision by the director, with a final decision made by one of three decisionmaking bodies, city council, board of adjustment, or planning commission. The final decision-making body for each decision is listed as follows:

1. Planning Commission:

Temporary Uses for more than two weeks

Shoreline Substantial Development Permits

2. Board of Adjustment:

Zoning Variances

Floodplain Variance and Appeals

Noise Standards Variance

Sign Variance

Administrative Rules

Accessory Dwelling Unit

3. City Council:

Environmental (SEPA) appeal of the decision to grant a permit based on environmental review, with or without conditions

Plan review appeal of the decision to grant a permit based on the planning commission’s plan review criteria with or without conditions

Short subdivision appeal of the decision to grant a permit based on the short subdivision review criteria, with or without conditions

D. Type III decisions are quasi-judicial decisions made by the city council pursuant to existing legislative standards and based on the planning commission’s record, open record public hearing and recommendation, and a public meeting or closed record appeal by the city council.

Type III decisions include the following components:

Full Subdivisions (preliminary plat)

Zoning Map Amendments (Rezone and Contract Rezone)

Conditional Use Permits

Essential Public Facility Conditional Use Permit

E. Type IV decisions are quasi-judicial decisions made by the council in its capacity to establish policy and manage public lands, pursuant to existing legislative standards and based on the planning commission’s record, public meeting and recommendation, and an open record public hearing by the city council.

Zoning Text Amendments

Comprehensive Plan Adoption and Amendment

Citywide Rezoning to Implement Comprehensive Plan

F. For projects requiring more than one type of decision, all decisions must be made prior to issuance of a land use permit, except that a variance, lot boundary adjustment or short subdivision may be decided prior to other land use elements. All conditions established by the decision-making bodies in their decisions shall be incorporated in any subsequently issued land use permit or construction permit for the project.

G. Land use permits requiring only Type I decisions are categorically exempt from the State Environmental Policy Act (SEPA) and do not require environmental review. All land use permits requiring environmental review include a Type II decision and may include a Type I decision. For these projects, SEPA review procedures established in chapter 15.12 BMC are supplemental to the procedures set forth in this chapter. (Ord. 1670 § 6, 2009; Ord. 1318 § 3, 1996; Ord. 1221 § 10, 1992).

17.68.040 Land use permits required.

A. A land use permit shall be required to establish or change use of land or a structure and to expand the existing use of land or a structure. The issuance of a building permit shall constitute the land use permit for Type I decisions.

B. Type I, II and III decisions are components of land use permits. Land use permits shall be required for all projects requiring one or more of these decisions.

C. An application shall be deemed abandoned and void if the applicant has failed without reasonable justification to supply all required information or data within 60 days of a written request for it; provided that the director may extend the period for such submission if it is determined that the delay was not the fault of the applicant. (Ord. 1221 § 10, 1992).

17.68.050 Applications – General.

A. Applications for land use permits shall be made by the property owner, lessee, contract purchaser, or a city agency, or by an authorized agent thereof.

B. All applications for land use permits shall be made to the director on a form provided by the department.

C. Applications shall be accompanied by payment of the applicable filing fees, if any, as established in the current fee schedule of the city.

D. All land use permit decisions necessary for a project shall be included in the same application; provided, that at the applicant’s discretion, a separate land use permit application may be filed for a variance, lot boundary adjustment and/or short subdivision approval if no environmental review pursuant to chapter 15.12 BMC, State Environmental Policy Act (SEPA) Guidelines, is required for the proposed project, or if SEPA review is required only because the project is located in an environmentally sensitive area or over water.

E. All applications shall contain the submittal information required by the applicable sections of this chapter and related sections of BMC Title 17, Zoning Code, BMC Title 16, Subdivisions, chapter 15.12 BMC, State Environmental Policy Act Guidelines, chapter 15.13 BMC, Methods to Mitigate Development Impacts, and chapter 15.15 BMC, Critical Areas. The director may require additional material from the applicant such as maps, text, or models when the director determines that such material is needed to accurately assess the proposed project. See also BMC 15.16.020 for the requirement for a determination of completeness to the applicant.

F. Time Limits.

1. See BMC 15.16.020 for time limits on the determination of completeness to the applicant.

2. Except as otherwise provided in subsection (F)(3) of this section, the city shall issue its notice of final decision on a land use permit application within 120 days after the city notifies the applicant that the application is complete (determination of completeness). The following time periods shall be excluded:

a. Any period during which the applicant has been requested by the city to correct plans, perform studies, or provide additional required information. The period shall be calculated from the date the city notifies the applicant of the need for additional information until the earlier of the date the city determines whether the additional information satisfies the request for information or 14 days after the date the information has been provided to the local government;

b. If the city determines that the information submitted by the applicant under subsection (F)(2)(a) of this section is insufficient, it shall notify the applicant of the deficiencies and the procedures under subsection (F)(2)(a) of this section shall apply as if a new request for studies had been made;

c. Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW and Chapter 15.12 BMC, subject to an agreement between the city and the applicant in writing to a time period for completion of an environmental impact statement;

d. Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal is allowed. The time period for and open record appeal hearing shall not exceed 90 days and 60 days for a closed record appeal. The parties to an appeal may agree to extend these time periods;

e. Any extension of time mutually agreed upon by the applicant and the local government.

3. The time limits established by subsections (F)(1) and (F)(2) of this section do not apply if a project permit application:

a. Requires an amendment to the comprehensive plan or development regulation;

b. Requires approval of the siting of an essential public facility;

c. Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete under BMC 15.16.020.

4. If the local government is unable to issue its final decision within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of the reasons why the time limits have not been met and an estimated date for issuance of the notice of final decision.

G. The applicant or authorized agent shall attend all public meetings and/or public hearings or the matter shall be continued until the applicant or authorized agent is available to attend. A single person or entity shall be designated by the applicant to receive determinations and notices required by this chapter. (Ord. 1318 § 4, 1996; Ord. 1221 § 10, 1992).

17.68.060 Review criteria for decisions.

A. General. Compliance with all applicable codes, ordinances, standards and procedures is required prior to authorization of compliance with the zoning code. This includes but is not limited to Subdivision, Critical Areas, Interim Controls, Voluntary Mitigation Agreements pursuant to SEPA, in addition to this code.

B. Plan Review. See BMC 17.68.150.

C. Conditional Use Permit. See BMC 17.68.130.

D. Variances. See BMC 17.68.140 for Zoning Variance, chapter 17.58 BMC for Noise Variances, chapter 15.15 BMC for Flood Plain.

E. Subdivisions. See Title 16.

F. Environmental (SEPA – State Environmental Policy Act). See chapters 15.12 and 15.13 BMC. (Ord. 1221 § 10, 1992).

17.68.070 Notice requirements, type and content of notice – General.

A. Process for Notification. If public notice is required, notice shall be in accordance with subsection (D) of this section. The general intent is to give the broadest notice on application (notice of application). When notice of application is required, it shall be given to the public and city departments and agencies with jurisdiction as provided in this section. If the city has made a determination of significance under chapter 15.12 BMC concurrently with the notice of application, the notice of application shall be combined with the determination of significance and scoping. Nothing in this section prevents a determination of significance and scoping notice from being issued prior to the notice of application. Next step is notice of public meeting and/or notice of public hearing, whichever applies to the project. This is followed by notice of decision/opportunity for appeal or opportunity to request further consideration.

B. Types of Public Notice. The following is a description of the types of notice utilized as further provided in this chapter.

1. Post a large sign on the site. Specific standards shall be set by administrative rule. The sign shall be a four-foot by four-foot half sheet of plywood. There shall be precise specifications about what goes on the sign, and they shall all be of a standard design except for the specifics about the project. These shall be furnished by the applicant. The processing of the application will not begin until the large sign is in place. The large sign shall be located so as to be clearly visible from the adjacent street or sidewalk, and shall remain posted until final city action on the application has been completed. For sites that are not highly visible, location of the large sign shall be approved by the director or alternative means of notification provided to include mailed notice. Projects limited to interior remodeling are exempt from the large sign requirement. Large sign standards shall be adopted by administrative rule.

2. Publication of a notice in the official newspaper or newspaper of general circulation. The legal publication of notice shall be easily identifiable, language should be simple and descriptive, not bureaucratic.

3. Individual mailed notice to owners and occupants in a 600-foot radius of the site. The notice shall provide a brief description of the proposed project and its location and identify any opportunities for comment, appeal, public hearings, and the means for obtaining additional information.

4. Monthly bulletin providing update on all projects. Posted in City Hall, the library, mailed out to neighborhood planning committees and others. This shall include specific projects, proposed code changes, significant dates, describing opportunities for comment or appeal.

5. Public access channel if available on cable TV; public service broadcasts on local radio station. This is used for major projects and citywide issues.

6. Notice to applicant and to persons who have expressed an interest in the project. These are the parties of record who are apprised of each action taken on a proposed project.

7. Open meeting notice. This shall include posting in City Hall and the library and mailing to the news media and interested persons.

8. Mailed notice to adjacent property owners.

D. Types of Notice Required for Each Land Use Action.

1. Use, establish or change – None required.

2. Plan review by planning commission.

Notice of application –

Monthly bulletin

Open meeting notice

3. Establish accessory dwelling unit.

Mailed notice to adjacent property owners

4. Environmental (SEPA) review.

a. Determination of nonsignificance and mitigated determination of nonsignificance –

Notice of application –

Post a large sign on site

Monthly bulletin

Mailed notice to adjacent property owners

Notice of decision – Appeal opportunity –

Publish in the city official newspaper

Monthly bulletin

Notice to parties of record

b. Determination of significance, scoping notice, draft and final environmental impact statement –

Notice of application –

Post a large sign on site

Monthly bulletin

Mailed notice to adjacent property owners

Determination of significance – none required

Scoping notice –

Publication in official newspaper and newspaper of general circulation

Monthly bulletin

Mailed notice

Notice of draft environmental impact statement availability and public hearing –

Publication in official newspaper

Monthly bulletin

Mailed notice

Open meeting notice

Public access channel

Final environmental impact statement –

Publication in official newspaper

Monthly bulletin

Notice to parties of record

5. Lot boundary adjustment – None required.

6. Binding site plan – None required.

7. Short subdivision – Mailed notice to adjacent property owners.

8. Full subdivision.

Notice of application –

Post large sign

Publication in official newspaper

Mailed notice

Monthly bulletin

Notice of public hearings –

Publication in official newspaper

Mailed notice

Monthly bulletin

Open meeting notice

Notice of decision –

Notice to parties of record

9. Conditional use – Notice of application and public hearing may be combined for a minor conditional use permit such as a drive-in use.

Notice of application –

Publication in official newspaper

Mailed notice

Monthly bulletin

Notice of public hearings –

Publication in official newspaper

Mailed notice

Monthly bulletin

Open meeting notice

Notice of decision –

Notice to parties of record

10. Variance, including zoning, flood and noise – Notice of application and public hearing may be combined for a variance.

Notice of application –

Publication in official newspaper

Mailed notice

Monthly bulletin

Notice of public hearing –

Publication newspaper

Mailed notice

Notice of decision –

Notice to parties of record

11. Rezone and contract rezone.

Notice of application –

Publication in official newspaper

Mailed notice

Monthly bulletin

Notice of public hearing(s) –

Publication in official newspaper

Mailed notice

Monthly bulletin

Open meeting notice

Notice to parties of record

Notice of decision –

Notice to parties of record

12. Zoning text amendment.

Notice of public hearing(s) –

Publication in official newspaper

Monthly bulletin

Open meeting notice

Notice to parties of record

13. Comprehensive plan adoption and amendment.

Notice of public hearing(s) –

Publication in official newspaper

Monthly bulletin

Open meeting notice

Notice to parties of record

Public access channel

E. Contents of Notice.

1. Notice of application shall include:

a. The notice shall provide a description of the proposed project action, identify the nature and location of the project;

b. The date of application, the date of the notice of completeness (BMC 15.16.020) for the application, the date of the notice of application;

c. If applicable, a list of any studies requested, identify any permits not included in the application to the extent known by the city, identify existing environmental documents that evaluate the proposed project, and the location where the application and any studies can be reviewed;

d. A statement that persons who desire to submit comments on the application or who request notification of the decision may so inform the director in writing within the comment period specified in this notice, except that all projects that require mailed notice include a mailing to property owners within 600 feet of the site who receive notice of an opportunity to participate in any hearings. The city may accept public comments any time prior to the closing of the record of an open record predecision hearing, if any, or, if no open record predecision hearing is provided, prior to the decision on the project permit;

e. The notice shall also state any appeal rights;

f. Except for the large sign requirement, each notice shall also include a list of the land use decisions sought. The director shall specify detailed requirements for large signs;

g. The notice shall state the date, time, place and type of hearing, if applicable, and scheduled at the date of notice of the application; and

h. A statement of the preliminary determination, if one has been made at the time of notice of those development regulations that will be used for project mitigation and of consistency as provided in BMC 17.68.010; and

i. Any other information deemed appropriate by the director.

2. Notice of open public hearing shall include elements (E)(1)(a), (e), (g), (h) and (i) above.

F. When a land use permit includes more than one decision component, notice requirements shall be consolidated and the broadest applicable notice requirements imposed. (Ord. 1318 § 5, 1996; Ord. 1252 § 1, 1994; Ord. 1221 § 10, 1992).

17.68.080 Notice of application requirements and comment period.

A. Notice of Application. When a land use permit application requiring a Type II or III decision is submitted, the director shall provide notice of application and an opportunity for public comment as described in this chapter, within 14 days after the determination of completeness as provided in BMC 15.16.020. No notice or public comment period shall be required for Type I decisions.

B. Comment Period. The director shall provide a 14-day public comment period prior to making a threshold determination of nonsignificance (DNS) or issuing a decision or recommendation on a proposed Type II or III land use action; provided that the comment period shall be extended to 30 days if a written request for extension is submitted within the initial 14-day comment period. The comment period shall begin on the date notice is published in the official newspaper. Comments shall be filed with the director by 5:00 p.m, of the last day of the comment period. When the last day of the comment period is a Saturday, Sunday or federal or city holiday, the comment period shall run until 5:00 p.m. of the next business day. (Ord. 1396 § 59, 1999; Ord. 1318 § 6, 1996; Ord. 1221 § 10, 1992).

17.68.090 Public hearing requirements.

Public hearings are required as listed below for the following land use permit components, prior to a recommendation, final environmental impact statement or land use decision being made. Notice of hearing shall be provided no later than 14 days prior to the hearing. Procedures for the city council shall be adopted by administrative rule.

A. Draft Environmental Impact Statement. An open public hearing is required before the director to take comments for inclusion in the final environmental impact statement.

B. Conditional Use Permit. One open public hearing is required, before the planning commission and one public meeting before the city council; provided, that a closed record appeal may be held in the event that a request for further consideration is filed:

1. Any person substantially affected by or interested in the planning commission’s recommendation regarding a conditional use permit decision may submit in writing to the city council a request for further consideration, which shall be filed with the city council by 5:00 p.m. of the fourteenth calendar day following the date of mailing of the planning commission’s recommendation. When the last day of the request period so computed is a Saturday, Sunday or federal or city holiday, the request period shall run until 5:00 p.m. on the next business day. The request shall clearly identify specific objections to the planning commission’s recommendation, facts missing from the record, and the relief sought.

2. After city council receipt of the request for further consideration, the city council shall mail a copy of the request for further consideration and instructions for those responding to the request to those individuals who were provided written notice of the planning commission’s action, the parties of record. Such notice shall be mailed at least seven days prior to the date of the city council’s closed public hearing to consider the request for further consideration.

3. If there is no request for further consideration, city council action shall be based on the record established by the planning commission. The city council may allow oral or written arguments based on the record.

4. If the city council examines the record and determines that a factual error exists or that essential information is missing from the record, the city council may:

a. Remand the request and record to the director for further consideration and report; or

C. Zoning, Flood and Noise Variance. An open public hearing is required before the board of adjustment.

D. Full Subdivision. See BMC Title 16 for detailed requirements. One open public hearing is required, before the planning commission. In the case of a preliminary plat, the recommendation shall be submitted to the city council not later than 14 days following action by the planning commission. Upon receipt of the recommendation on any preliminary plat, the city council shall at its next public meeting set the date for the public meeting where it shall consider the recommendations of the planning commission and may adopt or reject the recommendations of the planning commission based on the record established at the planning commission public hearing. If, after considering the matter at a public meeting, the city council deems a change in the planning commission’s recommendation approving or disapproving the preliminary plat is necessary, the city council shall adopt its own recommendations and approve or disapprove the preliminary plat. Every decision or recommendation made under this section shall be in writing and shall include findings of fact and conclusions to support the decision or recommendation.

E. Rezone and Contract Rezone. An open public hearing is required before the planning commission and one public meeting before the city council, provided that a closed record appeal may be held in the event that a request for further consideration is filed:

1. Any person substantially affected by or interested in the planning commission’s recommendation regarding a rezone or contract rezone decision may submit in writing to the city council a request for further consideration, which shall be filed with the city council by 5:00 p.m. of the fourteenth calendar day following the date of mailing of the planning commission’s recommendation. When the last day of the request period so computed is a Saturday, Sunday or federal or city holiday, the request period shall run until 5:00 p.m. on the next business day. The request shall clearly identify specific objections to the planning commission’s recommendation, facts missing from the record, and the relief sought.

4. If the city council examines the record and determines that a factual error exists or that essential information is missing from the record, the city council may:

a. Remand the request and record to the director for further consideration and report; or

F. Zoning Text Amendment. An open public hearing is required before the planning commission and a public meeting is required before the city council.

G. Comprehensive Plan Adoption and Amendment. A public hearing is required before the planning commission. The council may adopt by resolution the plan or any part of the plan. (Ord. 1396 § 60, 1999; Ord. 1318 § 7, 1996; Ord. 1221 § 10, 1992).

17.68.100 Notice of decision requirements and content of notice.

A. The council shall adopt written findings and conclusions in support of its decision on subdivisions, rezones, and conditional use permits. The minutes of the city council meeting shall constitute the findings and conclusions except in contested cases. A copy of the council’s findings, conclusions and decision shall be sent to all parties of record. The process for judicial review shall be subject to the requirements of the Land Use Petition Act, as codified in RCW Title 90. The transmittal shall include official notice of the time and place for seeking judicial review. The director shall be bound by and incorporate the terms and conditions of the council’s decision in permits issued to the applicant or on approved plans.

B. The planning commission minutes shall constitute the written findings and conclusions in support of its recommendations and decisions on Type II, III and IV land use permits and recommendations.

C. The board of adjustment minutes shall constitute the written findings and conclusions in support of its decisions on Type II land use permits. (Ord. 1318 § 8, 1996; Ord. 1221 § 10, 1992).

17.68.110 Standards to ensure performance and compliance with conditions.

Whenever a new development project is approved and substantial public and private improvements are required, the city shall use the following methods to ensure performance and compliance with the requirements of the land use permit:

A. Binding agreement to perform at a later date.

B. Performance bond or other security for defined time period with a 15 percent contingency fund.

C. Cash deposit or interest-bearing savings account, or other acceptable instrument of credit with a 15 percent contingency fund.

D. Covenants and/or easements that are filed with the Skagit County auditor’s real property records.

E. Conditional building permits with specified compliance requirements linked to called inspections.

F. Preannexation agreements.

G. Agreement to participate in a local improvement district or other public improvement project at a later date.

H. Development agreements as provided in RCW 36.70B.170. (Ord. 1666 § 2, 2009; Ord. 1340 § 7, 1997; Ord. 1221 § 10, 1992).

17.68.120 Expiration of land use approvals.

A. Type I and II land use permits, contract rezones, and conditional use permits shall expire two years from the date of issuance. An extension of one year may be granted by the director upon a showing of substantial progress towards completion. Sites of phased projects shall be maintained in good condition, including seeding any bare ground for erosion and dust control, mowing, removal of any junk, litter or abandoned vehicles, and compliance with the nuisance and zoning codes.

B. Subdivisions shall be regulated by BMC Title 16. (Ord. 1345 § 1, 1997; Ord. 1221 § 10, 1992).

17.68.130 Conditional use applications, when required, submittal requirements, review criteria and conditions of approval.

A. A conditional use permit is required when the use proposed is listed as requiring a conditional use in the regulations for the zone in which it is located. Any project requiring a plan review for determination of the proper classification of a land use not listed requires a conditional use when the planning commission determines the need for a public hearing and conditional use review of the application.

B. An application shall be required for approval of a conditional use permit which shall include a site plan that illustrates the following:

1. Vicinity map;

2. Name, address, phone number of property owner;

3. Name, address, phone number of engineer or agent;

4. Boundaries and dimensions of property;

5. Adjacent public streets;

6. Easements, existing and proposed;

7. Location and size of all existing and proposed utilities;

8. Location of buildings, including setbacks;

9. Location and layout of off-street parking;

10. Location and height of fences;

11. Location and size of signs;

12. Landscape detail;

13. Indication of height of buildings.

C. The site plan shall be properly dimensioned and drawn to scale.

D. The site plan shall be adopted and made part of the permit. Subsequent building permits and construction activity shall be in accord with the approved site plan. Adjustments to the site plan may be approved as follows:

1. Minor Adjustments. Minor adjustments may be made and approved by the director. Minor adjustments are those which may affect the precise dimensions or siting of buildings, but which do not affect the basic character or arrangement of buildings approved, nor the development coverage of the development or the open space requirements. Such dimensional adjustments shall not vary more than 10 percent from the original.

2. Major Adjustments. Major adjustments are those when determined by the director, substantially change the basic design, coverage, open space or other requirements of the permit. When the director determines that a change constitutes a major adjustment, no building or other permit shall be issued without prior review and approval by the planning commission and city council of such adjustment.

E. Review Criteria. Conditional use permits may only be approved if findings of fact are drawn to support the following:

1. The use will have no more adverse effect on the health, safety or comfort of persons living or working in the area, and will be no more injurious, economically or otherwise to property or improvements in the surrounding area, than would any use generally permitted in the district. Among matters to be considered are traffic flow and control, access to and circulation within the property, off-street parking and loading, refuse and service areas, utilities, screening and buffering, signs, yards and other open spaces, height, bulk and location of structures, location of proposed open space uses, hours and manner of operation, and noise, lights, dust, odor, fumes and vibration.

2. The proposal is in accordance with the goals, policies and objectives of the comprehensive plan.

3. The proposal complies with all the requirements of this title.

4. The proposal can be constructed and maintained so as to be harmonious and appropriate in design, character, and appearance with the existing or intended character of the general vicinity and provides a high quality of development.

5. The proposal will not adversely affect the public infrastructure.

F. Conditions of Approval. In order to mitigate any adverse impact or support a finding of fact associated with the proposal, conditions may be imposed which could increase requirements in the standards, criteria, or regulations of this title or other city legislation or adopted policies.

G. A variance application may be processed as a component of a land use application that includes a conditional use application, as part of a consolidated land use permit application. A consolidated open public hearing shall be held before the planning commission with the conditional use application. (Ord. 1363 § 1, 1998; Ord. 1221 § 10, 1992).

17.68.140 Variance applications, when required, submittal requirements, review criteria and conditions of approval.

A. A variance is required when, because of special circumstances applicable to subject property because of size, shape, topography, location or surroundings, the strict application of this title is found to deprive subject property of rights and privileges enjoyed by other properties in the same zone and vicinity, the board of adjustment shall have the authority to grant a variance from the requirements of the title, after considering the matter at a public hearing; provided, that the planning commission will hear variance applications that are consolidated with a conditional use application.

B. Application. A site plan shall be required with each application for a variance. The site plan shall be accurately drawn using an appropriate scale and shall illustrate the following:

1. Adjacent streets and alleys;

2. Boundaries and dimensions of site and setbacks;

3. Location and dimensions of buildings;

4. Location and dimensions of parking areas;

5. Location and dimensions of feature needing variance.

C. Review Criteria. Subject to conditions, safeguards and procedures provided by this title, the board of adjustment may be empowered to hear and decide applications for variances from the terms of this title provided the board of adjustment may approve a variance only if the request conforms to all of the following criteria. The board must enter findings of fact and conclusions which support the following criteria and any conditions:

1. That there are unique physical conditions including narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardships arise in complying with the provisions of this title.

2. That, because of such physical conditions, the development of the lot in strict conformity with the provisions of this title will not allow a reasonable and harmonious use of such lot.

3. That the variance, if granted, will not alter the character of the neighborhood, or be detrimental to surrounding properties in which the property is located.

4. That the special circumstances and conditions associated with the variance are not a result of the actions of the applicant or previous owners.

5. Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district.

6. The approval of the variance will be consistent with the purpose of this title and the zoning district in which the property is located.

7. The variance will not allow an increase in the number of dwelling units permitted by the zoning district.

8. The authorization of such variance will not adversely affect the comprehensive plan.

9. The variance shall not allow a land use which is not permitted under the zoning district in which the property is located.

10. The variance shall not change any regulations or conditions established by conditional use permits or contract rezones.

D. Conditions of Approval. In authorization of a variance, the board of adjustment may attach thereto such conditions regarding the location, character and other features of the proposed structure or use as may be deemed necessary to carry out the spirit and purpose of this title and in the public interest.

E. Floodplain variance and appeals pursuant to chapter 15.15 BMC shall be heard by the board of adjustment, based on the criteria established in chapter 15.15 BMC.

F. Noise ordinance variance requests pursuant to BMC 17.58.120 shall be heard by the board of adjustment, based on the criteria established in BMC 17.58.120. (Ord. 1363 § 2, 1998; Ord. 1221 § 10, 1992).

17.68.150 Plan review, when required, application submittal requirements, review criteria and conditions of approval.

A. Plan review is required for the following:

1. Parking and loading area plans for all developments except single-family and duplex residential units and the addition of up to five parking spaces in an existing development.

2. Landscaping plans.

3. Determination of proper classifications of land uses not included in the lists of permitted or conditional uses for the zone.

4. Temporary conforming and nonconforming land uses and buildings for more than two weeks and not exceeding one year.

5. Review of new development proposals for consistency with the city of Burlington Design Guidelines as may be amended and updated over time to reflect the city’s comprehensive plan and vision for the future. The review shall not include single-family and duplex dwellings on existing lots of record or short subdivisions.

B. Application submittal requirements include the following:

1. Site plan drawn to an appropriate scale.

2. Boundary lines and dimensions for the property and all proposed lot lines. Future building locations in phased developments shall be indicated.

3. Natural features of the site, including existing significant trees, wetlands areas and special flood risk areas.

4. Location, dimensions and names of all existing or platted streets or alleys, easements, railroad rights-of-way, on or adjacent to the property.

5. Location and dimensions of all existing structures, improvements or utilities to remain, and structures to be removed.

6. Approximate location and size of storm water retention or detention facilities and storm drains.

7. Location and dimensions of all proposed structures and parking lots, to include parking and loading areas, pedestrian circulation and related access ways. Individual parking spaces shall be shown.

8. Service areas for waste disposal, recycling, loading and delivery and location of mail boxes.

9. Architectural drawings including building elevations and sections, building materials, color and type and floor plans.

10. Landscaping plans.

11. Signs, including freestanding and signs located on the building.

D. Review Criteria. Plan review by the planning commission includes compliance with the use and development standards, assuring that appropriate conditions are on the plans and in the recommendations of the director, determining project consistency with current design review guidelines, comprehensive plans, capital facilities and improvement plans, environmental mitigation and concurrency requirements and reasonableness of standards. Review of the site plan includes landscaping, parking and relationship of the proposed project to the public right-of-way from the pedestrian and transportation perspectives.

E. Conditions of Approval. In authorization of a plan review, the planning commission may attach such conditions as may be deemed necessary to carry out the spirit and purpose of this title and in the public interest. (Ord. 1221 § 10, 1992).

17.68.155 Transfer or purchase of development rights.

A. Definition of Terms Used in This Section.

1. “Development right” means one residential density unit of credit. Each acre of farmland zoned for agriculture that is located in the city of Burlington urban growth area that does not have structures on it is eligible for one development right, whether or not it is actively farmed.

2. “Receiving site” means the site in the recipient zone district that will receive the development rights from the sending site. Receiving sites in the city of Burlington are further described in BMC 17.15.040(K) and 17.24.040(N). The density credit of a sending site may be transferred or purchased and credited to a noncontiguous receiving site only when the transfer or purchase of development rights is approved in accordance with this section.

3. “Sending site” means the site that is to be preserved as agricultural resource land by selling or transferring its development rights. Sending sites shall be maintained permanently as agricultural lands and no structures may be built on the land.

B. General Requirements.

1. Property eligible for transfer of residential development rights is described in BMC 17.15.040(K) and 17.24.040(N).

2. The residential development rights shall be considered as interests in real property and may be transferred by sale or gift in part or in total as provided in this section. Once used, transfer credits or dwelling unit credits shall not be used again and the residential development rights of the subject property providing them shall be considered severed forever, except as additional rights may be conferred through future zoning.

3. Residential development rights may be transferred to a specific parcel or sold to an individual(s) or other entity.

4. In the recipient zone districts the residential development rights shall not increase the underlying zoning density by more than one dwelling unit per acre. Owners of the parcels within the recipient zone districts gain inherent additional density for their property when they purchase development rights when a conditional use permit is issued for the receiving site. Except as provided in this section, development of a receiving site shall remain subject to all use, lot coverage, height, setback and other requirements of its zone. The conditional use permit process for approval of the use of development rights at the receiving site could possibly preclude full use of their development potential.

5. Density credits from one sending site may be allocated to more than one receiving site. The credit from each segment shall be allocated to a specific receiving site.

6. Conservation easements shall be required for land contained in the sending site to indicate development limitations on the sending site.

C. Procedure.

1. An owner of real property in the sending area is entitled to sell or transfer the development rights associated with the property. An owner of real property desiring to sell or transfer development rights shall submit an application for severance of development rights to the director. The director shall determine the form of the application and the information required for a complete application.

2. The director shall determine the number of development rights available for severance.

3. The department shall issue a certificate documenting the number of available development rights.

4. To sever development rights approved by the department, the property owner shall execute a restrictive easement, “conservation easement”, between the owner and the city or a tax exempt organization or other governmental agency, as approved by the city in a form approved by the department.

5. The certificate of development rights and the restrictive easement shall be recorded by the owner with the Skagit County auditor. The owner shall provide a copy of the recorded documents to the department. When the documents have been recorded and the recorded documents have been received by the department, the severance is complete.

6. Once development rights have been severed from a sending area property in accordance with this code, the property owner may sell or transfer the development rights by executing and recording with the Skagit County auditor a deed of development rights, using a deed form prescribed by the department. The deed shall describe the number of development rights being sold or transferred.

7. A request to utilize development rights within a receiving area must be part of a subdivision or plan review application under chapter 17.68 BMC. The site plan must indicate the number of development rights to be issued. The application must contain a copy of either a deed of development rights or a contract for the purchase of development rights.

8. A conditional use permit shall be required to use development rights at a receiving site, at the rate of one additional unit of density per acre.

9. Prior to final approval of the site plan, the applicant must provide the department with a deed of development rights.

10. The site plan, referencing the deed of development rights, shall be recorded by the owner with the Skagit County auditor. (Ord. 1333 § 4, 1997).

17.68.160 Reclassification of property including rezone and contract rezone and zoning ordinance text amendments, initiation of amendments, review criteria and conditions of approval.

A. Initiation of Amendments.

1. Zoning Map.

a. One or more property owners of the property may submit an application requesting a reclassification of the property;

b. The city council, upon its own motion, may request the planning commission to conduct a public hearing on the reclassification of property;

c. The planning commission, as part of a citywide project to implement the comprehensive plan, may upon its own motion call for a public hearing on the reclassification of property.

2. Text.

a. The city council, upon its own motion, may request the planning commission to conduct a public hearing to amend any portion or all of this title;

b. The planning commission may upon its own motion call for a public hearing to amend any portion or all of this title;

c. Any resident or property owner of the city may petition the city to request an amendment to the text of this title.

B. Review Criteria. When the planning commission is considering recommendations for reclassifications, or when the city council is considering approval of reclassifications, the planning commission or the city council shall investigate the request for reclassification and shall consider, among other questions, the following:

1. Is the request compatible with the city’s comprehensive plan and development goals?

2. Are public utilities, public facilities and other services currently adequate to serve the proposed district?

3. Would the proposal adversely affect the health, safety, or welfare of the adjacent area of the area being considered?

4. Is the reclassification or land development needed at this time?

5. What are the economic impacts of the proposed action?

6. Are the arguments of support or opposition by local citizens valid?

7. Have conditions of the area substantially changed since the original zoning to justify a rezone?

C. Amendments to Rezone Requests. A requested rezone may be changed, conditioned or modified by the city council without requiring additional hearings subject to the following:

1. The modification or change shall not result in a more intense zone than the one requested.

2. The area of the request shall not be enlarged, however, the area may be lessened.

D. Contract Rezones.

1. In order to mitigate any impacts that may result from a rezone the city may enter into a property use and development agreement with the property owner. The agreement shall outline the conditions of approval and the obligations of the property owner. The contract shall be binding upon the owner and his/her heirs, assigns and successors. The agreement shall run with the land, be signed by the property owner(s) and be recorded with the Skagit County auditor real property records within 120 days of adoption of the ordinance accepting the agreement.

2. The ordinance rezoning the property shall provide for acceptance of the agreement and shall not be effective until the agreement has been executed by the owner.

3. Amendment of Contract Rezones. Agreements required as a condition to map amendments may be amended by agreement between the owner and the city, provided that the amended agreement shall be approved by the council. Amendments which are within the spirit and general purpose of the prior decision of the council may be approved by the council by ordinance after receiving any advice which it deems necessary. Written notice and an opportunity to comment shall be provided by the council at least 14 days prior to council consideration of the amendment request to persons who submit written or oral comments on the original rezone decision. Amendments which in the judgment of the council represent a major departure from the terms of the agreement shall not be approved until the council has received the recommendations from the planning commission after a public hearing held in the same manner and pursuant to the same notice provided for map amendments. (Ord. 1396 § 61, 1999; Ord. 1318 § 9, 1996; Ord. 1221 § 10, 1992).