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Public access includes the ability of the general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. Examples include but are not limited to public parks, trails, piers and boardwalks, view overlooks, street ends, beaches, boating facilities, hand-carry craft launches/pullouts, and water-borne public transportation. The public access provisions below apply to all shorelines of the state unless stated otherwise.

A. Policies.

1. Public access, in its variety of forms, should be promoted whenever feasible provided the result is no net loss of the shoreline’s ecological function.

2. Public access should be provided to the shoreline as a primary use or as development occurs while protecting private property rights and public safety.

3. Public access should not compromise the rights of navigation and space necessary for water-dependent and water-related uses.

4. To the greatest extent feasible and consistent with the overall best interest of the state and the people generally, the public’s opportunity to enjoy the physical and aesthetic qualities of shorelines of the state, including views of the water, should be protected.

5. Property owners should implement a variety of techniques including acquisition, leases, easements and design and development innovations to achieve public access goals and to provide diverse public access opportunities.

6. Public access provisions should be consistent with all relevant constitutional and other limitations on private property including the constitutional nexus and proportionality requirements.

B. Regulations.

1. When public access is provided, it shall not result in a net loss of existing shoreline ecological function.

2. When public access is required to be provided, it shall be provided between the development and the shoreline and may be provided within a required buffer area subject to the requirements and exceptions below, and shall be reviewed and approved on a case-by-case basis.

3. When public access is provided within a required buffer, said access shall demonstrate compliance with mitigation sequencing in BMC 22.08.020, Mitigation sequencing.

4. Public access, whether developed as a primary use or as a required element of a permitted use, and where applicable, shall be provided and designed consistent with applicable and adopted public access plans such as the City of Bellingham Park, Recreation and Open Space Plan (2005), public access plans as specified in BMC 22.02.010, General goals and policies, applicable neighborhood plans and/or the Waterfront District Master Plan, as adopted.

5. When public access is required to be provided per an adopted plan as specified in subsection (B)(4) of this section, and is intended to be within a required shoreline buffer area, said access shall be designed and sited to minimize the amount of native vegetation removal, soil disturbance and disruption to existing habitat corridor structures and functions.

6. When public access is required per BMC 22.03.030, Shoreline environmental designations, or is proposed as a stand-alone development project and there is not an adopted plan that specifies access and design for that specific access feature, the emphasis shall be on providing said access to the shoreline as opposed to along the shoreline and shall be analyzed on a case-by-case basis.

7. Public access shall be provided as development occurs except when:

a. The city is able to provide more effective public access in another location in close proximity through an approved/adopted public access planning process/document. For example, the City of Bellingham Park, Recreation and Open Space Plan (2005), an element of the 2006 Comprehensive Plan, the Waterfront Futures Group Framework and Action Plan, the Whatcom Creek Trail Master Plan or the Waterfront District Master Plan, upon adoption.

b. It is demonstrated to be infeasible due to reasons of incompatible uses, safety, security or impact to the ecological function of the shoreline environment or due to constitutional or other legal limitations that may be applicable and consistency with the governing principles in BMC 22.01.040, Governing principles. (WAC 173-26-186) (In determining the infeasibility, undesirability, or incompatibility of public access in a given situation, the city shall consider alternate methods of providing public access, such as off-site improvements, viewing platforms, separation of uses through site planning and design, and restricting hours of public access.)

c. A subdivision of land into four or fewer parcels for future single-family development, or development of individual single-family residences occurs.

d. The development consists solely of dredging, forest practices, clearing and grading, the construction of a private dock serving four or fewer dwelling units, flood control measures, the construction of in-water structures (except those developed specifically for public access), shoreline stabilization measures, signage, shoreline restoration and enhancement not associated with a substantial development permit, or lighting.

8. When public access is required to be provided it shall be designed per a plan that shall be reviewed and approved by the planning and community development, parks and recreation and environmental resources departments or per an adopted public access plan.

9. Where public access is provided, a public access easement or dedication of said access area in favor of the city shall be required.

10. In instances where public access and restoration has already occurred as part of prior action and public access is still required per the applicable shoreline designation, additional public access may be allowed within a required buffer area provided it does not encroach any further into said buffer than the existing public access feature and does not displace or disrupt any elements of the prior restoration action. The type of public access provided in these circumstances shall be reviewed and approved on a site-by-site basis.

11. In instances where public access is proposed in conjunction with a restoration project that includes work within a critical area or its buffer, the public access element may be provided within a critical area or its buffer provided it is the minimum necessary to provide an access function and shall be consistent with applicable requirements in this chapter and Chapter 22.09 BMC. The design and location of said access feature shall not compromise the ability of the restoration project’s ability to achieve its intended objectives.

12. Where there is an irreconcilable conflict between water-dependent shoreline uses or physical public access and maintenance of views from adjacent properties, the water-dependent uses and physical public access shall have priority, unless there is a compelling reason to the contrary.

13. Where there is an irreconcilable conflict between public access and shoreline ecological function, shoreline ecological function shall have priority, unless said public access is specifically identified in any of the plans specified in subsection (B)(4) of this section or as otherwise determined by the parks director. In this case, said public access shall demonstrate compliance with BMC 22.08.020, Mitigation sequencing. [Ord. 2013-02-005 § 2 (Exh. 1)].