ORD 2003-13 SUPPORTING CONTINUATION OF SHORELINE MORITORIUM ORDINANCE NO. 2003-13
AN ORDINANCE of the City of Bainbridge Island, Washington,
adopting findings of fact supporting the continuation of the City's
moratorium on applications for shoreline substantial development
permits, shoreline substantial development exemptions, and shoreline
conditional use permits; continuing the moratorium until September 1,
2003; amending Sections 1 and 2 of Ordinance No. 2001-34, Section 2
o£ Ordinance No. 2002-29, and Section 2 of Ordinance No. 2001-45; and
declar/ng an emergency.
WHEREAS, in March 1999, Puget Sound Chinook were listed as a threatened
species under the Endangered Species Ac.t; and
WHEREAS, in September 2000, the City Council adopted Resolution No.
2000-31, recognizing that Bainbridge Island contains critical habitat to Puget Sound
Chinook and making the protection of salmonid habitat a high priority for the City; and
WHEREAS, in May 2001, the City Council adopted a general salmon recovery
and conservation strategy, of which the two most important components are the revision
of the City's Shoreline Master Program and the City's critical areas ordinance (Chapter
16.20 BIMC); and
WHEREAS, Bainbridge Island's shoreline is approximately 51 percent armored
and heavily developed with shoreline structures, which may fragment remaining natural
habitat; and
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WHEREAS, shoreline structures, such as piers, docks, and bulkheads, have the
potential to cause significant impact to critical shoreline habitat, by changing beach
substrate and elevation which can negatively effect juvenile salmon migratory patterns;
and
WHEREAS, the removal of riparian and overhanging vegetation can cause
changes in microclimate and water quality, and can impact the food web critical to
salmonids; and
WHEREAS, in addition to the direct impacts described above, shoreline
structures can cause significant stress to marine vegetation and animals that are critical
to healthy salmonid habitat; and
WHEREAS, currently, the City lacks adequate tools and detailed scientific
knowledge necessary for a full evaluation of the individual and cumulative
environmental impacts of shoreline development in salmonid habitat; and
WHEREAS, the Bainbridge Island Nearshore Assessment, a federally funded
shoreline inventory and ecological assessment project, has begun and will provide the
basic scientific knowledge required to develop the necessary resource management tools
for the Shoreline Master Program revision; and
WHEREAS, once the Bainbridge Island Nearshore Assessment tasks essential
to the Shoreline Master Program update are completed by May 2003, it will take
additional time to revise the City's Shoreline Master Program and critical areas
ordinance, and obtain necessary approvals from the state Department of Ecology; and
WHEREAS, on August 22, 2001, the City Council passed Ordinance No.
2001-34, imposing a moratorium on the filing of certain applications for shoreline
substantial development permits, shoreline substantial development exemptions, and
shoreline conditional use permits; and
WHEREAS, on October 10, 2001, the City Council held a public hearing on
the moratorium and adopted Ordinance No. 2001-45 amending Ordinance No. 2001-34;
and
WHEREAS, on August 14, 2002, the City Council held a public hearing on the
moratorium and adopted Ordinance No. 2002-29 amending Ordinance No. 2001-34;
and
WHEREAS, the City has been working through a deliberate public process to
revise and update the Shoreline Master Program consistent with RCW 90.58, especially
RCW 90.58.130, but will not be able to complete the Shoreline Master Program update
prior to September 1, 2003; and
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WHEREAS, the City established the Shoreline Master Program Update
Steering Committee in January 2002, which reviewed and revised the shoreline goals
and policies between January and June 2002; and
WHEREAS, the Planning Commission reviewed and revised shoreline goals,
policies, and regulations between June 2002 and January 2003, held a public hearing on
September 12, 2002, conducted several detailed workshops, and submitted their
recommendation to the City Council Land Use Committee on January 16, 2003; and
WHEREAS, the City Council Land Use Committee has begun updating the
implementing shoreline regulations and anticipates a public hearing on the updated
Shoreline Master Program in May 2003. The City expects final adoption of the
Shoreline Master Program and critical areas ordinance by the Council by July 2003
with final Ecology approval of the Shoreline Master Program expected between July
2003 and December 2003; and
WHEREAS, the City needs additional time to gather, study and analyze the
scientific information, and to revise the Shoreline Master Program and critical areas
ordinance, during which time significant shoreline habitat that supports a species
threatened with extinction could be lost or damaged; and
WHEREAS, RCW 35A.63.220 and RCW 36.70A.390 authorize the City to
adopt a moratorium on development of up to one year, and to continue the moratorium
for additional six-month periods after conducting a public hearing on the continuation of
the moratorium and adopting findings of fact supporting the continuation; and
WHEREAS, on February 26, 2003, the City Council held a hearing on the
issue of the continuation of the moratorium, at which time members of the public had
the opportunity to present testimony and other evidence in favor of or against the
continuation of the moratorium; and
WHEREAS, the City Council has determined that the continuation of the
moratorium;as adopted in Ordinance Nos. 2001-34 and 2001-45 and in this Ordinance,
is necessary for the protection of the public health, safety, property, or peace, including
the protection of shoreline habitat that supports a species threatened with extinction, and
desires to enter the findings set forth in this Ordinance to support the continuation of
the moratorium as required by RCW 35A.63.220 and RCW 36.70A.390; now,
therefore
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THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, DO
ORDAIN AS FOLLOWS:
Section 1. Establishment of Findings. Based on the public testimony and
other evidence submitted at the public hearings held on October 10, 2001, August 14,
2002, and February 26, 2003, the City Council enters the following Findings of Fact to
support the moratorium described in Section 1 of Ordinance No. 2001-34, as amended
by Section 2 of Ordinance No. 2001-45 and Section 2 of this Ordinance
("Moratorium"):
1. On October 10, 200I, the City Council held a public
hearing on the moratorium on the filing of certain applications for
shoreline substantial development permits, shoreline substantial
development exemptions, and shoreline conditional use permits, and on
August 14, 2002 and February 26, 2003, the City Council held public
hearings on the continuation of the moratorium.
2. At the hearings, members of the public had the
opportunity to present testimony and other evidence regarding the
imposition of the Moratorium. The City Council considered testimony
by staff regarding the Moratorium submitted at the hearings, as well as
all evidence presented by the public.
3. In March 1999, Puget Sound Chinook were listed as a
threatened species under the Endangered Species Act. The Kitsap
Peninsula Salmonid Refugia Study, authored by Kitsap County and dated
July 13, 2000, identifies Bainbridge Island nearshore as Category B
salmonid refugia (Category B refers to high quality but altered
conditions, with good ecological integrity). The National Marine
Fisheries Service has ruled that "critical habitat is designated to include
all marine, estuarine and river reaches accessible to listed chinook
salmon in Puget Sound." (50 CFR 226.212) In September 2000, the
City Council adopted Resolution No. 2000-31, recognizing that
Bainbridge Island contains critical habitat for Puget Sound Chinook and
making the protection of salmonid habitat a high priority for the City.
4. In May 2001, the City Council adopted a general salmon
recovery and conservation strategy, of which the two most important
components are the revision of the City's Shoreline Master Program and
of the City's critical areas ordinance (Chapter 16.20 BIMC).
5. Bainbridge Island has 48.5 miles of shoreline. The City's
shorelines are approximately 51 percent armored and are heavily
developed with shoreline structures, which may fragment remaining
natural habitat with an unknown cumulative effect.
6. Shoreline structures, such as piers, docks, and bulkheads,
have the potential to cause significant impact to critical shoreline habitat,
by changing beach substrate and elevation which can negatively effect
juvenile salmon migratory patterns. The removal of riparian and
overhanging vegetation can cause changes in microclimate and water
quality, and can impact the food web critical to salmonids. Moreover, in
addition to these direct impacts, shoreline structures can cause significant
stress to marine vegetation and an'anals that are critical to healthy
salmonid habitat.
7. Currently, the City lacks adequate tools and detailed
scientific knowledge necessary for a full evaluation of the individual and
cumulative environmental impacts of shoreline development on salmonid
habitat.
8. In order to provide the basic scientific knowledge required
to develop the necessary resource management tools for the Shoreline
Master Program revision, the City has begun the Bainbridge Island
Nearshore Assessment, a federally funded shoreline inventory and
ecological assessment project. The City has not had time to complete the
Nearshore Assessment.
9. The City has published a draft Summary of Best Available
Science report, and expects that several essential reports, including the
final Summary of Best Available Science and the Bainbridge nearshore
Characterization and Assessment report will be complete by May 2003.
Once these Bainbridge Island Nearshore Assessment tasks essential to the
Shoreline Master Program update are completed, the City will need
additional time to revise the City's Shoreline Master Program and critical
areas ordinance, and to obtain the necessary approvals of the revisions
from the state Department of Ecology. The City anticipates that the
revisions to the Shoreline Master Program and the critical areas
ordinance will be completed prior to or by December 2003.
10. Based on a simple trend analysis, the City estimates that in
the time that it will take to revise the Shoreline Master Program and the
critical areas ordinance, the City will receive at least 34 shoreline
substantial development permit applications and 69 shoreline substantial
development exemption applications, all of which may cause additional
harm to the shoreline habitat. In addition, based on the City's
experience in the past, the City expects to receive an increased number
of applications due to the pending regulation changes. The City
estimates that this increase will be approximately twenty percent. There
has been a noticeable increase in shoreline permit applications since the
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time that Puget Sound Chinook were listed as a threatened species under
the Endangered Species Act in March 1999.
.;-. 11. On August 22, 2001, the City Council passed Ordinance
No. 2001-34, imposing a moratorium on the filing of certain applications
for shoreline substantial development permits, shoreline substantial
development exemptions, and shoreline conditional use permits. On
October 10, 2001, the City Council held a public hearing on the
moratorium and passed Ordinance No. 2001-45, which amended
Ordinance No. 2001-34 and adopted findings of fact supporting the
moratorium, as amended. The amendment to the moratorium, stated in
Section 2 of Ordinance No. 2001-45, clarified and simplified the type of
shoreline development that is subject to the moratorium. The
amendments also restricted the moratorium to the structures that have the
greatest potential to impact shoreline habitat. On August 14, 2002, the
City Council held a public hearing on the moratorium and passed
Ordinance No. 2002-29, which amended Ordinance 2001-34 and adopted
findings of fact supporting continuation of the moratorium, and
continuing the moratorium until March 1, 2003.
12. Since passing Ordinance No. 2002-29, the City has been
working through a deliberate public process to revise and update the
Shoreline Master Program consistent with RCW 90.58, especially RCW
90.58.130. However, the City will not be able to complete the Shoreline
Master Program update by March 1, 2003.
13. In January 2002, the City established the Shoreline Master
Program Update Steering Committee. Between January and June 2002,
the Steering Committee reviewed and revised the shoreline goals and
policies in the Shoreline Master Program.
14. In June 2002, the Planning Commission reviewed and
revised shoreline goals, policies, and regulations between June 2002 and
January 2003, held a public hearing on September 12, 2002, conducted
several detailed workshops, and submitted their recommendation to the
City Council Land Use Committee on January 16, 2003.
15. The City Council Land Use Committee has begun
updating the implementing shoreline regulations and anticipates a public
hearing on the updated Shoreline Master Program in May 2003.
Currently, the City expects final adoption of the Shoreline Master
Program and the critical areas ordinance by the Council by July 2003,
with final Ecology approval of the Shoreline Master Program expected
between July 2003 and December 2003.
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16. As outlined in the previous paragraphs, the City needs '~-
additional time to gather, study and analyze carefully the appropriate
scientific information, and to revise the Shoreline Master Program and
critical areas ordinance, during which time significant shoreline habitat
that supports a species threatened with extinction could be lost or
damaged.
17. An extension of the Moratorium is necessary while the
City considers the appropriate scientific information, and prepares and
considers the revisions to the Shoreline Master Program and critical
areas ordinance. The City's land use and planning process, as well as
the protection of critical salmonid habitat, will suffer significant harm if
the Moratorium is not in place until the City completes the revisions to
the Shoreline Master Program and critical areas ordinance.
18. The amendment to the Moratorium, stated in Section 2 of
this Ordinance, will simplify and limit the type of shoreline development
that is subject to the moratorium, and will provide significant public
benefit by furthering the City's goal of providing the public with
recreational opportunities on Puget Sound, without unnecessarily
harming or degrading the shoreline environment.
19. The City Council has determined that the extension and
continuous operation of the Moratorium is necessary for the protection of
the public health, safety, property, or peace, including the protection of
shoreline habitat that supports a species threatened with extinction.
Section 2. Section 1 of Ordinance No. 2001-34 and Section 2 of Ordinance
No. 2001-45 are amended to read as follows:
Imposition of Moratorium. A moratorium is imposed on the filing of
new applications for shoreline substantial development permits, shoreline
substantial development exemptions and shoreline conditional use
permits for new overwater structures (piers, docks and floats) and new
shoreline armoring (bulkheads and revetments) where none has
previously existed. This moratorium shall not apply to shoreline permits
and exemptions for (1) recreational floats that are used predominantly for
sailing and boating classes that are open to the public and (2) single
family residences and their normal appurtenances, which includes
Accessory Dwelling Units, within the shoreline jurisdiction. The terms
in this section shall have the definitions stated in BIMC 16.12.030.
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Section 3. Section 2 of Ordinance No. 2001-34 and Section 2 of Ordinance
No. 2002-29 are amended to read as follows:
Term of Moratorium. The moratorium imposed in this ordinance shall
take effect five days after its passage, approval and publication as
required by law and shall continue in effect until and including M~_r'z_h !,
2003 September 1, 2003, unless repealed, extended or modified by the
City Council after subsequent public hearing and entry of appropriate
findings of fact pursuant to RCW 35A.63.220.
Section 4. Severability. If any section, sentence, clause or phrase of this
ordinance shall be held to be invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase of this ordinance.
Section 5. Effective Date. This ordinance, passed by a majority plus one of
the whole membership of the City Council as a public emergency ordinance necessary
for the protection of the public health, public safety, public property, or public peace,
shall be effective immediately upon its passage.
PASSED by the City Council this 2 6 day of February, 2003.
APPROVED by the Mayor this 27 day of February, 2003.
DARLENE KORDOWNOY, MayoS
ATTEST/AUTHENTICATE:
SOS-AN P. kASPER, City Clerk
APPROVED AS TO FORM:
ROD P. KASEGUMA, City Attorney
FILED WITH THE CITY CLERK: February 20, 2003
PASSED BY THE CITY COUNCIL: February 26, 2003
PUBLISHED: March 5, 2003
EFFECTIVE DATE: IM~iEDIATELY
ORDINANCE NO. 2003-13
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