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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 -1- 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 -2- 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 -3- 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 -5- 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. -6- 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. -7- 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 -8-