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RES 2001-53 VACATION AND REVOCATION OF KITSAP COUNTY SHORT PLAT/PUD NO 1927RESOLUTION NO. 2001-53 A RESOLUTION of the City of Bainbridge Island, Washington, vacating and revoking Kitsap County Short Plat/Planned Unit Development No. 1927. WHEREAS, in 1979, the Kitsap County Board of Commissioners approved by resolution Short Plat/Planned Unit Development No. 1927 on five acres of property located off Blakely Avenue; and WHEREAS, Short Plat/Planned Unit Development No. 1927 was recorded on August 22, 1979 under AFN 7908220127; and WHEREAS, on February 26, 2001, Paul and Deborah Brainerd submitted a request for vacation of Short Plat/Planned Unit Development No. 1927 to the City of Bainbridge Island Department of Planning & Community Development; and WHEREAS, on May 22, 2001, the Hearing Examiner has held an open record public hearing on the vacation and revocation of Short Plat/Planned Unit Development No. 1927; and WHEREAS, the Hearing Examiner has forwarded to the Council for consideration the Examiner's Findings of Fact, Conclusions of Law, and Recommendation, in which the Examiner recommends that the Council approve the revocation of Short Plat/Planned Unit Development No. 1927; now, therefore THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES RESOLVE AS FOLLOWS: Section 1. The City Council finds that vacation and revocation of Short Plat/Planned Unit Development No. 1927 is in the public interest. Section 2. The City Council adopts by reference the Findings of Fact, Conclusions of Law, and Recommendation of the Hearing Examiner, dated September 24, 2001 and attached as Exhibit A to this Resolution. CITY OF BAINBRIDGE ISLAND OFFICE OF THE HEARING EXAMINER nn r 5 VACATION OF KITSAP COUNTY ) CONO2-26-01-1 SHORT PLAT/PLANNED ) FINDINGS OF FACT UNIT DEVELOPMENT NO. 1927 ) CONCLUSIONS OF LAW APPLICANT: PUGET SOUND ) AND RECOMNIENDATION ENVIRONMENTAL LEARNING ) CENTER BY F. NATHAN THOMAS ) SUMMARY The Puget Sound Environmental Learning Center (PSELC) has applied for a vacation of a Short Plat/Planned Unit Development (SP/PUD) which was approved by the Kitsap County Board of Commissioners in 1979. This SP/PUD has never been developed. The five acre parcel encumbered with this SP/PUD approval is a part of a larger 256 acre parcel purchased by Paul and Deborah Brainerd for development of the PSELC. The Brainerds transferred the ownership of the property to PSELC in December of 2000. The PSELC was approved for development under Conditional Use Permit CUP07-06-99-1. The project is now being developed and the improvements made to the property are clearly inconsistent with the previously issued PUD permit. The vacation of SP/PUD No. 1927 is recommended for approval. FINDINGS OF FACT 1. The PSELC is the legal owner of Lots A, B, C, D, E and F, at Kitsap County Short Plat No. 1927, recorded under Auditor's File No. 7908220127; Legal Description: Situate in the Northeast quarter of the Northwest quarter of Section 3, Township 24 North, Range 2 East, W.M., City of Bainbridge Island, Kitsap County, Washington, subject to and together with easements, restrictions and reservations of record. Tax Lot Numbers: 032402-2-002-2001; 032402-2-045-2006; 032402-2-046-2005; 032402-2-047-2004; 032402-2-048-2003; and 0322402-2-049-2002. This property has a zoning designation of R 0.4. 2. PSELC, through its representative F. Nathan Thomas, has applied for a vacation of SP/PUD No. 1927 because this five acre parcel is a part of the PSELC site being developed under a Conditional Use Permit (CUP) issued by the City of Bainbridge Island (CUP07-06-99-1). CONO2-26-01-1 Hearing Examiner Brainerd Page -I- City of Bainbridge Island 3. SP/PUD No. 1927 was approved by the Kitsap County Board of Commissioners in 1979, however, no improvements were made on the five acre site. The property was later sold to Port Blakely Tree Farms, then in 1998 the parcel was sold to Paul and Deborah Brainerd. The Brainerds transferred the property to PSELC in December 2000 for development of the PSELC. 4. The City received a consultation request to resolve the vacation of the Kitsap County SP/PUD No. 1927 in February, 2001. This consultation request was required by conditions of approval for both CUP07-06-99-1 and BLA03-17-00-1. 5. A request for vacation of a PUD is exempt from SEPA review under WAC 197.11.800 (6)(a): Minor Land Use Decisions. 6. Revocation of this PUD permit is necessary to comply with CUP07-06-99-1 conditions of approval. The five acres encumbered by this SP/PUD No. 1927 approval are located in a portion of the PSELC site where the gate house, entry drive and parking areas have been approved; development of that area has begun. EXHIBIT 6 identifies the parcels included in the SP/PUD No. 1927 approval. EXHIBIT 5 shows an outline superimposed over a map of the PSELC locating the five acres on the site. 7. Revocation of SP/PUD No. 1927 is necessary for the preservation and enjoyment of the substantial property right of the applicant to develop the site. The applicant is developing the site as an educational center for environmental studies. The PSELC will utilize the entire site. No residences will be built on the site other than those approved under CUP07-06-99-1. This PSELC development is inconsistent with the terms and conditions previously approved by SP/PUD No. 1927. 8. The revocation of this SP/PUD approval will not be materially detrimental to the public welfare, nor to the property of other persons located in the vicinity of the site. This five acre parcel is being developed as the entry road, parking area and gate house for the PSELC and is no longer an appropriate site for the development of single family residential lots. No objections to this revocation request were received from other property owners in the vicinity. 9. On May 30, 2001 a Public Hearing was held before the Hearing Examiner to consider the application. Prior to the hearing, notice was published in the Bainbridge Review on May 12, 2001; notice of the public hearing was mailed to the owners of property within 300 feet of the proposed project on May 14, 2001, and notices were posted at the City Hall, the Chamber of Commerce, and the Ferry Terminal on April 23, 2001; notice was posted at the subject property on May 16, 2001 [EXHIBIT 12.1 CONO2-26-01-1 Hearing Examiner Brainerd Page -2- City of Bainbridge Island CONCLUSIONS OF LAW 1. The PSELC is the true legal owner of Lots A, B, C, D, E, and F of Kitsap County Short Plat No. 1927, which was recorded under Auditors File No. 7908220127 [See EXHIBIT 14]. 2. This PUD vacation request must be processed under the terms of the Kitsap County Zoning Ordinance in effect at the time the PUD application was filed (BIMC 18.120.020 (D)). Extensive search by Debbie Randall of the Department of Planning and Community Development (DPCD) has revealed that Kitsap County zoning ordinance in effect at the time of application was the portion of the 1977 zoning ordinance described in EXHIBIT 5. Under Section 5.9.2 of the 1977 Zoning Ordinance, a property owner of record of any land or building desiring a reclassification of property or PUD must present a petition requesting the amendment to the Planning Department. In this instance the PSELC filed a formal request with DPCD for consultation on a request for revocation of the PUD permit. Under the 1977 Zoning Ordinance, the request for revocation is then referred to the public hearing body which holds a public hearing and makes a recommendation to the legislative body regarding that revocation request. In this instance a public hearing was held by the Hearing Examiner establishing a record. The Hearing Examiner now makes a recommendation to the City Council for final decision on the request for revocation of the PUD permit and vacation of the short plat. SEPA review is not required. 3. Findings of fact have been entered by the Hearing Examiner finding that this approval is necessary to preserve a substantial property right of the applicant. The revocation of the PUD permit and vacation of the SP are required as conditions for the development of the PSELC under the Conditional Use Permit. In addition, a finding has been entered by the Hearing Examiner that the revocation of this PUD permit will not be materially detrimental to the public welfare, nor to the property of other persons located in the vicinity of the parcel. The use of this site as an educational center has been previously approved by the City of Bainbridge Island and is consistent with the residential zoning of property near this site. 4. A decision by the City Council approving a revocation of SP/PUD No. 1927 and vacating the short plat should be filed with the Kitsap County Auditor to remove the SP/PUD No. 1927 approval from the property title. CONO2-26-01-1 Hearing Examiner Brainerd Page -3- City of Bainbridge Island RECOMMENDATION The Hearing Examiner recommends that the City Council approve a revocation of SP/PUD Permit No. 1927 by City Council resolution as requested by the applicant. It is recommended that a condition be imposed on that approval requiring the applicant to record with the Kitsap County Auditor a copy of the final resolution revoking the PUD permit and vacating the Short Plat. Dated this 2,4 � day of, 2001. obin Thomas Baker Hearing Examiner Pro Tem CONO2-26-01-1 Hearing Examiner Brainerd Page -4- City of Bainbridge Island EXHIBIT LIST CONO2-26-01-1 BRAINERD Hearing Date: 5-30-01 Rvh;I,if if T)escrintion Planner: Debbie Randall Date #Paces l E -Mail to Randall from Sprouffske 12-14-00 2 2 Routing Slip 2-26-01 1 37— Codes Sections (BIMC/RCW) 3 4 Kitsap County Zoning Ordinance 6/83 amend'3/90 5 5 Kitsap County Zoning Ordinance with Fax Transmission. August 1977 6 6 Master Site Plan (L1.1) and Brainerd Vacation Plan 12-7-99 and 4-30- 01 2 7 Corres. to Brainerd from Randall 3-13-01 1 ds' 8 Corres and Pacific Northwest Title Company's Boundary Line Adjustment Certificate Report 11-28-00 26 9 Corres'anil Owner/Applicant Agreement from Thomas,. Architects 4-16-01 2 10 Corres. to DPCD from Thomas 2-26-01 1 11 E -Mail to/from Randall/Nadeau 3-13-01 2 12 Documentation of Public Noticing 13 STAFF REPORT STAFF REPORT City of Bainbridge Island Department of Planning and Community Development Project: Brainerd Vacation of SP/PUD No. 1927 File number: CONO2-26-01-1 (related files: CUP07-06-99-1 Puget Sound Environmental Learning Center; BLA03-17-00-1 Brainerd/Cemetery) Date: May 17, 2001 To: Robin Baker, City of Bainbridge Island Hearing Examiner Project Manager: Debbie Randall, Associate Planner Applicant: Paul & Deborah Brainerd c/o Dana Warren 500 Union St., Ste. 900 Seattle, WA 98101 (206) 749-9484 Applicant Representative: Nate Thomas Architects Thomas 4725 Taylor Ave. NE Bainbridge Island, WA 98110 (206) 842-3559 Request: Vacation of Kitsap County Short Plat/Planned Unit Development No. 1927. Location: Blakely Avenue NE, being a portion of Section 3, T. 24N., R. 2W., W.M. Zoning Designation: R-0.4, one residential unit per 2.5 acres density. Comprehensive Plan Designation: ORS -0.4, Open Space Residential, one residential unit per 2.5 acres density. Environmental Review: Exempt from State Environmental Policy Act (SEPA) review WAC 197-11-800 (6)(a). Brainerd PUD Vacation CONO2-26-01-1/PRJ10399 staff report May 17, 2001 page 1 Recommendation This staff recommends the vacation be approved. A draft resolution will be provided for signature by the City Council to enact this vacation. The resolution, when signed, will be recorded with the County Auditor for execution of the SP/PUD vacation. Brainerd PUD Vacation CONO2-26-01-1/PR]10399 staff report May 17, 2001 page 2 Staff Analysis I. FINDINGS OF FACT A. Site Characteristics AREA AND DIMENSIONS: a. Tax Lot Number 032402-2-002-2007; 032402-2-045-2006; 032402-2-046-2005;032402-2-047-2004; 032402-2-048-2003; and, 032402-2-049-2002. b. Assessor's Record Information Owners of record Paul & Deborah Brainerd Site size: 5 acres Land use: Educational facilities, unimproved SITE DEVELOPMENT: The five -acre site has consisted of mature vegetation with no water bodies. Currently under construction is the "Puget Sound Environmental Leaming Center" across a much larger overall area (256 acres), including buildings, access routes, and appurtenance utilities. The Learning Center was approved by the City of Bainbridge Island (file no. CUP07-06-99-1) to construct and operate approximately 75,000 S.F. of buildings, on-site staff residences and student lodging and classrooms. Road and parking area construction is occurring on the Leaming Center site. Short Plat/Planned Unit Development No. 1927 (SP/PUD 1927) was approved in 1979 by Kitsap County. The City does not have record of the application proceedings, other than those documents recorded with the County Auditor. There are restrictive covenants, open space provisions, and access and utility easements associated with the SP/PUD that can no longer be perfected because of the Learning Center's approval. The City does not consider the six lots within SP/PUD 1927 available for development other than as approved under the CUP07-06-99-1. Approval_ of CUP07-06-99-1 was conditioned on eliminating all abilities to develop this SP/PUD: Conclusion 10. Once a Conditional Use Permit is approved, no building or development shall occur contrary to that specified in the Conditional Use Permit. BIMC 18.108.050. Nan-SEPA Condition 18. To prevent buildings from straddling property lines, the internal property lines shall be adjusted or eliminated prior to building permit application submittal. (March 6, 2000 approval) Brainerd PUD Vacation CONO2-26-01-LPRJ10399 staff report May 17, 2001 page 3 A Boundary Line Adjustment application was submitted (file no. BLA03- 17-00-1) March 17, 2000 to resolve the internal lot lines, pursuant to CUP07-06-99-1. However, a BLA application does not resolve vacation of a PUD, as PUD vacation is a legislative action. Therefore, conditions of BLA03-17-00-1 approval by the City also included requiring submittal of application to vacate SP/PUD 1927: 1. a. Final vacation and rescinding of Short Plat/Planned Unit Development No. 1927 (SP 192 7) and all development rights. restrictive covenants, open space provisions, and associated access and utilities easements shall occur within one calendar year of the approval herein. b. Vacation and rescinding of SP 1927 was a requirement of the City of Bainbridge Island's approval of application file no. CUP07-06-99-1. These six short plat lots presently maintain an assigned tax parcel number and are described as separate lots of record within the title report; for purposes of this lot line adjustment these short plat lots are considered one lot available for single-family residential use. c. Responsibility for commencing and finalizing vacation and rescinding of SP 1927 shall be solely that of the Brainerd applicants. All necessary City of Bainbridge Island review processes for such vacation and rescinding shall be determined in a formal consultation request submitted within 60 calendar days of the approval herein to the City Department of Planning & Community Development. d. Failure on the part of the Brainerd applicants or their assigns to commence and complete conditions La. and I.c. herein shall result in the placing of a hold on all City land use application processes associated with BLA03-17-00-1 and CUP07-06-99- 1, including building permits. The hold shall remain in place until resolution of noncompliance is found to the satisfaction of the City of Bainbridge Island Director of Planning & Community Development. The City does not maintain an application process to vacate undeveloped PUD's. Therefore, through a formal consultation process (file no. CONO2-26-01-1) the vacation is herein considered. ACCESS: The site is accessed off the public right of way Blakely Avenue NE. 4. SURROUNDING USES/ZONING/COMPREHENSIVE PLAN DESIGNATIONS: The subject site and surrounding vicinity is composed of single-family residences, a public elementary school, a cemetery, a private educational learning center complex with public recreation features, and undeveloped open space. Zoning for the site and surrounding vicinity is R-0.4, and a Brainerd PUD Vacation CONO2-26-01-11PRI10399 staff report May 17, 2001 page 4 comprehensive plan designation of OSR-0.4. Both of these designations indicate a density of one residential unit per 2.5 acres. B. History 1. February 26, 2001, the City received a consultation request (file no. CONO2- 26-01 - 1) to resolve vacation ofKitsap County SP/PUD 1927. Beginning this consultation process was a condition of approval of application CUP07-06-99- 1 (issued March 6, 2000) and BLA03-17-00-1 (issued December 20, 2000). 2. May 22, 2001, a public hearing was held by the City Hearing Examiner on the vacation request. 3. One comment was received regarding the vacation, under application review for BLA03-17-00-1: i. City of Bainbridge Island Department of Public Works (date stamped December 15, 2000) C. Land Use Code Requirements BIMC Chapter 16.04 Environment. a. The requested vacation is exempted from SEPA review under WAC 197-11-800(6)(a), Minor land use decisions. BIMC Title 17 Subdivision. a. BIMC 17.12.160 Amendment to approved short subdivision. A short subdivision which has been approved and recorded may be amended upon application of the owners of all lots which are being amended. The contents and procedure for an amended application shall be that for an application in the first instance, excepting that minor alterations regarding homesite location and/or open space usage shall be approved administratively consistent with the procedures and requirement of Chapter 2.16. Short plat amendment or vacation is an administrative process. This short plat was approved also as a PUD, thus the more extensive process of PUD vacation is necessary. The City's PUD processes are found under Title 18. 3. BIMC Title 18 Zoning. a. 18.120.020 PUD -process overview. D. A PUD application shall be reviewed under the laws in effect at the time the application is approved or disapproved. The Kitsap County land use controls of 1977 are reviewed herein, to the extent the information was provided. b. 18.120.130 Adjustments to a PUD permit. Brainerd PUD Vacation CONO2-26-01-1/PRJ10399 staff report May 17, 2001 page 5 B. Adjustments other than minor adjustments to an approved PUD require an amended permit and shall be processed in the same manner as a new PUD permit application. The vacation action has been considered other than a minor adjustment. An attempt has been made to process the vacation pursuant to both the 1977 County controls the PUD was approved under and 2001 City controls now in effect for any new PUD application. c. 18.120.160 Merger with subdivision. A. Procedure. The city may review and decide on a subdivision or short subdivision at the same hearing as the PUD to the extent allowed by the city and state subdivision regulations. The current City controls allow pairing of a short plat with a PUD, as did the 1977 County controls. d. 18.120.150 Revocation of permit. A PUD permit may be revoked by final decision of the hearing examiner in accordance with BIMC 2.16. 100 upon the finding of any one or more of the following: A. That the approval was obtained by deception, fraud or other intentional or misleading representation; or No such actions are implied. The site has simply never been developed as approved for SP/PUD 1927. B. That the development of the subject property has not been consistent with the PUD permit. No improvements have been installed at the site regarding the SP/PUD. There are now active improvements being made at the site for the Learning Center CUP that are clearly not consistent with the SP/PUD approval. Condition 18 of CUP approval required the removal of the SP/PUD in order to go forward. 4. Kitsap County Code. a. The Kitsap County Board of Commissioners approved PUD/SP 1927 in 1979. The City has in its possession a complete copy of the June 1983 (Amended 3/90) edition of The Kitsap County Zoning Ordinance. A City staff person attempted several times to obtain a copy of the zoning controls in effect in 1979. A portion of the 1977 controls regarding "Amendments, Planned Unit Developments..." was delivered to the City. Jeff Smith, Planner, Kitsap County Dept. of Community Development (12+ years with department), stated that the August, 1977 Kitsap County Zoning Ordinance section was in effect through 1979. Joining of PUD land use with a short plat was set out in County land use controls at that time or else the approval would not have been issued. Brainerd PUD Vacation CONO2-26-01-11PRJ10399 staff report May 17, 2001 page 6 The PUD portion of the project was what would have allowed for design flexibility beyond that normally permitted under a standard SP, such as clustering structures, eliminating lot area and setback requirements, and allowing open space areas. This was explicitly in County controls by at least 1990, but appears to have been in effect in 1979 based on what was approved at the time. Vacation of a short plat by itself (no public dedication to vacate either) would not normally involve legislative action. However, the PUD portion of the project required the County legislative body to approve it (so stated in the 1977 County controls), thus a legislative body must "unapprove" it. The current City process states a PUD application shall be reviewed under the laws in effect at the time the application was approved or disapproved (BIMC 18.120.0201D]). The Kitsap County Code circa 1979 appeared to provide for the Planning Commission to review the application in a public session and for the County Board of Commissioners (legislative body) to make the decision. The term "hearing" is not used in the 1977 County controls until it refers to the Board of County Commissioners' actions, however the text indicates the Planning Commission does all the considering. It is unclear which body held the public hearing. Rescinding the PUD is, however, mentioned in 1990. q. Recision of PUD. A PUD may be rescinded if the owners or occupants of the property encompassed by the PUD fail to comply with the conditions imposed. .... (1990 Kitsap Co. Zoning Ord., Sect. 14) In attempting to follow the County's process under the City's present review bodies, the vacation has been placed on the agenda of the City Hearing Examiner to conduct an open record public hearing. The Examiner will establish the record and make a recommendation to the City Council. The City Council will in turn hold a closed record public meeting to review the Examiner's record and issue their decision on vacation. The City does not maintain a PUD vacation request form. The formal consultation request of February 26, 2001 and information submitted under BLA03-17-00-1 have been considered sufficient documentation of the owners' intent to vacate. II. CONCLUSIONS A. Site Characteristics The requested vacation is appropriate for the site and necessary in order tc perfect site improvements being performed pursuant to construction of the Puget Sound Environmental Learning Center CUP07-06-99-1. Brainerd PUD Vacation C )NO2-26-0 I - I /PRJ 10399 staff report May 17, 2001 page 7 B. History This vacation application is properly before the Hearing Examiner for recommendation within an open record public hearing process. The Examiner's recommendation will be forwarded to the City Council for final action within a closed record meeting. C. Land Use Code Requirements The vacation complies with the applicable provisions of the Bainbridge Island Municipal Code. The requested vacation is appropriate for the site and necessary in order to perfect other City land use approvals (file no. CUP07-06-99-1 and BLA03-17-00-1) pursuant to BIMC Title 17 and Title 18. D. SEPA Determination The vacation has been considered exempt from review under SEPA. III. APPEAL PROCEDURES The recommendation of the Hearing Examiner is not available for appeal. The final action of the City Council, upon its occurrence, may be appealed in accordance with the procedures of BIMC 2.16.130 and other applicable code sections. Brainerd PUD Vacation CONO2-26-01-IIPRJ10399 staff report May 17, 2001 page 8 OJ4-00 J9 0-00 035-00 29 Jt 029-00 036-00 1-00 037-00 J7 ' / jk 1917-8 ---054 No --055 1911-: 4942-A 053 VICINITY MAP 004 SITE T t _ E 2 i N 048 045 1527-D 1977-A I 049 002 1 1 1927-- 1917-9 1 ----------- 047 046 JD' EASEVEN1 z 001 3 W Q 057 I I 00 Section 3. The City Council hereby vacates and revokes Kitsap County Short Plat/Planned Unit Development No. 1927, as recorded under AFN 7908220127. The applicant shall record a copy of this Resolution with the Kitsap County Auditor. PASSED by the City Council this 24`h day of October 2001 APPROVED by the Mayor this 25`h day of October, 2001 Dwight Sutton, Mayor ATTEST/AUTHENTICATE: SAN P. KASPER, City Clerk FILED WITH THE CITY CLERK: October 17, 2001 PASSED BY THE CITY COUNCIL: October 24, 2001 RESOLUTION NO.: 2001-53