ORD NO. 2018-05 AMENDING & RESTATING 6-MONTH MORATORIUMORDINANCE NO. 2018-05
AN ORDINANCE of the City of Bainbridge Island, Washington, adopted pursuant
to RCW 35A.63.220 and RCW 36.70A.390; amending and restating the temporary
six month moratorium imposed by Ordinance No. 2018-02 and Ordinance No.
2018-03 to clarify the activities to which the moratorium applies; setting forth
findings of fact in support of the moratorium; stating the effect on vested rights;
providing for exclusions; recognizing that a public hearing has been held within 60
days of the enactment of the moratorium; authorizing interpretative authority;
providing for severability; not changing the basis for the emergency declaration on
which the moratorium was imposed and later amended; and leaving the effective
date and the duration of the moratorium unchanged.
WHEREAS, within the express terms of the Growth Management Act, the Washington
State Legislature has specifically conferred upon the governing bodies of Washington cities the
right to establish and adopt moratoria related to land uses; and
WHEREAS, the City Council of the City of Bainbridge Island ("City") updated the
City's Comprehensive Plan in February of 2017; and
WHEREAS, the City Council has significant concerns about development and growth in
the City under current regulations in the context of the vision and goals of the City's
Comprehensive Plan, is discussing how to best accommodate growth and development in both
general and specific ways, and finds that without immediate action by the Council to preserve the
status quo, there are likely to be adverse impacts on the City and its citizens; and
WHEREAS, the City's Comprehensive Plan states as a Guiding Principle No. 2,
"Manage the water resources of the Island to protect, restore, and maintain their ecological and
hydrological functions and to ensure clean and sufficient groundwater for future generations,"
and consistent with that Guiding Principle, Guiding Policy 2.6 states "recognize the importance
of our water resources to present and future generations of Bainbridge Islanders and apply the
precautionary principle;" and
WHEREAS, the City Council's concerns regarding likely adverse impacts related to
growth and development under existing regulations require immediate attention by the Council
and City staff and include, but are not limited to, the following:
(1) Threatened harm to Bainbridge Island's fresh water aquifers due to continued
clearing of native forests and vegetation, as well as disturbance of native soils, which activities
are currently in the process of being addressed through the City's Critical Areas Ordinance
update process; and
(2) The loss of trees, forests, native vegetation, and soils, along with the full range of
important ecosystem services and values that they provide to the community, as expressed, for
example, by the City Council in the City's Comprehensive Plan, as well as concerns expressed
by the Planning Commission, Design Review Board, and the Ad Hoc Tree/LID Committee; and
Page 1 of 6
(3) Compliance with design review standards and guidelines, including as relates to,
for example, Policy LU 6.8 of the City's Comprehensive Plan, and regarding the role of the
Design Review Board, Hearing Examiner, Planning Commission, and City Council in the land
use development review and decision-making process, as well as related to meeting the goals of
the Comprehensive Plan more generally, including its guiding principle to "Preserve the Island's
special character," as well as other principles; and
(4) Serious challenges promoting affordable housing in a manner consistent with the
City's Comprehensive Plan; and
WHEREAS, based on these and related concerns, the City Council requires additional
time to review the regulations and policies at issue to ensure that the vision and goals of the
City's Comprehensive Plan are being met to the Council's satisfaction; and
WHEREAS, on January 9, 2018, the City Council enacted Ordinance No. 2018-02 and
thereby established a temporary emergency moratorium on the acceptance and processing of
certain Permit Applications, as defined in Section 2 of Ordinance No. 2018-02; and
WHEREAS, the City Council and City staff received feedback and comment from
individuals related to the moratorium and, based partly on that feedback and comment, the
Council determined that certain exclusions to the moratorium needed to be amended to clarify
the Council's intent regarding such exclusions; and
WHEREAS, on January 16, 2018, the Council enacted Ordinance No. 2018-03, which
amended Ordinance No. 2018-02 to clarify some of the exclusions; and
WHEREAS, the Council and City staff have received additional feedback and comment
from individuals related to the moratorium and, based partly on that feedback, the Council has
determined that further amendment is necessary to clarify which types of activities are subject to
the moratorium, and which activities are excluded from the moratorium; and
WHEREAS, the approach to the moratorium as set forth in Ordinance No. 2018-02 and
Ordinance No. 2018-03 was to broadly apply the moratorium to all "Permit Applications" as
defined in Section 2 of Ordinance No. 2018-02 and then to set forth several exclusions for
activities that were explicitly excluded from the moratorium; and
WHEREAS, this approach has not been as clear and effective as intended because it has
resulted in a lengthy list of exclusions that have caused some confusion in the community about
how particular exclusions apply to specific situations, and the Council has determined that a
better approach would instead be to simplify the moratorium by clearly stating what the
moratorium applies to and to limit the exclusions; and
WHEREAS, the moratorium is not intended to apply to certain affordable housing
projects and to permits and approvals for limited other uses, such as government facilities and
certain educational facilities; and
Page 2 of 6
WHEREAS, this ordinance is intended to amend Ordinance No. 2018-02 and Ordinance
No. 2018-03 by restating those ordinances in full with this ordinance, except with regard to the
effective date and duration provisions of the moratorium, such that the moratorium continues to
have an effective date of January 9, 2018, and this ordinance doesn't change the basis for the
declaration of emergency on which the moratorium was imposed; and
WHEREAS, the City possesses land use jurisdiction and regulatory authority over the
City's incorporated lands; and
WHEREAS, the moratorium promotes the public good and is necessary for the
protection of public health, property, safety, and welfare, and the public emergency on which this
moratorium was imposed continues to exist and this ordinance does not change the basis for that
declaration of emergency nor the effective date of the moratorium, which is January 9, 2018.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Amendment and Restatement of Ordinance No. 2018-02 and Ordinance
No. 2018-03. This ordinance hereby amends Ordinance No. 2018-02 and Ordinance No. 2018-03
and restates those ordinances, except with respect to the effective date and duration provisions of
those ordinances regarding the moratorium, and related to the basis for the emergency
declaration for the moratorium. To be clear, this ordinance does not change the basis for the
declaration of emergency that was declared upon the imposition of this moratorium, and this
ordinance maintains the effective date of the moratorium as January 9, 2018, and maintains the
duration of the moratorium, which is the six (6) month period that commenced on the effective
date of the moratorium (January 9, 2018).
Section 2. Findings of Fact. The recitals set forth above include and restate the City
Council's findings of fact in support of the moratorium as stated in Ordinance No. 2018-02 and
Ordinance No. 2018-03, and those findings are supplemented by additional findings of fact
herein. The combined findings of fact as restated in this ordinance do not change the basis for the
declaration of emergency that was initially declared upon the imposition of this moratorium.
Section 3. Imposition of Moratorium Amended and Restated. As authorized by the
police powers of the City as set forth, for example, in Article XI, Section 11, of the Washington
State Constitution, and pursuant to statutory authority set forth, for example, in RCW
36.70A.390 and RCW 35A.63.220, and unless expressly excluded under Section 4 and Section 5
of this ordinance, the City hereby amends and restates the currently existing temporary
moratorium to apply to and prohibit the following:
A. All applications for new short subdivisions (BIMC 2.16.070), new preliminary long
subdivisions (BIMC 2.16.125), and new large lot subdivisions (BIMC 2.16.080).
B. Structures, buildings, and land use permits and approvals in the R-1, R-2, R-0.4, and
Business/Industrial zones:
Page 3 of 6
(i) That will result in less than 65% of the subject property being retained as
native vegetation; or
(ii) That will result in reducing the native vegetation on the subject property by
any amount if that property had native vegetation existing on less than 65% of
the property as of the effective date of the moratorium.
(iii) Provided, that subsections (i) and (ii) do not prohibit structures, buildings, and
land use permits and approvals in the R-1, R-2, R-0.4, and Business/Industrial
zones that will result in land disturbance of 12,500 square feet or less on the
subject property.
(iv) Provided further, that this Section B does not apply to complete land use
applications (see BIMC Table 2.16.010-1) that were submitted prior to the
effective date of the moratorium, and to the resultant site work and associated
approvals related to such complete land use applications.
C. Major Site Plan and Design Review and Major Conditional Use Permit proposals that
are not otherwise subject to this moratorium and that did not, before the effective date
of the moratorium, have a pre -application conference on the Planning Department's
calendar.
Section 4. Effect on Vested Rights. The moratorium shall not apply to any rights that
legally vested under state law and City of Bainbridge Island regulations prior to the effective
date of the moratorium. Nothing in this ordinance shall be construed to extinguish, limit, or
otherwise infringe on any permit applicant's vested development rights as defined by state law
and City of Bainbridge Island regulations, provided that such a permit applicant has filed a
complete permit or other applicable land use application prior to the effective date of the
moratorium.
Section 5. Exclusions. The provisions of the moratorium shall not apply to any permits
or land use approvals that are specifically excluded by the Exclusions set forth in this ordinance.
These Exclusions, unless expressly modified by the City Council, are specifically limited to:
A. Permits and approvals for affordable housing projects that qualify as Housing Design
Demonstration Project (HDDP) Tier 3 projects pursuant to BIMC 2.16.020.Q. and
Table 2.16.020.Q-1.
B. Permits and approvals for government facilities and structures; private vocational
training institutions, preschools, K-12, and higher education facilities; wireless
communication facilities; and emergency medical and disaster relief facilities.
Section 6. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390, the
City Council conducted a public hearing on this moratorium on February 13, 2018. The Council
accepted public testimony as part of that public hearing and is adopting findings of fact as part of
this ordinance, and those findings of fact are incorporated herein.
Page 4 of 6
Section 7. Interpretive Authority. The City of Bainbridge Island Director of Planning
and Community Development, or designee, is hereby authorized to issue official interpretations
arising under or otherwise necessitated by this ordinance and the moratorium.
Section 8. Severability. Should any section, paragraph, sentence, clause, or phrase of this
ordinance, or its application to any person or circumstance, be declared unconstitutional or
otherwise invalid for any reason, or should any portion of this ordinance be preempted by state
or federal law or regulation, such decision or preemption shall not affect the validity of the
remaining portions of this ordinance or its application to other persons or circumstances.
Section 9. State Environmental Policy Act Exemption. Pursuant to WAC 197-11-880,
this moratorium, including this ordinance amending and restating the moratorium, are exempt
from the requirements of a threshold determination under the State Environmental Policy Act.
This ordinance does not change the basis of the declaration of emergency that was declared upon
the imposition of this moratorium.
Section 10. No Change to Basis for Declaration of Emergency; Effective Date;
Duration. This ordinance shall take effect and be in force five (5) days from and after its passage
and publication as required by law. Provided, that this ordinance is not intended to change the
basis of the emergency declarations of the two ordinances which this ordinance is amending and
restating, Ordinance No. 2018-02 and Ordinance No. 2018-03, as stated in Section 1 of this
ordinance. Pursuant to Matson v. Clark County Board of Commissioners, 79 Wn. App. 641
(1995), non -exhaustive underlying facts necessary to support the emergency declarations
adopted as part of the enactment of this moratorium were included in the "Whereas" clauses of
Ordinance No. 2018-02 and Ordinance No. 2018-03, and have been restated and supplemented in
this ordinance amending and restating the moratorium, and those "Whereas" clauses herein are
adopted as findings of fact, as also described in Section 2 above. This ordinance amending and
restating the moratorium shall remain effective for the six (6) month period as established for the
moratorium, which moratorium has an effective date of January 9, 2018, unless terminated
earlier by the City Council. The Council may, at its sole discretion, renew the moratorium for
one or more six (6) month periods in accordance with state law. This ordinance or a summary
thereof consisting of the title shall be published in the official newspaper of the City.
PASSED by the City Council this 15th day of February, 2018.
APPROVED by the Mayor this 15th day of February, 2018.
Kol Medina, Mayor
Page 5 of 6
ATTEST/AUTHENTICATE:
Christine Brown, City Clerk
FILED WITH THE CITY CLERK February 15, 2018
PASSED BY THE CITY COUNCIL February 15, 2018
PUBLISHED: February, 2018
EFFECTIVE DATE: February, 2018
ORDINANCE NO: 2018-05
Page 6 of 6