ORD NO. 2018-25 IMPOSING AN INTERIM OFFICIAL CONTROL RELATED TO LANDMARK TREESORDINANCE NO. 2018-25
AN ORDINANCE of the City of Bainbridge Island, Washington, adopted pursuant
to RCW 36.70A.390; imposing an interim official control in the form of a new
chapter to Title 16 of the Bainbridge Island Municipal Code related to the
preservation, protection, and retention of Landmark Trees located on Bainbridge
Island; specifying criteria for identification of Landmark Trees; stating the effect on
vested rights; recognizing that a public hearing will be held within 60 days;
authorizing interpretative authority; providing for severability; declaring an
emergency; and establishing an immediate effective date.
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 interim official controls 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 unless the City acts immediately to preserve the status
quo, there are likely to be adverse impacts on the City and its citizens; and
WHEREAS, land clearing and development activities have resulted in the removal and
loss of Landmark Trees on Bainbridge Island; and
WHEREAS, Landmark Trees, because of their age, size, and condition are recognized as
having exceptional value in contributing to the character of the community; and
WHEREAS, the City has received numerous public comments expressing concern
regarding the loss of Landmark Trees on Bainbridge Island; and
WHEREAS, the Planning Commission, Design Review Board, and the Ad Hoc
Tree/LID Committee have expressed concern regarding the loss of trees on Bainbridge Island;
and
WHEREAS, the preservation of trees is a community value supported by the policies
and goals of 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
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WHEREAS, the City possesses land use jurisdiction and regulatory authority over the
City's incorporated lands; and
WHEREAS, the interim official control imposed herein promotes the public good and is
necessary for the protection of public health, property, safety, and welfare. A public emergency
exists requiring that the City's interim official control to become effective immediately upon
adoption.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Findings of Fact. The recitals set forth above are hereby adopted as the City
Council's initial findings of fact in support of the interim official control established by this
ordinance. The City Council may, in its discretion, adopt additional findings after the public
hearing referenced in Section 4 below.
Section 2. Interim Official Control Imposed. A new Chapter 16.32 is added to Title 16
of the Bainbridge Island Municipal Code, to read as follows:
Chapter 16.32 Protection of Landmark Trees
16.32.010 Definitions
A. "City Attorney" means the city attorney of the City of Bainbridge Island, or their
designee.
B. "Diameter Breast Height" means the diameter of a tree measured at 4.5 feet above
the ground on the uphill side of the tree.
C. "Landmark Trees" means trees, located on Bainbridge Island, that are unique
because of their age, size, species, historical significance, or aesthetic quality and
meet the criteria established by this chapter.
D. "Planning Director" means the director of the Planning and Community
Development Department of the City of Bainbridge Island, or their designee.
E. "Replacement Tree" means a tree that is of a species native and indigenous to the
site where a Landmark Tree was removed and is a minimum size of six feet in
height measured from top of the root flare, with a minimum trunk diameter of one
inch measured at four inches above the top of the root flare for both evergreen and
deciduous trees.
F. "Size" means the Diameter Breast Height of a tree.
16.32.020 Landmark Tree Criteria.
Landmark Trees are trees that meet the following criteria for their species:
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Species
Size (Greater than or equal
to
Birch (Betulapapyrffiera
30"
Beech Fa us andifolia)
36"
Catalpa (Catalpa speciosa)
36"
American Elm (Ulmus
30"
americana
Douglas Fir (Pseudotsuga
40"
menzesii)
Grand Fir Abies andis)
40"
Horsechestnut (Aesculus
40"
hi ocastanum)
Western Hemlock (Tsuga
30"
heterophylla)
Black locust (Robinia
30"
pseudoacacia)
Lombardy poplar (Populus
38"
nigra)
24"
Pacific Madrone (Arbutus
menzesii)
Bigleaf Maple (Acer
36"
macrophylum)
Silver maple (Acer
36"
saccharinum)
Monkey Puzzle tree
36"
Araucaria araucana)
Monterey pine (Pinus
30"
radiata)
Oregon White Oak
30"
(Quercus arr ana
Pin Oak (Quercus
30"
alustris
Red Oak (Quercus rubra)
38"
Ponderosa pine (Pinus
30"
ponderosa)
Western White pine (Pinus
30"
monticola
Sitka Spruce (Picea
36"
sitchensis)
Sycamore (Platanus
36"
occidentalis)
English walnut (Juglans
30"
regia)
Western Red Cedar (Thuja
30"
licata)
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Coast Redwood (Sequoia 30"
sem ervirens)
Japanese Laceleaf Maple 12"
16.32.030 Landmark Tree Retention.
A. Except as otherwise allowed under this chapter, no person, corporation, or other
legal entity shall remove a Landmark Tree without having obtained approval from
the City Council.
B. Prior to the removal of a Landmark Tree, any person, corporation, or other legal
entity seeking to remove a Landmark Tree must submit an Application for
Removal of a Landmark Tree to the Planning Director.
C. Upon receipt of an Application for Removal of a Landmark Tree, the Planning
Director will prepare a written recommendation on the removal for the City
Council.
D. Within sixty (60) days following the receipt by the Planning Director of an
Application for Removal of a Landmark Tree, the City Council will hold a public
hearing on the proposed removal.
E. Following the public hearing and receipt of the Planning Director's
recommendation, the City Council shall approve the removal, deny the removal,
or request additional information. The City Council shall only approve the
removal of a Landmark Tree upon a finding that at least one of the following
criteria is met:
1. The removal is necessary to enable construction on or reasonable use of
the property, and no other alternative is feasible; or
2. The removal is necessary to maintain utilities, access, or fulfill the terms
of an easement or covenant recorded prior to the adoption of the ordinance
codified in this chapter; or
3. The tree is diseased, dead, or otherwise determined to be a hazardous tree
as determined by a qualified professional pursuant to BIMC
18.15.010.C.1.c.
F. If the City Council grants an application for removal of a Landmark Tree upon a
finding that the removal is necessary to enable construction on or reasonable use
of the property, and no other alternative is feasible, then the property owner that
submitted the application shall be required to provide mitigation through the
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planting of Replacement Trees on the property from which the Landmark Tree
was removed in accordance with the following:
1. The quantity of Replacement Trees is calculated by multiplying the
Diameter Breast Height of the subject Landmark Tree by fifty percent
(50%) to establish the number of replacement inches; and
2. The total number of Replacement Trees is determined by the total caliper
inches of Replacement Trees equaling or exceeding the required tree
replacement inches established in subsection (F)(1) of this section.
G. In lieu of planting the Replacement Trees prescribed in subsection (F) of this
section, an applicant may satisfy the tree replacement requirements by:
1. Planting at least three Replacement Trees on the property from which the
Landmark Tree was removed; and
2. Contributing to the Bainbridge Island Tree Fund at a rate of $500.00 per
each replacement inch not accounted for in the planting of Replacement
Trees; and
3. The sum of the tree replacement inches accounted for by contributing to
the Bainbridge Island Tree Fund and the total caliper inches of the
Replacement Trees planted shall not be less than the total replacement
inches calculated in subsection (F) of this section.
16.32.040 Emergencies.
A. In emergency situations involving immediate danger to life or real property,
removal of a Landmark Tree is permitted without first obtaining approval from
the City Council; Provided, that the following conditions are satisfied:
1. The person, corporation, or other legal entity that removed the Landmark
Tree submits an Application for Removal of a Landmark Tree under this
chapter within fourteen (14) days after the emergency situation is
stabilized; and
2. The person, corporation, or other legal entity that removed the Landmark
Tree provides, within fourteen (14) days after the emergency situation is
stabilized, the city with documentation establishing the existence of the
emergency situation, with such documentation including at least four high
resolution photographs evidencing the existence of the emergency
situation; and
3. The City Council subsequently approves the removal pursuant to this
chapter.
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B. If the conditions of subsection (A) of this section are not satisfied, the person,
corporation, or other legal entity that removed the Landmark Tree without first
obtaining approval from the City Council will be in violation of this chapter.
16.32.050 Appeals.
A. The City Council's decision on an application for removal of a Landmark Tree
may be appealed to the Kitsap County Superior Court in accordance with Chapter
36.70C RCW.
B. All appeals must be filed within twenty-one (21) days following the issuance of
the City Council's decision on the application.
16.32.060 Violations and Penalties.
A. This chapter shall be enforced, and penalties for violations of this chapter will be
imposed, pursuant to Chapter 1.26 BIMC, except that no Notice of Infraction may
be issued under Chapter 1.26 BIMC for a violation of this chapter. In addition to
Notices of Violation issued under BIMC 1.26.050 or BIMC 1.26.060, BIMC
1.26.070 will also govern the review and appeal of any Notice of Violation issued
under Chapter 1.26 BIMC for a violation of this chapter.
B. In addition to the civil penalties imposed under BIMC 1.26.090, an additional
civil penalty will be imposed on any person, corporation, or other legal entity that
removes a Landmark Tree without prior approval of the City Council. This
additional civil penalty will be in the amount of $25,000 for each Landmark Tree
removed. The City Attorney will take appropriate action to collect this additional
civil penalty.
C. In the event of a conflict between the requirements of this chapter and any other
requirement of the Bainbridge Island Municipal Code, this chapter will govern
and control.
Section 3. Effect on Vested Rights. The interim official control imposed under Section 2
of this ordinance shall apply prospectively only. 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 application before the effective date of this ordinance.
Section 4. Public Hearing. Pursuant to RCW 36.70A.390, the City Council shall hold a
public hearing at a City Council meeting within 60 days of adoption of this ordinance in order to
take public testimony and to consider adopting further findings of fact.
Section 5. 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.
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Section 6. 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 7. Declaration of Emergency; Effective Date; Duration. This ordinance, as a
public emergency ordinance necessary for the protection of the public health, public safety,
public property, and public peace, shall take effect and be in full force immediately upon its
adoption. Pursuant to Matson v. Clark County Board of Commissioners, 79 Wn. App. 641
(1995), non -exhaustive underlying facts necessary to support this emergency declaration are
included in the "Whereas" clauses above, all of which are adopted by reference as findings of
fact as if fully set forth herein. This interim official control shall take effect immediately, and
shall remain effective for six (6) months, unless terminated earlier by the City Council. Provided,
that the Council may, at its sole discretion, renew the interim official control for one or more six
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 26th day of June, 2018.
APPROVED BY THE MAYOR this 26th day of June, 2018.
Kol Medina, Mayor
ATTEST/AUTHENTICATE:
V t) F: P F10A
0107 " U Ty
Christine rown, i Clerk a4rkml MY apolAl
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
June 22, 2018
June 26, 2018
June 29, 2018
June 26, 2018
2018-25
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