ORD NO. 2018-42 AMENDING CHAPTER 16.32 BIMC TO ADD ADDITIONAL CRITERIA FOR LANDMARK TREESORDINANCE NO. 2018-42
AN ORDINANCE of the City of Bainbridge Island, Washington, adopted
pursuant to RCW 36.70A.390; amending Chapter 16.32 of the Bainbridge
Island Municipal Code related to the preservation, protection, and
retention of Landmark Trees located on Bainbridge Island; stating the
effect on vested rights; authorizing interpretative authority; providing for
severability; and leaving the effective date and duration of the interim
official control 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 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
WHEREAS, the City possesses land use jurisdiction and regulatory authority over the
City's incorporated lands; and
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WHEREAS, on June 26, 2018, the City Council adopted Ordinance No. 2018-25, which
imposed an interim official control to promote the public good and was necessary for the
protection of public health, property, safety, and welfare; and
WHEREAS, in adopting Ordinance No. 2018-25, the City Council found that a public
emergency exists requiring that the City's interim official control come into effect immediately
upon adoption; and
WHEREAS, on August 14, 2018, the City Council held a public hearing on Ordinance
No. 2018-25; and
WHEREAS, the City Council approved Ordinance No. 2018-32 on August 21, 2018, to
change the procedure through which an Application for Removal of a Landmark Tree is
reviewed; and
WHEREAS, in adopting Ordinance No. 2018-32, the City Council found that a public
emergency exists requiring that the City's amendment to the interim official control come into
effect immediately upon adoption; and
WHEREAS, the City Council held a public hearing on Ordinance No. 2018-32 on
September 25, 2018; and
WHEREAS, on September 4, 2018, the City Council discussed the Landmark Tree
regulations and tree regulations more broadly and requested some amendments to Chapter 16.32
BIMC, Protection of Landmark Trees; and
WHEREAS, the interim official control promotes the public good and is necessary for
the protection of public health, property, safety, and welfare, and the public emergency on which
the interim official control was imposed continues to exist and this ordinance does not change
the basis for that declaration of emergency nor the effective date of the interim official control,
which is June 26, 2018.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Interim Official Control Amended. Chapter 16.32 of the Bainbridge Island
Municipal Code is amended 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.
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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:
Species
Size (Greater than or equal
to)
Birch (Betula a ri era)
30"
Beech Fa us randi olia
36"
Catalpa (Catalpa speciosa)
36"
American Elm (Ulmus
30"
americana)
Douglas Fir (Pseudotsuga
40"
menzesii)
Grand Fir Abies randis
40"
Horsechestnut (Aesculus
40"
hippocastanum)
Western Hemlock (Tsuga
30"
hetero h lla)
Black locust (Robinia
30"
seudoacacia)
Lombardy poplar (Populus
38"
nigra)
Pacific Madrone (Arbutus
24"
menzesii)
Bigleaf Maple (Acer
36"
macro h lum)
Silver maple (Acer
36"
saccharinum)
Monkey Puzzle tree
36"
Araucaria araucana
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Monterey pine (Pinus
30"
radiata)
Oregon White Oak
30"
( uercus arr any
Pacific Yew Taxus
20"
brevi olid
Pin Oak (Quercus
30"
palustris)
Red Oak JQuercus rubra)
38"
Ponderosa pine (Pinus
30"
ponderosa)
Western White pine (Pinus
30"
monticola)
Sitka Spruce (Picea
36"
sitchensis)
Sycamore (Platanus
occidentalis)
36"
English walnut (Juglans
30"
regia)
Western Red Cedar (Thuja
! 30"
licata
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 Planning Director.
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 Department of Planning and Community
Development.
C. Upon receipt of an Application for Removal of a Landmark Tree, the Planning
Director will review the application materials and consider the request based upon
the criteria outlined in this chapter and any other City regulations that apply
to the
tree requested for removal such as, but not limited to, Chapter 16,12 BIMC,
Shoreline Master Program. Cha ter 16.20 BIMC Critical Areas, -and BIMC
18.15.010,Landscapin2, Screening and Tree Retention. Protection and
Replacement.
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D. The Planning Director shall approve the removal, deny the removal, or request
additional information. The Planning Director shall only approve the removal of a
Landmark Tree if all other applicable City regulations are met and 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.
In deciding whether the removal of a Landmark Tree is necessary under BIMC
16.32.030.D.1 or BIMC 16.32.030.D.2, the Planning Director shall consider all
land use regulations applied to the subject property, such as: Chapter 15.19
BIMC Site Assessment Review, Chapter 16.12 BIMC, Shoreline Master
Program, Cha ter 16.20 BIMC. Critical Areas or any other tree retention
regulations applied through a land use permit.
E. If the Planning Director 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 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 (E)(1) of this section.
F. In lieu of planting the Replacement Trees prescribed in subsection (E) 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
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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 (E) 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 Planning Director; 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 Planning Director subsequently approves the removal pursuant to this
chapter.
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 Planning Director will be in violation of this chapter.
16.32.050 Appeals.
A. The Planning Director's decision on an Application for Removal of a Landmark
Tree may be appealed to the hearing examiner as described in BIMC
2.16.020.P.1.
B. All appeals must be filed within fourteen (14) days following the issuance of the
Planning Director's decision on the application.
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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 Planning Director. 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 2. Effect on Vested Rights. The amendments to the interim official control
imposed under 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 3. 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.
Section 4. 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.
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Section 5. 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 declaration stated in Ordinance No. 2018-25, which preceded this
ordinance. Pursuant to Matson v. Clark County Board of Commissioners, 79 Wn. App. 641
(1995), non -exhaustive underlying facts necessary to support this emergency declaration were
included in the "Whereas" clauses in Ordinance No. 2018-25 and were restated in this ordinance,
and those "Whereas" clauses are adopted as findings of fact. This ordinance amending the
interim official control shall remain effective for the six (6) month period as established for the
interim official control, which interim official control has an effective date of June 26, 2018,
unless terminated earlier by the City Council. 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 9th day of October, 2018.
APPROVED BY THE MAYOR this 9th day of October, 2018.
ATTEST/AUTHENTICATE:
Christine Brown, x erk
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
Kol Medina, Mayor
September 21, 2018
October 9, 2018
October 12, 2018
October 17, 2018
2018-42
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