ORD NO. 2018-43 AMENDING THE MORATORIUMORDINANCE NO. 2018-43
AN ORDINANCE of the City of Bainbridge Island, Washington, adopted pursuant
to RCW 35A.63.220 and RCW 36.70A.390; amending Ordinance No. 2018-41 to
narrow the development moratorium; providing for severability; and leaving the
effective date and duration of the moratorium unchanged.
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 received additional feedback and comment from
individuals related to the moratorium and, based partly on that feedback, the Council determined
that further amendment was necessary to clarify which types of activities are subject to the
moratorium, and which activities are excluded from the moratorium; and
WHEREAS, on February 15, 2018, the Council enacted Ordinance No. 2018-05, which
amended and restated Ordinance No. 2018-02 and Ordinance No. 2018-03; and
WHEREAS, based on additional information and consideration related to educational
facilities and preschools, as well as related to the applicability of the moratorium in the Mixed
Use Town Center/Central Core Overlay District, on March 13, 2018, the Council approved
Ordinance No. 2018-09 to further clarify which types of activities are subject to the moratorium,
and which activities are excluded from the moratorium; and
WHEREAS, this moratorium was imposed, in part, to allow the City Council and City
staff adequate time to complete the Critical Areas Ordinance Update process, and to address the
Council's concerns about the City's development review process, standards, and guidelines, as
well as regarding affordable housing related issues; and
WHEREAS, the Council adopted the Critical Areas Ordinance Update (Ordinance No.
2018-01) on February 27, 2018, and the updated Critical Areas Ordinance took effect on April
23, 2018; and
WHEREAS, critical areas within the City's shoreline jurisdiction are regulated by the
City's shoreline master program (see, e.g., Chapter 16.12 BIMC, RCV'+r' 36.70A.480(3)(b)); and
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WHEREAS, integration of applicable critical areas regulations into the shoreline master
program is essential to ensuring adequate protection of critical areas within the shoreline
jurisdiction and no net loss of shoreline ecological functions; and
WHEREAS, regulations for critical areas within the City's shoreline jurisdiction are in
the process of being updated through an amendment of the City's shoreline master program
consistent with the Shoreline Management Act and that amendment process was ongoing as of
July 9, 2018, which was the original date that the moratorium was set to expire; and
WHEREAS, the City Council approved Ordinance 2018-14 on April 24, 2018, amending
the development moratorium in order to have the provisions of Section 3.13. only apply within
the City's shoreline jurisdiction areas (Chapter 16.12 BIMC); and
WHEREAS, a number of moratorium priorities were identified at a joint meeting of
the City's Design Review Board and Planning Commission on February 22, 2018, including
the following:
(1) Revise review procedures for preliminary subdivisions to include the
Design Review Board and Planning Commission in process; and
(2) Analyze alternatives to decision-making authority for the Design Review
Board, Planning Commission, and Hearing Examiner for subdivisions, conditional use permits,
and site plan and design review; and
(3) Identify specific development standards to review/revise in Chapters 18.12
and 18.15 of the Bainbridge Island Municipal Code; and
(4) Initiate rewrite of subdivision design standards in Chapter 17.12 of the
Bainbridge Island Municipal Code; and
WHEREAS, at the April 3, 2018, City Council study session, the City's Department of
Planning and Community Development provided a briefing on the Design Review Board and
Planning Commission joint meeting wherein the Council authorized staff to proceed with a work
plan addressing the priorities identified at the joint meeting; and
WHEREAS, on May 7 and 21, June 4 and 19, July 16, August 6 and 20, and on
September 4, 2018, the City's Design Review Board discussed alternatives for revisions to the
City's subdivision standards, dimensional standards, and land use review procedures; and
WHEREAS, during May through November 2018, the City's Planning Commission
discussed alternatives for revisions to the City's subdivision guidelines, standards, dimensional
standards, and land use review procedures; and
WHEREAS, the City's Planning Commission has completed its review of land use
review procedures and forwarded the recommendations on these issues to the City Council, but
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has not completed its review of revisions to the City's subdivision guidelines, standards, and
dimensional standards; and
WHEREAS, City staff, working with the Design Review Board, has selected a
consultant team to provide professional services to update the City's Design Guidelines (BIMC
18.18.030), which is work that is not expected to be completed until the end of July 2019; and
WHEREAS, each of the multiple Design Review Board and Planning Commission
meetings as described above included an opportunity for public comment on the alternatives for
revisions to the City's subdivision guidelines, standards, dimensional standards, and land use
review procedures; and
WHEREAS, the City provided legal background on the roles of land use bodies,
presented in a memorandum from attorney James E. Haney (outside legal counsel for the City)
entitled, "Roles of City Council, Planning Commission, Design Review Board, and Hearing
Examiner in Land Use Permits, " dated June 1, 2018, and the City Council had a special
workshop related to land use review procedures on August 27, 2018; and
WHEREAS, on June 12, 2018, the City Council authorized the execution of a
professional services agreement to conduct an economic market analysis and feasibility study
regarding a new inclusionary zoning program and updates to the City's Transfer of Development
Rights program, both of which address affordable housing related issues, and on October 2,
2018, the Council received a project update briefing, and a final report is expected to be
presented to the Council in December 2018; and
WHEREAS, the Affordable Housing Task Force presented its final report to the City
Council on July 24, 2018, and the Council discussed the recommendations more thoroughly on
August 21, 2018; and
WHEREAS, on February 27, 2018, the City Council was provided with a moratorium
work program; and
WHEREAS, on April 10, May 22, June 5, June 19, July 17, August 21, September 4 and
18, October 2 and 16, and November 6, 2018, the City Council was provided moratorium work
program status report updates; and
WHEREAS, on June 26, 2018, the City Council held a public hearing and approved
Ordinance 2018-23, extending the development moratorium for another 90 days until October 9,
2018; and
WHEREAS, on September 25, 2018, the City Council held a public hearing and
approved Ordinance 2018-41, and thereby extended the development moratorium for another six
(6) months until April 8, 2019, unless the Council takes further action before such date, and in so
doing narrowed the moratorium to remove two -lot short subdivisions in which there is an
existing single-family residence from the moratorium; and
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WHEREAS, on October 16, 2018, the City Council discussed integrating critical area
regulations into the Shoreline Master Program (Chapter 16.12 BIMC) and made the policy
decision to not apply new Aquifer Recharge Protection Area regulations (BIMC 16.20. 100)
within the City's shoreline jurisdiction areas; and
WHEREAS, as a result of that policy decision, and the City Council's affirmation on
October 23, 2018, that the moratorium should be narrowed in that manner, the Council directed
staff to prepare an ordinance to entirely remove Section 3.13. (which, in effect, applied the
Aquifer Recharge Protection Area regulations in the City's shoreline jurisdiction areas) from the
moratorium; and
WHEREAS, on October 23, 2018, the City Council discussed additional revisions to the
development moratorium, including excluding from the moratorium certain permit applications
for development in the Business/Industrial zoning district, and the Council directed staff to
prepare an ordinance to narrow the moratorium accordingly; and
WHEREAS, on October 23, 2018, the City Council also discussed potentially further
narrowing provisions of the moratorium related to applications for new short subdivisions that
the Council had previously narrowed, and the Council decided to not take such action at this time
pending the Planning Commission's ongoing but not yet completed work related to subdivisions,
including new subdivision design guidelines and revised subdivision standards and review
procedures; and
WHEREAS, on October 23, 2018, the City Council also discussed issues related to
making condominiums out of accessory dwelling units ("ADUs") and common ownership of
ADUs, and the Council directed staff to work on possible revisions to the BIMC to allow the
Council to further consider the common ownership issue related to ADUs; and
WHEREAS, although the City has been working to address the land use issues identified
in the development moratorium, as described above, the work is ongoing and not yet completed;
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, except as described above, 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. Findings of Fact. The recitals set forth above are hereby adopted as additional
and supplemental findings of fact to the City Council's initial findings of fact in support of the
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moratorium, as established by Ordinance Nos. 2018-02, 2018-03, 2018-05, 2018-09, 2018-14,
2018-23, and 2018-41.
Section 2. Moratorium Amended. Section 3 of Ordinance No. 2018-05, as amended by
Ordinance Nos. 2018-09, 2018-14, and 2018-41, is hereby further amended as follows related to
the activities to which the moratorium applies:
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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. Provided, that the moratorium does not apply to Major Site Plan and Design
Review and Major Conditional Use Permit proposals for properties located in the
Mixed Use Town Center/Central Core Overlay District or the Business/Industrial
District.
Section 3. Moratorium Work Plan. As provided for under RCW 35A.63.220 and RCW
36.70A.390, the City may renew a moratorium for one or more six-month periods if a work plan
has been developed, a public hearing has been held, and findings of fact have been made, and the
City has thereby previously extended the moratorium as described herein based on the work plan
that has been developed and the findings of fact that have been made in this ordinance and the
previous ordinances related to this moratorium.
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.
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 declarations stated in the seven moratorium ordinances which preceded
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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. Provided, that the moratorium does not apply to Major Site Plan and Design
Review and Major Conditional Use Permit proposals for properties located in the
Mixed Use Town Center/Central Core Overlay District or the Business/Industrial
District.
Section 3. Moratorium Work Plan. As provided for under RCW 35A.63.220 and RCW
36.70A.390, the City may renew a moratorium for one or more six-month periods if a work plan
has been developed, a public hearing has been held, and findings of fact have been made, and the
City has thereby previously extended the moratorium as described herein based on the work plan
that has been developed and the findings of fact that have been made in this ordinance and the
previous ordinances related to this moratorium.
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.
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 declarations stated in the seven moratorium ordinances which preceded
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this ordinance, Ordinance Nos. 2018-02, 2018-03, 2018-05, 2018-09, 2018-14, 2018-23, and
2018-41, except as described in the "Whereas" clauses 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 were restated and supplemented in Ordinance No. 2018-05 and Ordinance No.
2018-09, and Ordinance Nos. 2018-14, 2018-23, and 2018-41, as well as in this ordinance, and
those "Whereas" clauses are adopted as findings of fact. This ordinance amending the
moratorium shall remain effective for the period as established for the moratorium, which is
currently scheduled to expire on April 8, 2019, unless terminated earlier by the City Council.
This ordinance does not change the effective date of the moratorium, which is January 9, 2018.
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 13th day of November, 2018.
APPROVED by the Mayor this 13th day of November, 2018.
Kol Medina, Mayor
ATTEST/AUTHENTICATE:
r
Christine Brown, er
FILED WITH THE CITY CLERK November 8, 2018
PASSED BY THE CITY COUNCIL November 13, 2018
PUBLISHED: November 16, 2018
EFFECTIVE DATE: November 21, 2018
ORDINANCE NO: 2018-43
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