ORD NO. 2020-24 EXTENDING THE DEVELOPMENT MORATORIUM
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ORDINANCE NO. 2020-24
AN ORDINANCE of the City of Bainbridge Island, Washington, adopted pursuant
to RCW 35A.63.220 and RCW 36.70A.390; amending Ordinance No. 2020-09;
providing for severability; leaving the effective date of the moratorium unchanged;
and extending the moratorium for six months to April 3, 2021.
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, RCW 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 that process
continues to be ongoing; and
WHEREAS, the City Council approved Ordinance No. 2018-14 on April 24, 2018,
amending the development moratorium in order to have the provisions of Section 3.B. 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 April 2 and 23, May 7 and 21, June 4 and 18, August 6, 13, and 20,
September 4 and 17, and October 15, 2018, the City’s Design Review Board discussed
alternatives for revisions to the City’s land use review procedures and/or subdivision design
guidelines; and
WHEREAS, on March 22, May 10, June 7, 14, and 21, July 12 and 26, August 9, 23,
and 30, September 13 and 27, October 25, November 8 and 29, and December 13, 2018, as well
as on January 10, and February 13 and 28, 2019, the City’s Planning Commission discussed
alternatives for revisions to the City’s land use review procedures, subdivision design guidelines,
and/or subdivision standards; and
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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, the City’s Planning Commission completed their review of land use review
procedures and forwarded their recommendations on those issues to the City Council, and on
December 11, 2018, the Council enacted Ordinance No. 2018-20 related to revisions and updates
to the City’s land use review procedures; and
WHEREAS, in addition to updating standards, guidelines, and land use procedures,
another moratorium work plan item was to update the decision criteria for Site Plan and Design
Review and Conditional Use Permits to ensure that future development is appropriately and
thoroughly analyzed; and
WHEREAS, together with the land use review procedural changes approved by
Ordinance No. 2018-20, amending the Site Plan and Design Review and Conditional Use
Permits decision criteria implements Land Use Element Policies LU 6.5 and LU 6.8; and
WHEREAS, the Planning Commission discussed Ordinance No. 2019-24 modifying the
decision criteria for Site Plan and Design Review during five meetings in 2019, including on
March 14, August 8 and 22 (public hearing), September 5 and 26, and October 10, 2019, and
recommended approval to the City Council; and
WHEREAS, the City Council discussed Ordinance No. 2019-24 on November 26, 2019
and again on December 10, 2019 and approved the ordinance on December 10, 2019; and
WHEREAS, as part of the Planning Commission’s review and consideration of the
City’s subdivision review procedures, design guidelines, and standards, the Commission
reviewed the proposed ordinance related to such regulations, Ordinance No. 2019-03; and
WHEREAS, on February 13, 2019, and continuing to February 28, 2019, the Planning
Commission conducted a public hearing on Ordinance No. 2019-03, and subsequently forwarded
the proposed ordinance and their recommendations to the City Council; 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/or land use
review procedures; and
WHEREAS, the City Council reviewed and considered proposed updates to the City’s
subdivision regulations at regularly scheduled meetings on September 4 and 11, October 9, and
December 4, 2018, and January 22, 2019; and
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WHEREAS, the City Council considered the Planning Commission’s recommendations
related to proposed updates to the City’s subdivision regulations as included in Ordinance No.
2019-03, including at Council meetings on March 19, April 2 and 16, May 28, and July 23, 2019;
WHEREAS, the City Council held a public hearing on Ordinance No. 2019-03 on
August 27, 2019 and September 24, 2019; and
WHEREAS, the City Council approved Ordinance No. 2019-03 on September 24, 2019
related to updates to the City’s subdivision regulations, and the ordinance went into effect on
October 24, 2019; and
WHEREAS, City staff worked with the Design Review Board and a consultant team
related to updating the City’s Design Guidelines (BIMC 18.18.030) more generally (i.e., the
design guidelines that aren’t included in the separate effort described above related to design
guidelines for subdivisions), and that work was completed in August 2019; and
WHEREAS, on January 30 and May 22, 2019, the City hosted public meetings on the
design review regulations update; and
WHEREAS, on March 18, April 1, May 6, June 17, and July 15, 2019, the City’s Design
Review Board discussed the design review regulations update; and
WHEREAS, at the February 5 and June 4, 2019 City Council study sessions, the City’s
consultant, Framework, provided briefings on the design review regulations update; and
WHEREAS, the Planning Commission held a public hearing on Ordinance No. 2019-25
(related to design review regulations) on September 5, 2019; and
WHEREAS, City staff provided the Planning Commission’s September 5, 2019
recommendations related to the design review regulations update to the City Council for
consideration at the Council’s September 17, 2019 study session; and
WHEREAS, the City Council held a public hearing on Ordinance No. 2019-25 and
subsequently approved the ordinance on September 24, 2019, after considering the input it
received related to Ordinance No. 2019-25 prior to adopting the ordinance; 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
WHEREAS, on July 24, 2018, the Affordable Housing Task Force (“AHTF”) presented
its final report to the City Council and the Council discussed the recommendations more
thoroughly on August 21, 2018; and
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WHEREAS, on October 2 and December 4, 2018, the City Council received a project
update on the economic market analysis from the consultant (ECONorthwest/Forterra) related to
inclusionary zoning and possible updates to the City’s Transfer of Development program; and
WHEREAS, on February 19, 2019, the City Council reviewed and provided direction to
staff related to the ECONorthwest/Forterra final report and the AHTF report recommendations,
and the Council discussed the status of the Council’s Affordable Housing Ad Hoc Committee;
and
WHEREAS, City staff members continue to work on prioritizing and organizing work
on the inclusionary zoning and other AHTF report recommendations which were endorsed by the
Council at its February 19, 2019, meeting and work is ongoing in this effort; and
WHEREAS, the City Council had policy discussions on September 17, 2019 and
February 4, 2020 regarding inclusionary zoning or multifamily property tax exemption
programs; 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, November 6 and 20, and December 4, 2018, as well as on January 15,
February 5 and 19, March 5 and 19, April 2 and 16, May 7 and 21, June 4 and 18, July 2 and 16,
August 6 and 20, September 3 and 17, November 5, and December 3, 2019, and January 7,
February 4, March 3, April 7, May 5, June 2, July 7, August 4, and September 1, 2020, the City
Council was provided further moratorium work program status report updates; and
WHEREAS, on June 26, 2018, the City Council held a public hearing and approved
Ordinance No. 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 No. 2018-41, and thereby extended the development moratorium for
another six (6) months, 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
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.B. (which, in effect, applied the
Aquifer Recharge Protection Area regulations in the City’s shoreline jurisdiction areas) from the
moratorium; and
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WHEREAS, on October 23, 2018, the City Council discussed additional revisions to the
development moratorium, including related to 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 that
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, the City Council discussed requiring common ownership for new ADUs at
its meetings on June 18, July 23, September 10, and October 22, 2019, and directed staff to begin
legislative review with the Planning Commission to adopt such regulations via draft Ordinance
No. 2019-09; and
WHEREAS, the Planning Commission discussed Ordinance No. 2019-09 on December
12, 2019 and then held a public hearing on Ordinance No. 2020-02 (formerly Ordinance No.
2019-09) on January 9, 2020; and
WHEREAS, on January 9, 2020, the Planning Commission created a temporary
subcommittee to further discuss these topics and other ADU regulations, and that subcommittee
submitted recommended changes related to Ordinance No. 2020-02 to the Planning Commission
at its February 13, 2020 meeting; and
WHEREAS, the Planning Commission endorsed the subcommittee recommendations on
February 13, 2020, and reviewed amended Ordinance No. 2020-02 on February 27, 2020; and
WHEREAS, the Planning Commission held another public hearing on Ordinance No.
2020-02 on March 12, 2020, and after closing the public hearing, recommended approval of
Ordinance No. 2020-02 to the City Council; and
WHEREAS, on November 13, 2018, the City Council approved Ordinance No. 2018-43,
and thereby narrowed the moratorium as requested by the Council and described above related to
entirely removing Section 3.B. (which, in effect, applied the Aquifer Recharge Protection Area
regulations in the City’s shoreline jurisdiction areas) from the moratorium, and broadening an
exclusion related to certain Major Site Plan and Design Review and Major Conditional Use
Permit proposals to include in that exclusion such proposals for properties located in the
Business/Industrial District; and
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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
on affordable housing and some other moratorium work plan items; and
WHEREAS, on September 3 and 10, 2019, the City Council discussed the moratorium,
including the option of extending it for two additional months (to December 3, 2019) to allow
time for public outreach to educate the public about the new subdivision standards and design
review regulations and to possibly extend a more narrow form of the moratorium beyond
December 3, 2019, in order to adopt affordable housing requirements; and
WHEREAS, it was anticipated that an extended moratorium would be narrowed to apply
only to certain types of development in the Winslow Master Plan Study Area, with some
exceptions; and
WHEREAS, on September 24, 2019, the City Council enacted Ordinance No. 2019-26,
which extended the moratorium in its then-current form until December 3, 2019, and in a more
narrow form from December 4, 2019, until April 3, 2020; and
WHEREAS, the City Council had a policy discussion on February 4, 2020 regarding
inclusionary zoning and multifamily property tax exemption programs, and on June 22, 2020
tasked a joint City Council/Planning Commission Ad Hoc Subcommittee to assist in prioritizing
land use code changes, including related to affordable housing and accessory dwelling units; and
WHEREAS, on March 24, 2020, the City Council enacted Ordinance No. 2020-09,
which extended the moratorium in its current form from April 3, 2020 to October 3, 2020; and
WHEREAS, the City submitted a draft ordinance integrating the updated Critical Areas
Ordinance (“CAO”) regulations into the Shoreline Master Program (“SMP”) to the Washington
State Department of Ecology (“Ecology”) and received Ecology’s response on December 9,
2019; and
WHEREAS, due to the COVID-19 public health emergency and pandemic, tens of
thousands of persons in Washington State have contracted the virus and more than a thousand
persons in the state have died due to the virus thus far and during the time period that this
moratorium has been in effect, and the public health emergency is ongoing and is expected to
continue for many months, and likely much longer; and
WHEREAS, due to the COVID-19 public health emergency and pandemic, the City has
been engaged in essential work on a highest-priority basis related to the public health emergency,
and as a result City staff and the City Council have had to significantly adjust work priorities
accordingly to address the public health crisis, including related to work that the Counci l has
been able to consider at modified Council meetings during this time period; and
WHEREAS, as a result of the public health emergency, the final review and public
hearing in response to Ecology’s comments were delayed from March 2020 to June 23, 2020;
and
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WHEREAS, on June 23, 2020, the City Council directed staff to move forward with the
preparation of an ordinance that incorporates Ecology’s required and recommended changes, and
staff’s own recommended changes, and to schedule a public hearing for that ordinance at a future
meeting; and
WHEREAS, on September 1, 2020, as part of the moratorium update, the City Council
directed staff that due to the passage of time that has occurred regarding the variety of topics on
the moratorium work plan related to affordable housing, and in that such work on affordable
housing at this point is expected to continue in various ways, the Council’s expectation is that
such work can continue outside of this moratorium and, as such, the Council directed staff to
update the moratorium work plan to remove the affordable housing topic from the work plan;
and
WHEREAS, on September 8, 2020, the City Council considered this Ordinance No.
2020-24, which is the ordinance that City staff prepared as directed by the Council at its
September 1, 2020 meeting, including related to the revised work plan, and the Council set the
public hearing on the ordinance for September 22, 2020; and
WHEREAS, regarding the remaining item on the moratorium work plan, on September
22, 2020, the City Council is scheduled to hold a public hearing on an ordinance related to
integrating the CAO into the SMP; and
WHEREAS, the CAO/SMP integration ordinance must be approved by Ecology before
it becomes effective, and if the City Council approves the CAO/SMP integration ordinance on
September 22, 2020, it is expected, based on information provided by Ecology to the City, that
the earliest the ordinance could be in effect would be in November 2020; 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
moratorium, as established by Ordinance Nos. 2018-02, 2018-03, 2018-05, 2018-09, 2018-14,
2018-23, 2018-41, 2018-43, 2019-10, 2019-26, and 2020-09.
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Section 2. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390, the
City Council conducted a public hearing on this extension of the moratorium at its meeting on
September 22, 2020, and took public testimony and considered further findings of fact.
Section 3. Moratorium Amended. The moratorium is hereby amended, as also stated in
Section 7 below, to extend the moratorium in its current form as described in Ordinance No.
2020-09 for six months until April 3, 2021, recognizing that the City Council may terminate the
moratorium prior to that date depending on when the City completes the moratorium work plan.
Section 4. 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, and the City is hereby extending the moratorium
for an additional six months based on an updated work plan (see attached Exhibit A), conducting
another public hearing, and adopting additional findings of fact as stated in this ordinance.
Exhibit A (Updated Work Plan) and Exhibit B (Winslow Master Plan Study Area) are
incorporated herein to this ordinance.
Section 5. 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 6. No Change to Basis for Declaration of Emergency or Effective Date. 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 moratorium ordinances which preceded this
ordinance, Ordinance Nos. 2018-02, 2018-03, 2018-05, 2018-09, 2018-14, 2018-23, 2018-41,
2018-43, 2019-10, 2019-26, and 2020-09, 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,
2018-41, 2018-43, 2019-10, 2019-26, and 2020-09, as well as in this ordinance, and those
“Whereas” clauses are adopted as findings of fact.
Section 7. Change to Duration to April 3, 2021. This ordinance amends Ordinance No.
2020-09 and hereby extends the current moratorium, and this ordinance shall cause the
moratorium to remain effective in its current form until April 3, 2021, 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
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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 22nd day of September, 2020.
APPROVED by the Mayor this 22nd day of September, 2020.
ATTEST/AUTHENTICATE:
FILED WITH THE CITY CLERK September 4, 2020
PASSED BY THE CITY COUNCIL September 22, 2020
PUBLISHED: September 25, 2020
EFFECTIVE DATE: September 30, 2020
ORDINANCE NO: 2020-24
Attached:
Exhibit A (Updated Work Plan)
Exhibit B (Winslow Master Plan Study Area)
Exhibit A
Moratorium on Certain Development Work Plan Schedule
Ordinance No. 2020-24
(October 2020 – April 2021)
Work Program Item Description
Critical Areas Ordinance
Adopt the new critical areas ordinance (CAO) into the
Shoreline Master Program (SMP). The City sent a draft
ordinance to the Dept. of Ecology (Ecology) and
received their response on December 9, 2019. Ecology
determined that the amendment is largely consistent
but has identified elements that appear inconsistent
with applicable laws and rules. Due to COVID-19, City
staff held a rescheduled March 2020 Council discussion
about Ecology’s response during the June 23, 2020 City
Council meeting. At that meeting, the Council
authorized staff to move forward with the preparation
of an ordinance that incorporates Ecology's required
changes, staff's recommended changes based on
Ecology's recommended changes, and staff's own
recommended changes, as well as to schedule a public
hearing for that ordinance at a future meeting.
City staff plans to hold the public hearing on September
22, 2020. Following a public hearing and local adoption
by the City Council, Staff will transmit the SMP
amendment to Ecology in accordance with WAC 173-
26-110 and it will become effective 14 days after final
approval by Ecology. With that timeline, the effective
date could be early to mid-November.
EXHIBIT B
(Winslow Zoning Map)
Winslow Master Plan
Study Area