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ORD NO. 2020-29 FURTHER NARROWING THE DEVELOPMENT MORATORIUM TO SHORELINE PROPERTIES WITHIN THE WMPSAPage 1 of 11 ORDINANCE NO. 2020-29 AN ORDINANCE of the City of Bainbridge Island, Washington, adopted pursuant to RCW 35A.63.220 and RCW 36.70A.390; amending Ordinance No. 2020-24; providing for severability; leaving the effective date of the moratorium unchanged; narrowing the moratorium to those properties within the shoreline jurisdiction within the Winslow Master Plan Study Area; and leaving the duration of the moratorium unchanged, which is until 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 Page 2 of 11 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 Page 3 of 11 alternatives for revisions to the City’s land use review procedures, subdivision design guidelines, and/or subdivision standards; 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, 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 Page 4 of 11 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 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 Page 5 of 11 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 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, September 1, 2020, October 6, 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 Page 6 of 11 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 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 Page 7 of 11 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 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 Page 8 of 11 accordingly to address the public health crisis, including related to work that the Council 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 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 conducted a public hearing on an ordinance related to integrating the CAO into the SMP, which is Ordinance No. 2020-17, and that ordinance will be coming back to the City Council for further consideration after additional environmental review is completed; and WHEREAS, the CAO/SMP integration ordinance must be approved by Ecology before it becomes effective, and that Ordinance No. 2020-17 will first be considered further by the City Council and, after adoption by the Council, the ordinance will be transmitted to Ecology for approval, which is expected to occur in the coming months; and WHEREAS, due to the narrowing of the work plan to the CAO/SMP integration, the City Council directed the City Manager during the public hearing on Ordinance No. 2020-24 on September 22, 2020 to bring back an ordinance to further narrow the moratorium to the properties within the shoreline zone within the Winslow Master Plan Study Area; and WHEREAS, under Washington state law and regulations, including RCW 90.58.030(2)(f) and WAC 173-22-030(10), and the City’s regulations, the “shoreline zone” refers to the shoreline jurisdiction, as defined in the Shoreline Master Program, BIMC 16.12.080 as, “the proper term describing all of the geographic areas covered by the Shoreline Management Act, related rules, and the applicable master program. Those lands extending landward for 200 Page 9 of 11 feet in all directions, as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all marshes, bogs, swamps and deltas associated with the streams, lakes, and tidal waters subject to the Shoreline Management Act. Also, such areas within a specified local government’s authority.”; and WHEREAS, those properties now impacted by the narrowed moratorium are reflected in Exhibit B; 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, 2020-09, and 2020-24. Section 2. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390, the City Council conducted a public hearing on the most recent 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, such that the moratorium is narrowed to apply only to the properties within the shoreline zone within the Winslow Master Plan Study Area, as identified in attached Exhibit B, and as incorporated herein. 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. The work plan was last updated when the City Council, after conducting a public hearing on September 22, 2020, extended the moratorium to April 3, 2021. This current ordinance does not change the duration of the moratorium. The ordinance further narrows the moratorium, and the work plan attached as Exhibit A and incorporated herein is updated to reflect the current status of the moratorium. Page 10 of 11 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, 2020-09, and 2020-24, 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, 2020-09, and 2020-24, as well as in this ordinance, and those “Whereas” clauses are adopted as findings of fact. Section 7. No Change in Duration. This ordinance amends Ordinance No. 2020-24 and does not change the duration of the moratorium, which is 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 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 27th day of October, 2020. APPROVED by the Mayor this 27th day of October, 2020. ________________________________ Leslie Schneider, Mayor ATTEST/AUTHENTICATE: Page 11 of 11 FILED WITH THE CITY CLERK October 23, 2020 PASSED BY THE CITY COUNCIL October 27, 2020 PUBLISHED: October 30, 2020 EFFECTIVE DATE: November 4, 2020 ORDINANCE NO: 2020-29 Attached: Exhibit A (Updated Work Plan) Exhibit B (Properties within the Shoreline Jurisdiction and within the Winslow Master Plan Study Area) Exhibit A Moratorium on Certain Development Work Plan Schedule Ordinance No. 2020-29 (October 2020 – April 2021) (Updated October 27, 2020) 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. The City Council conducted a public hearing on that ordinance, Ordinance No. 2020-17, on September 22, 2020, and that ordinance will be coming back to the Council for further consideration after additional environmental review is completed. After adoption by the Council, which is expected to occur in the coming months, City 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.