ORD 2002-30 SUBDIVISION MORATORIUM ADOPTING FINDINGS OF FACT
'\
.
ORDINANCE NO. 2002-30
AN ORDINANCE of the City of Bainbridge Island, Washington, adopting
fmdings of fact supporting the City's moratorium n certain subdivision
applications; clarifying the subdivision applications at are subject to the
moratorium; adding a new Section 6 to Ordinance No. 002-28; and amending
Section 1 of Ordinance No. 2002-:28.
WHEREAS, the Growth Management Act, Chapter 3 .70A RCW, provides that city
comprehensive plans and development regulations shall retain, designate, include and identify
open space and open space corridors; and
WHEREAS, consistent with the Growth Mana ement Act and the City's
Comprehensive Plan (Land Use Element - Residential Open S ce Goal 1 and Policies OS .1.1,
OS 1.11, OS 1.12, and OS 1.13), BIMC 17.04.075 and 1 .04.080 (subdivisions), BIMC
17.12.080 and 17 .12.090 (short subdivisions), and BIMC 17. 6.065 and 17 .16.070 (large lot
subdivisions) require that subdivisions in certain zones provide pen space; and -
WHEREAS, on July 11, 2002, the Supreme Court 0 the State of Washington issued
its decision in Isla Verde International Holdings, Inc., et al. v. City of Camas, Washington,
Docket Number 69475-3, in which Camas conditioned approv of a residential subdivision on
the set aside of open space, pursuant to an ordinance that req ires every subdivision to retain
open space; and
WHEREAS, in Isla Verde the Court held that the C subdivision condition violated
RCW 82.02.020 because Camas failed to establish that the co dition was reasonably necessary
as a direct result of the proposed subdivision; and
WHEREAS, in adopting Chapters 17.04, 17.12 d 17.16 BIMe, the City of
Bainbridge Island did not establish that the City's open sp ce requirements are reasonably
necessary as a direct result of subdivisions in general; and
WHEREAS, the City of Bainbridge Island does not h ve a process for establishing that
the City's open space requirements are reasonably necess as a direct result of specific
subdivision applications; and
WHEREAS, to comply with the Growth Manageme t Act, as well as the Isla Verde
case, the City of Bainbridge Island must compile evidence upporting the City's open space
requirements, and must develop a process for imposing the ity's open space requirements on
proposed subdivisions; and
WHEREAS, RCW 35A.63.220 and RCW 36.70A. 90 authorize the City to adopt a
moratorium on development and hold a public hearing on e moratorium within 60 days. of
commencement of the moratorium; and
947001 I 05l244080.02 (9/19/02) -1-
'I
'\
WHEREAS, on July 24, 2002, the City Council p sed Ordinance No. 2002-28,
imposing a moratorium on the filing of applications for subdi is ions , short subdivisions, and
large lot subdivisions that are not complete (vested) in accord ce with BIMe 2.16.055 before
the effective date of Ordinance No. 2002-28; and
WHEREAS, on August 28, 2002, the City Council held a public hearing on the
moratorium; and
WHEREAS, the City Council has determined that a oratorium, as modified by this
Ordinance, is necessary for the protection of the public he , safety, property, or peace,
including the protection of the City's land use and planning p ocess, and desires to enter the
findings set forth in this Ordinance to support the mor orium as required by RCW
35A.63.220 and RCW 36.70A.390; now, therefore
THE CITY COUNCIL OF THE CITY OF BAINB E ISLAND, DO ORDAIN
AS FOLLOWS: -
Section 1. Establishment of Findill&s. A new Secti n 6 is added to Ordinance No.
2002-28 as follows: .
Findinas. Based on the public testimony and other e idence submitted at the
public hearing held on August 28, 2002, the City COll cll enters the following
Findings of Fact to support the moratorium described · Section 1 of Ordinance
No. 2002-28, as amended by Section 2 of this Ordinanc ("Moratorium"):
1. On August 28, 2002, the City Council eld a public hearing on
the Moratorium.
2. The City Council considered testimony by staff regarding the
Moratorium submitted at the hearing. At the hearing, members of the public
had the opportunity to present testimony and other vidence regarding the
imposition of the Moratorium.
3. The Growth Management Act, Chapter 6.70A RCW, provides
that city comprehensive planS and development r gulations shall retain,
designate, include and identify open space and open spa corridors.
4. Residc:nts of the City have indicated is an
important community value. The Bainbridge Island Co unity Values Survey
Report (Pacific Rim Resources, Inc., 2(00) reports that residents strongly
support preservation of environmentally sensitive area and agricultural land,
retention of forested land, and development of pedestri and bicycle trials.
9470011051244080.02 (9/19/02) -2-
5. Consistent with the Growth Manage ent Act and the City's
Comprehensive Plan (Land Use Element - Residentia Open Space Goal 1 and
Policies OS 1.1, OS 1.11, OS 1.12, and OS 1.13 , BIMC 17.04.075 and
17 · 04. 080 (subdivisions), BIM C 17.12.080 and 17.1 .090 (short subdivisions)
and BIMC 17.16.065 and 17.16.070 (large lot subdi isions) require proposed
subdivisions of property located in the R-o.4, R-I, R-2 R-2.9, R-3.5 and R-4.3
zones to provide a certain percentage of the land for op n space area.
6. On July 11, 2002, the Supreme Court 0 the State of Washington
issued its decision in Isla Verde International Boldin s, Inc., et ale v. City of
Camas, Washington, Docket Number 69475-3. In the Isla Verde case, the City
of Camas conditioned approval of a residential subdi · sion on the set aside of
open space, pursuant to an ordinance that required e ry subdivision to retain
open space. The Washington Supreme Court held that e subdivision condition
violated RCW 82.02.020 because Camas failed to es blish that the condition
was reasonably necessary as a direct result of the propo ed subdivision.
-
7. In adopting Chapters 17.04, 17.12 and 7.16 BIMC, the City of
Bainbridge Island did not establish that the City's ope space requirements are
reasonably necessary as a direct result of subdivisions · general. The City of
Bainbridge Island does not have a process for establis ing that the City's open
space requirements are reasonably necessary as a irect result of specific
subdivision applications.
8. In order to comply with the Growth M agement Act, as well as
the Isla Verde case, .the City of Bainbridge Island must compile evidence
supporting the City's open space requirements, and m t develop a process for
imposing the City's open space requirements 0 proposed subdivision
applications .
9. The City needs additional time to ga er, study and analyze
carefully the appropriate evidence and information, and 0 develop the necessary
process for imposing open space requirements on subd visions. The City must
contract with a consultant to perform the necessary re arch and study, and. to
draft any proposed revisions to the City code. City sta anticipates presenting a
draft ordinance containing any necessary code rev sions to the Planning
Commission for consideration in approximately Octobe 2002, that the Planning
Commission will conduct a public hearing on the draft rdinance and forward a
recommendation to the City Council in approximately ovember 2002, and that
the Council will adopt an ordinance, if necessary, in a proximately December
2002.
10. The amendment to the moratorium stat in Section 2 of this
Ordinance clarifies the location of proposed subdivisio that are subject to the
9470011051244080.02 (9/19/02) -3-
-
moratorium, consistent with Table II in BIMC 1 .04.080, 17.12.090 and
17.16.070.
11. RCW 35A.63.220 and RCW 36.70A. 90 authorize the City to
adopt a moratorium on development and to hold public hearing on the
moratorium and adopt findings supporting the morat rium within 60 days of
commencement of the moratorium.
12. In Matson v. Clark County Board of Commissioners, 79 Wn.
App. 641 (1995), the Washington Supreme .Court he d that RCW 35.63.200,
which is substantially similar to RCW 35A~63.220, au orizes the enactment of
a development moratorium or interim zoning co trol. In Tahoe-Sierra
Preservation Council, Inc. v. Tahoe RegionalPlannin Agency, 122 S.Ct. 1465
(2002), the United States Supreme Court held that a de elopment moratorium is
not a per se taking under the federal Constitution' takings clause. In so
holding, the Court recognized that moratoria are use widely among land-use
planners to preserve the status quo while formulating permanent development _
strategy, further the regulatory agency's interest in in ormed decision-making,
and protect the interest of all landowners against · ediate construction that
might be inconsistent with the provisions of a plan that s ultimately adopted.
13. The Moratorium is necessary while the City compiles and
considers the appropriate information supporting e City's open space
requirements, and prepares and considers the proces for imposing the open
space requirements on subdivision ~pplications. The oratorium will provide
time for the City to obtain the benefit of comments om interested citizens.
The City's land use and planning process will suffe significant harm if the
Moratorium is not in place until the City completes th necessary work on the
open space requirements.
14. The City Council has determined at the Moratorium is
necessary for the protection of the public health, sa~ ty, property, or peace,
including the protection of the City's land use and pI g process.
Section 2. Section 1 of Ordinance No. 2002-28 is ended to read:
IlllPOsition of Moratorium. A moratorium is impose on applications for the
subdivision (subdivisiol16, short subdivision and I e lot subdivision) of
property located in the R-O.4, R-l, R-2, R-2.9, R-3.5 d R -4.3 zones that are
not complete (vested) in accordance with BIMe 2.16. 55 before the effective
date of this ordinance.
Section 3. Severability. If any section, sentence, cl 'use or phrase of this Ordinance
shall be held to be invalid or unconstitutional by court 0 competent jurisdiction, such
9470011051244080.02 (9/19/02) -4-
invalidity or unconstitutionality shall not affect the validity r constitutionality of any other
section, sentence, clause or phrase of this. Ordinance.
Section 4. Effective Date. This . Ordinance shall e effect and be in force five
days from and after its passage, approval and publication as re uired by law.
PASSED by the City Council this 181h day of Septembe 2002.
APPROVED by the Mayor the 19th day of September 2
A TTEST I A UTHENTICA TE:
,~ {P ~~~ -
.' SANP. KASPER, City Clerk
APPROVED AS TO FORM:
ROD P. KASEGUMA, City Attorney
FILED WITH THE CITY CLERK: August 21, 2002
PASSED BY THE CITY COUNCIL: September 18, 200
PUBLISHED: September 25, 200
EFFECTIVE DATE: September 30,2002
ORDINANCE: 2002-30
9410011051244080.02 (9/19102) -5-