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ORD 2002-53 SUBDIVISION MORATORIUM EXTENSION ORDINANCE NO. 2002-53 AN ORDINANCE of the City of Bainbridge Island, Washington, adopting findings of fact supporting the continuation of the City's moratorium on certain subdivision applications; continuing the moratorium until March 31, 2003; clarifying that subdivision amendment applications are subject to the moratorium; amending Section 2 of Ordinance No. 2002-28; and amending Section 1 of Ordinance No. 2002-28, as amended by Ordinance No. 2002-30. WHEREAS, the Growth Management Act, Chapter 36.70A 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 Management Act and the City's Comprehensive Plan (Land Use Element - Residential 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), BIMC 17.12.080 and 17.12.090 (short subdivisions), and BIMC 17.16.065 and 17.16.070 (large lot subdivisions) require that subdivisions in certain zones provide open space; and WHEREAS, on July 11, 2002, the Supreme Court of the State of Washington issued its decision in Isla Verde International Holdings, Inc., et ale v. City of Camas, 146 Wn.2d 740 (2002), in which Camas conditioned approval of a residential subdivision on the set aside of open space, pursuant to an ordinance that required every subdivision to retain open space;. and WHEREAS, in Isla Verde the Court held that the Camas subdivision condition violated RCW 82.02.020 because Camas failed to establish that the condition was reasonably necessary as a direct result of the proposed subdivision; and WHEREAS, in adopting Chapters 17.04, 17.12 and 17.16 BIMC, the City did not establish that the City's open space requirements are reasonably. necessary as a direct result of subdivisions in general; and WHEREAS, the City does not have a process for establishing that the City's open space requirements are reasonably necessary as a direct result of specific subdivision applications; and WHEREAS, to comply with the Growth Management Act, as well as the Isla Verde case, the City must compile evidence supporting the City's open space requirements, and must develop a process for imposing the City's open space requirements on proposed subdivisions; and WHEREAS, on July 24, 2002, the City Council passed Ordinance No. 2002-28, imposing a moratorium on the filing of certain applications for subdivisions, short subdivisions, and large lot subdivisions; and 9470011051250142.02 (12/17/02) -1- WHEREAS, on August 28, 2002, the City Council held a public hearing on the moratorium and passed Ordinance No. 2002-30 amending Ordinance No. 2002-28; and WHEREAS, the City has prepared a draft work program that details the steps that the City has taken and intends to take in the future to develop a process for, imposing the City's open space requirements on proposed subdivisions; and WHEREAS, the City has contracted with a consultant for the preparation of a study regarding the allocation of open space in the City and the imposition of an open space requirement as a condition of subdivision and other development approval in the City; and WHEREAS, after the consultant completes its study, the City will need additional time to analyze the study and incorporate any of the study's conclusions or recommendations into Chapters 17.04, 17.12 and 17.16 BIMC or other City development regulations; and WHEREAS, RCW 35A.63.220 and RCW 36.70A.390 authorize the City to adopt a moratorium on development, and 10 continue the moratorium for additional periods of up to six months after conducting a public hear~g on the continuation of the moratorium and adopting findings of fact supporting the continuation; and WHEREAS, on December 18, 2002, the City Council held a hearing on the continuation and clarification of the moratorium, at which time members of the public had the opportunity to present testimony and other evidence relating to the moratorium; and WHEREAS, the City Council has determined that the continuation of the moratorium, as adopted in Ordinance Nos. 2002-28 and 2002-30 and Section 3 of this Ordinance, is necessary for the protection of the public health, safety, property, or peace, including the protection of the City's land use and planning process, and desires to enter the fmdings set forth in this Ordinance to support the continuation of the moratorium as required by RCW 35A.63.220 and RCW 36.70A.390; now, therefore THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, DO ORDAIN AS FOLLOWS: Section 1. Establishment of Findines. Based on the public testimony and other evidence submitted at the public hearings held on August 28, 2002 and December 18, 2002, the City Council enters the following Findings of Fact to support the continuation of the moratorium described in Section 1 of Ordinance No. 2002-28, as amended by Section 2 of Ordinance No. 2002-30 and Section 3 of this Ordinance (" Moratorium" ) : 1. On August 28, 2002, the City Council held a public hearing on the Moratorium, and on December 18, 2002, the City Council held a public hearing on the continuation of the Moratorium. 9470011051250142.02 (12/17/02) -2- 2. At the hearings, members of the public had the opportunity to present testimony and other evidence regarding the Moratorium. The City Council considered testimony or written reports submitted by staff regarding the Moratorium and the Moratorium's continuation, as well as all evidence presented by the public. 3. The Growth Management Act, Chapter 36.70A RCW, provides that city comprehensive plans and development regulations shall retain, designate, include and identify open space and open space corridors. 4. Residents of the City have indicated that open space is an important community value. The Bainbridge Island COnimunity Values Survey Report (Pacific Rim Resources, Inc., 2(00) reports that residents strongly support preservation of environmentally sensitive areas and agricultural land, retention of forested land, and development of pedestrian and bicycle trials. 5. Consistent with the Growth Management Act ~d the City's Comprehensive Plan (Land Use Element - Residential 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), BIMC 17.12.080 and 17.12.090 (short subdivisions) and BIMC 17.16.065 and 17.16.070 (large lot subdivisions) require proposed subdivisions of property located in the R-0.4, R-l, R-2, R-2.9, R-3.5 and R-4.3 zones to provide a certain percentage of the land for open space area. 6. On July 11, 2002, the Supreme Court of the State of Washington issued its decision in Isla Verde International Holdings, Inc., et ale v. City of Camas, 146 Wn.2d 740 (2002). In the Isla Verde case, the City of Camas conditioned approval of a residential subdivision on the set aside of open space, pursuant to an ordinance that required every subdivision to retain open space. The Washington Supreme Court held that the subdivision condition violated RCW 82.02.020 because Camas failed to establish that the condition was reasonably necessary as a direct result of the proposed subdivision. 7. In adopting Chapters 17.04, 17.12 and 17.16 BIMC, the City did not establish that the City's open space requirements are reasonably necessary as a direct result of subdivisions in general. The City does not have a process for establishing that the City's open space requirements are reasonably necessary as a direct result of specific subdivision applications. 8. In order to comply with the Growth Management Act, as well as the Isla Verde case, the City must compile evidence supporting the City's open space requirements, and must develop a process for imposing the City's open space requirements on proposed subdivision applications. 9470011051250142.02 (12/17/02) -3- 9. On July 24, 200 , the City Council passed Ordinance No. 2002- 28, imposing a moratorium on e filing of applications for subdivisions, short subdivisions, and large lot s bdivisions that are not complete (vested) in accordance with BIMC 2.16.0 5 before the effective date of Ordinance No. 2002-28. On August 28, 200 , after conducting the public hearing, the City Council passed Ordinance No. 12002-30 amending Ordinance No. 2002-28, to clarify the scope of the Morato~um and to adopt findings of fact supporting the imposition of the Moratorium. 10. Since passing 0 dinance No. 2002-30, the City has contracted with a consultant for the prepar tion of a study regarding the allocation of open space in the City and the impos ion of an open space requirement as a condition of subdivision and other develo ment approval in the City. The City expects to receive the consultant's written eport in December 2002. 11. After receiving e consultant's written report, the City will need additional time to gather, stu y and analyze carefully the report and other appropriate evidence and info tion, and to develop the necessary process for imposing open space requirem 18 on subdivisions, including the incorporation of the consultant's conclusions pr recommendations into Chapters 17.04, 17.12 and 17.16 BIMC and other Cit)t development regulations. City staff anticipates completing a draft ordinance CO~taining any necessary code revisions in January or February 2002, that a public earing on the draft ordinance will then be held, and that the Council will ado~t an ordinance, if necessary, in approximately March 2002. 12. RCW 35A.63.2 and RCW 36.70A.390 authorize the City to adopt a moratorium on deve pment, and to continue the moratorium for additional periods of up to six onths after conducting a public hearing on the continuation of the moratori and adopting fmdings of fact supporting the continuation. 13. In Matson v. c~~rk County Bd. of Commissioners, 79 Wn.App. 641 (1995), the Washington Su reme Court held that RCW 35.63.200, which is . substantially similar to RCWi 35A.63.220, authorizes the enactment of a development moratorium or i interim zoning control. In Tahoe-Sierra Preservation Council, Inc. v. T~oe Regional Planning Agency, 122 S.Ct. 1465 (2002), the United States Suprefne Court held that a development moratorium is not a per se taking under th~federa1 Constitution's takings clause. In so holding, the Court recognized I at moratoria are used widely among land use planners to preserve the status quo while formulating a permanent development strategy, further the regulatory! agency's interest in informed decision-making, and protect the interest of all landowners against immediate construction that 9470011051250142.02 (12/17/02) -4- --~-~--_._._- might be inconsistent with the provisions of a plan that is ultimately adopted. 14. The amendment to the moratorium stated in Section 3 of this Ordinance clarifies that the moratorium applies to applications for amendments to subdivisions, short subdivisions, and large lot subdivisions containing property located in the stated zoning districts. 15. The Moratorium is necessary while the City compiles and considers the appropriate information supporting the City's open space requirements, and prepares and considers the process for imposing the open space requirements on subdivision applications. The Moratorium will provide time for the City to obtain the benefit of comments from interested citizens and from its consultants. The City's land use and planning process will suffer significant harm if the Moratorium is not in place until the City completes the necessary work on the open space requirements. 16. The City Council has determined that the Moratorium is necessary for the protection of the public health, safety, property, or peace, including the protection of the City's land use and planning process. Section 2. Section 2 of Ordinance No. 2002-28 is amended to read: Term of Moratorium. The moratorium imposed in this ordinance shall commence on the effective date of this ordinance and end on Deeember 31, ~ March 31.. 2003, unless repealed, extended or modified by the City Council after subsequent public hearing and entry of appropriate findings of fact pursuant to RCW 35A.63.220 and 36.70A.390. Section 3. Section 1 of Ordinance No. 2002-28 and Section 2 of Ordinance No. 2002-30 are amended to read as follows: Imposition of Moratorium. A moratorium is imposed on applications for the subdivision and for the amendment of al\Y subdivision (subdivision, short subdivision and large lot subdivision) of property located in the R-O.4, R-l, R- 2, R-2.9, R-3.5 and R-4.3 zones that are not complete (vested) in accordance with BIMC 2.16.055 before the effective date of this ordinance. Section 4. Severability. If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. Section 5. Effective Date. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as required by law. 9470011 051250142.02 (12/17/02) -5- PASSED by the City Council this 18th day of December 2002. APPROVED by the Mayor the 19th day of December 2002. ATTEST / A UTHENTICA TE: ~(?~~ SUSAN P. KASPER, City Clerk APPROVED AS TO FORM: ROD P. KASEGUMA, City Attorney FILED WITH THE CITY CLERK: December 13, 2002 PASSED BY THE CITY COUNCIL: December 18, 2002 PUBLISHED: December 25, 2002 EFFECTIVE DATE: December 30, 2002 ORDINANCE: 2002-53 9470011051250142.02 (12/17/02) -6-