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
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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.
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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.
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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
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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.
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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
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