ORD 2003-17 SUBDIVISION MORATORIUM CONTINUATION ORDINANCE NO. 2003-17
AN ORDINANCE of the City of Bainbridge Islan.d,, Washington, adopting
findi ngs of fact supporting the continuation of the City s moratorium on certain
sub~ ivision applications; continuing the moratorium until September 30, 2003;
ame~ tding Section 2 of Ordinance No. 2002-28 and Section 2 of Ordinance No.
200~ -53; and declaring an emergency.
WHEREAS, the Growth Management Act, Chapter 36.70A RCW, provides that city
comprehen~ ive plans and development regulations shall retain, designate, include and identify
open space ~nd open space corridors; and
WHEREAS, consistent with the Growth Management Act and the City's
Comprehen ;ive Plan (Land Use Element - Residential Open Space Goal 1 and Policies OS 1.1,
OS 1.11, )S 1.12, and OS 1.13), BIMC 17.04.075 and 17.04.080 (subdivisions), BIMC
17.12.080 ~nd 17.12.090 (short subdivisions), and BIMC 17.16.065 and 17.16.070 (large lot
subdivisior require that subdivisions in certain zones provide open space; and
WI~ '~REAS, on July 11, 2002, the Supreme Court of the State of Washington issued
its decision in Isla Verde International Holdings, Inc., et al. v. City of Camas, 146 Wn.2d 740
(2002), in ~hich 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
Vv'E EREAS, in Isla Verde the Court held that the Camas subdivision condition violated
RCW 82.0~. ~.020 because Camas failed to establish that the condition was reasonably necessary
as a direct 'esult of the proposed subdivision; and
WI~EREAS, in adopting Chapters 17.04, 17.12 and 17.16 BIMC, the City did not
establish tl~ at the City's open space requirements are reasonably necessary as a direct result of
subdivisior s in general; and
Wt iEREAS, the City does not have a process for establishing that the City's open
space reql.irements are reasonably necessary as a direct result of specific subdivision
application and
WI ~REAS, to comply with the Growth Management Act, as well as the Isla Verde
case, the Ci t must compile evidence supporting the City's open space requirements, and must
develop a p~ )cess for imposing open space requirements on proposed subdivisions; and
WI[ iREAS, 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
WI[ r, REAS, 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
WI-I gREAS, on December 18, 2002, the City Council held a public hearing on the
continuatior of the moratorium and passed Ordinance No. 2002-53, amending Ordinance Nos.
2002-28 an~ 2002-30 and continuing the moratorium until March 31, 2003; and
WI-I EREAS, the City received a consultant's written report regarding the allocation of
open space in the City and the imposition of an open space requirement as a condition of
developmer t approval, and City staff prepared a draft ordinance amending Chapters 17.04,
17.12 and 7.16 BIMC; and
WI EREAS, on February 26, 2003, the City Council held a public hearing on the draft
ordinance, ~nd on March 5, 2003, the City held a workshop on the draft ordinance; and
Wi EREAS, the City is revising the draft ordinance, and needs additional time to
consider a~td analyze comments and other appropriate evidence and information and to
incorporate the information into the proposed ordinance; and
WI~EREAS, RCW 35A.63.220 and RCW 36.70A.390 authorize the City to adopt a
moratoriurr on development, and to continue the moratorium for additional periods of up to six
months after conducting a public bearing on the continuation of the moratorium and adopting
findings of fact supporting the continuation; and
WE EREAS, on March 26, 2003, the City Council held a hearing on the continuation
of the mo~ atorium, at which time members of the public had the opportunity to present
testimony z nd other evidence in favor of or against the continuation of the moratorium; and
WE EREAS, the City Council has determined that the extension and continuous
operation c f the moratorium, as adopted in Ordinance Nos. 2002-28, 2002-30 and 2002-53, is
necessary ~r the protection of the public health, safety, property, or peace, including the
protection ~f the City's land use and planning process, and desires to enter the findings set
forth in th s Ordinance to support the continuation of the moratorium as required by RCW
35A.63.22~) and RCW 36.70A.390; now, therefore
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TH~ CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, DO ORDAIN
AS FOLLC WS:
SectJ ~n 1. Establishment of Findings. Based on the public testimony and other
evidence su )mitted at the public hearings held on August 28, 2002, December 18, 2002 and
March 26, 2003, the City Council enters the following Findings of Fact to support the
continuatior 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 Ordinance No. 2002-53
("Moratorit m"):
1. On August 28, 2002, the City Council held a public hearing on
the idoratorium, and on December 18, 2002 and March 26, 2003, the City
Cou~ tcil held public hearings on the continuation of the Moratorium.
2. At the hearings, members of the public had the opportunity to
pres~,.nt testimony and other evidence regarding the imposition of the
Mot ttorium and the continuation of the Moratorium. The City Council
considered testimony or written reports submitted by staff regarding the
Morttorium and the Moratorium's continuation, as well as all evidence
pres, :nted by the public.
3. The Growth Management Act, Chapter 36.70A RCW, provides
that city comprehensive plans and development regulations shall retain,
desi mate, include and identify open space and open space corridors.
4. Residents of the City have indicated that open space is an
im rtant community value. The Bainbridge Island Community Values Survey
Rep,~rt (Pacific Rim Resources, Inc., 2000) reports that residents strongly
sup[ ort preservation of environmentally sensitive areas and agricultural land,
rete~ ttion of forested land, and development of pedestrian and bicycle trials.
5. Consistent with the Growth Management Act and the City's
Con prehensive Plan (Land Use Element - Residential Open Space Goal 1 and
Polities OS 1.1, OS 1.11, OS 1.12, and OS 1.13), BIMC 17.04.075 and
17.( 4.080 (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
subc ivisions of property located in the R-0.4, R-I, R-2, R-2.9, R-3.5 and R-4.3
zon~ 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
issu, its decision in Isla Verde International Holdings, Inc., et al. v. City of
Canas, 146 Wn.2d 740 (2002). In the Isla Verde case, the City of Camas
con~ [itioned approval of a residential subdivision on the set aside of open space,
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purs~ rant to an ordinance that required every subdivision to retain open space.
The Washington Supreme Court held that the subdivision condition violated
RC¥~ 82.02.020 because Camas failed to establish that the condition was
reas( nably 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 e stablish that the City's open space requirements are reasonably necessary as
a dir ~ct result of subdivisions in general. The City does not have a process for
estat lishing that the City's open space requirements are reasonably necessary as
a dir ~ct result of specific subdivision applications.
8. In order to comply with the Growth Management Act, as well as
the i ~la Verde case, the City must compile evidence supporting the City's open
spac ~' requirements and develop a process for imposing open space requirements
on ;oposed subdivision applications.
9. On July 24, 2002, the City Council passed Ordinance No. 2002-
28, mposing a moratorium on the filing of applications for subdivisions, short
subdivisions, and large lot subdivisions that are not complete (vested) in
acco rdance with BIMC 2.16.055 before the effective date of Ordinance No.
200~-28. On August 28, 2002, after conducting the public hearing, the City
Cou ~cil passed Ordinance No. 2002-30 amending Ordinance No. 2002-28, to
clari [y the scope of the Moratorium and to adopt findings of fact supporting the
imp{ ,sition of the Moratorium.
10. After passing Ordinance No. 2002-30, the City contracted with a
cons altant for the preparation of a study regarding the allocation of open space
in ti e City and the imposition of an open space requirement as a condition of
subc ivision and other development approval in the City.
11. On December 18, 2002, after conducting a public hearing, the
City passed Ordinance No. 2002-53, clarifying the scope of the moratorium and
con! inuing the moratorium until March 31, 2003.
12. The City received the consultant's written report in December
200'~ ~. City staff prepared a draft ordinance amending Chapters 17.04, 17.12
and 17.16 BIMC. The Land Use Committee reviewed and commented on the
drat ordinance, and the City has received comments on the draft ordinance
fro~ the state Office of Community Development. On February 26, 2003, the
Cit3 Council held a public hearing on the draft ordinance, and on March 5,
200 , the City held a workshop on the draft ordinance.
13. The Land Use Committee is now in the process of revising the
dral ordinance based on comments received from the state and at the public
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hear: ng and workshop. However, the City needs additional time to consider and
anal, ze the comments and other appropriate evidence and information, and if
nec~ ;sary, to incorporate the information into the proposed ordinance.
14. RCW 35A.63.220 and RCW 36.70A.390 authorize the City to
adop: a moratorium on development, and to continue the moratorium for
addil ional periods of up to six months after conducting a public hearing on the
conti nuation of the moratorium and adopting findings of fact supporting the
continuation.
15. In Matson v. Clark County Bd. of Commissioners, 79 Wn. App.
641 i1995), the Court held that RCW 35.63.200, which is substantially similar
to R~ ~W 35A.63.220, authorizes the enactment of a development moratorium or
inter m zoning control. In Tahoe-Sierra Preservation Council Inc. v. Tahoe
Regi, real Planning Agency, 122 S.Ct. 1465 (2002), the United States Supreme
Corn t held that a development moratorium is not a per se taking under the
fedm al Constitution's takings clause. In so holding, the Court recognized that
mort toria are used widely among land use planners to preserve the status quo
whil~~. ,formulating a permanent development strategy, further the regulatory
agen :y s interest in informed decision-making, and protect the interest of all
land~ ,wners against immediate construction that might be inconsistent with the
prov sions of a plan that is ultimately adopted.
16. The Moratorium is necessary while the City compiles and
cons:tiers the appropriate information supporting the City's open space
requlrements, and prepares and considers the process for imposing the open
space: requirements on subdivision applications. The Moratorium provides time
for t2 te City to obtain the benefit of comments from interested citizens and from
its cz ,nsultants. The City's land use and planning process will suffer significant
harrr if the Moratorium is not in place until the City completes the necessary
work on the open space requirements.
17. The City Council has determined that the Moratorium is
nece: sary for the protection of the public health, safety, property, or peace,
inclu ling the protection of the City's land use and planning process.
Secti )n 2. Section 2 of Ordinance No. 2002-28 and Section 2 of Ordinance No.
2002-53 are amended to read:
Tern. of Moratorium. The moratorium imposed in this ordinance shall
conu hence on the effective date of this ordinance and end on August 5, 2003
unless repealed, extended or modified by the City Council after subsequent
publi~ hearing and entry of appropriate findings of fact pursuant to RCW
35A.63.220 and 36.70A.390.
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Sect! on 3. Severability. If any section, sentence, clause or phrase of this Ordinance
is held to b ~ invalid or unconstitutional by court of competent jurisdiction, such invalidity or
unconstimti,~nality__ shall not affect the validity or constitutionality of any other section,
sentence, clquse or phrase of this Ordinance.
/
~. Effective Date. This ordinance, passed by a majority plus one of the
whole membership of the City Council as a public emergency ordinance necessary for the
protection ,Sf the public health, public safety, public property, or public peace, shall be
effective im mediately upon its passage.
PASSED by the City Council this 26~ day of March 2003.
APPROVED by the Mayor the 26~ day of March 2003.
DARLENE KORDOBIOWY, M~)
ATTEST/~ UTHENTICATE:
KP~SPER, City Clerk
APPROVE AS TO FORM:
ROD P. KJ tSEGUMA, City Attorney
FILED WI' ['H THE CITY CLERK: March 19, 2003
PASSED B Y THE CITY COUNCIL: March 26, 2003
PUBLISH} D: April 2, 2003
EFFECTIX E DATE: March 26, 2003
ORDINAN CE NO.: 2003-17
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