Loading...
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 -2- 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, -3- 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 -4- 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. -5- 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 -6-