ORD 2003-29 CONTINUATION OF MORATORIUM ON SUBDIVISIONS ORDINANCE NO. 2003-29
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 on applications for
subdivisions and amendments to subdivisions until February 5, 2004 and
continuing the moratorium on applications for short subdivisions and large lot
subdivisions and amendments to short subdivisions and large lot subdivisions
until OctOber 27, 2003; amending Sections 1 and 2 of Ordinance No. 2002-28,
Section 2 of Ordinance No. 2002-30, Sections 2 and 3 of Ordinance No. 2002-
53, and Section 2 of Ordinance No. 2003-17.
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 IA1, 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 Washirigton issued
its decision in Isla Verde International Holdings, Inc., et al. 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 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
Ordinance 2003-29, Subdivision Moratorium Extension
Approvecl July 23, 2003 -1-
subdivisions, and large lot subdivisions; and
WI~I~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-IEREAS, on December 18, 2002, the City Council held a public hearing on the
continuation of the moratorium and passed Ordinance No. 2002-$3, continuing the moratorium
until March 31, 2003; and
WHEREAS, 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
development approval, and City staff prepared a draft ordinance amending Chapters 17.04,
17.12 and 17.16 BIMC; and
WHEREAS, on February 26, 2003, the City Council held a public hearing on the draft
ordinance, and on March 5, 2003, the City held a workshop on the draft ordinance; and
WHEREAS, on March 26, 2003, the City Council held a hearing on the continuation
of the moratorium, and passed Ordinance No. 2003-17, continuing the moratorium until
August 5, 2003; and
WHEREAS, the City is revising the draft ordinance, is considering a separate
ordinance for short subdivisions and large lot subdivisions that could be completed prior to an
ordinance addressing regular subdivisions, and needs additional time to consider and analyze
comments and other appropriate evidence and information and to incorporate the information
into the proposed ordinance(s); and
WttERE~,S, on July 23, 2003, the City Council held a hearing on the continuation of
the moratorium, at which time members of the public had the opportunity to present testimony
and other evidence in favor of or against the continuation of the moratorium; and
WHEREAS, RCW 35A.63.220 and RCW 36.70A.390 authorize the City to adopt a
moratorium on development, and to continue the moratorium for additional periods of up to six
months after conducting a public hearing on the continuation of the moratorium and adopting
findings of fact supporting the continuation; and
WHEREAS, the City Council has determined that the extension and continuous
operation of the moratorium, as adopted in Ordinance Nos. 2002-28, 2002-30 and 2002-53, 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 findings 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
Ordinance 2003-29, Subdivision Moratorium Extension
Approved July 23, 2003 -2-
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, DO ORDAIN
AS FOLLOWS:
Section 1. Establishment of Findings. Based on the public testimony and other
evidence submitted at the public hearings held on August 28, 2002, December 18, 2002,
March 26, 2003, and July 23, 2003, thc City Council enters the following Findings of Fact to
support ~he continuation of thc moratorium described in Section 1 of Ordinance No. 2002-28,
as amended by Section 2 of Ordinance No. 2002-30, Section 3 of Ordinance No. 2002-53, and
Section 3 of this Ordinance ("Moratorium"):
I. On August 28, 2002, the City Council held a public hearing on
the Moratorium, and on December 18, 2002, March 26, 2003, and July 23,
2003, the City Council held public hearings on the continuation of the
Moratorium.
2. At the hearings, members of the public had the opportunity to
present testimony and other evidence regarding the imposition of the
Moratorium and the continuation of 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 Community Values Survey
Report (Pacific Rim Resources, Inc., 2000) reports that residents strongly
support preservation of environmentally sensitive areas and agricultural land,
retention of forested land, and development of pedestrian and bicycle trails.
5. 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 IA1, OS 1.12, and OS 1'213), 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 al. 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.
Ordinance 2003-29, Subdivision Moratorium Extension
Approved July 23, 2003 -3-
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 lsla Verde case, the City must compile evidence supporting the City's open
space requirements and develop a process for imposing open space requirements
on proposed subdivision applications.
9. On July 24, 2002, the City Council passed Ordinance No. 2002-
28, imposing a moratorium on the filing of applications for subdivisions, short
subdivisions, and large lot subdivisions that are not complete (vested) in
accordance with BIMC 2.16.055 before the effective date of Ordinance No.
2002-28. On August 28, 2002, after conducting the public hearing, the City
Council passed Ordinance No. 2002-30 amending Ordinance No. 2002-28, to
clarify the scope of the Moratorium and to adopt findings of fact supporting the
imposition of the Moratorium.
10. After passing Ordinance No. 2002-30, the City 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 requiremem as a condition of
subdivision 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
continuing the Moratorium until March 31, 2003.
12. The City received the consultant's written report in December
2002. 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
draft ordinance, and the City received comments on the draft ordinance from the
state Office of Community Development. On February 26, 2003, the City
Council held a public hearing on the draft ordinance, and on March 5, 2003, the
City held a workshop on the draft ordinance.
13. On March 26, 2003, after conducting a public hearing, the City
Council passed Ordinance No. 2003-17, continuing the Moratorium until August
5, 2003.
Ordinance 2003-29, Subdivision Moratohum Extension
Approved July 23, 2003 -4-
14. Since passing Ordinance No. 2003-17, the Land Use Committee
has discussed the draft ordinance at eight meetings. The Land Use Committee
and City staff are working on two separate ordinances, one that addresses short
subdivisions and large lot subdivisions (Chapters 17.12 and 17.16 BIMC), and
one that addresses regular subdivisions (Chapter 17.04). On June 11, 2003, the
City Council held a public hearing on the draft ordinance addressing short
subdivisions and large lot subdivisions. The Land Use Committee and staff are
in the process of revising the draft ordinance(s) based on comments received
from the state and at the public hearings and workshop. The consultant is
preparing an expanded report, which may contain information for inclusion in
the draft ordinance(s). The City needs additional time to consider and analyze
the evidence and information, and if necessary, to incorporate the information
into the ordinance(s). The City anticipates that the ordinance addressing short
subdivisions and large lot subdivisions could be ready for final consideration by
the 'City Council in September 2003.
15. RCW 35A.63.220 and RCW 36.70A.390 authorize the City to
adopt a moratorium on development, and to continue the moratorium for
additional periods of up to six months after conducting a public hearing on the
continuation of the moratorium and adopting findings of fact supporting the
continuation.
16. In Matson v. Clark County Bd. of Commissioners, 79 Wn. App.
641 (1995), the Court held that RCW 35.63.200, which is substantially similar
to RCW 35A.63.220, authorizes the enactment of a development moratorium or
interim zoning control. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 122 S.Ct. 1465 (2002), the United States Supreme
Court held that a development moratorium is not a per se taking under the
federal Constitution's takings clause. In so holding, the Court recognized that
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 might be inconsistent with the
provisions of a plan that is ultimately adopted.
17. 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 provides 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.
18. The City Council has determined that the Moratorium is
Ordinance 2003-29, Subdivision Moratorium Extension
Approved July 23, 2003 -5-
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, Section 2 of Ordinance No. 2002-
53, and Section 2 of Ordinance No. 2003-17 are amended to read:
Term of Moratorium. The moratorium imposed in this ordinance shall
commence on the effective date of this ordinance_, and The moratorium imposed
on applications for regular subdivisions and amendments to regular subdivisions
(Chapter 17.04 BIMC) shall end on Aagust--Sr-g0G3 February 5, 2004, and the
moratorium imposed on applications for short subdivisions and amendments to
short subdivisions (Chapter 17.12 BIMC) and for large lot subdivisions and
amendments to large lot subdivisions (Chapter 17.16 BIMC) shall end on
October 27, 2003,urdess 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, Section 2 of Ordinance No. 2002-
30, and Section 3 of Ordinance No. 2002-53 are amended to read as follows:
Imposition of Moratorium. A moratorium is imposed on applications for the
subdivision~ and for the amendment of any subdivision that would affect or alter
the oPen. space or lot lines required or established as a part of the subdivision,
(subdivision, short subdivision and large lot subdivision) of property located in
the R-0.4, 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.
Ordinance 2003-29, Subdivision Moratorium Extension
Approved July 23, 2003 46-
Section 5. Effective Date. This ordinance shall take and be in force five days after
its passage, approval and publication as required by law.
PASSED by the City Council this 23~ day of July 2003.
APPROVED by the Mayor the 24~ day of July 2003.
DARLENE KORD~)NOWY, ~/~or
ATTEST/AUTHENTICATE:
,
ROSALIND D. LASSOFF, Deputy City Clerk
APPROVED AS TO FORM:
ROD P. KASEGUMA, City Attorney
FILED WITH THE CITY CLERK: July 16, 2003
PASSED BY THE CITY COUNCIL: July 23, 2003
PUBLISHED: July 30, 2003
EFFECTIVE DATE: August 4, 2003
ORDINANCE: 2003-29
Ordinance 2003-29, Subdivision Moratorium Extension
Approved July 23, 2003 -7-