HomeMy WebLinkAbout148Michelle Farfan
From:
Sent:
To:
Cc:
Subject:
Attachments:
Carol Morris <carol_a_morris@msn.com>
Monday, June 27,2016 4:10 PM
David W. Johnson; Phil Best; Sarah Martin
Rebecca Mars
RE: Pleasant Harbor - Master Planned Resort
letter to commissioners pleasant harbor.pdf; development agreement article.pdf;
Concurrency ord.docx; Development Agreements model code 5-3.docx; SEPA
ORDINANCE.doc
Good afternoon: I will be mailing this to the County Commissioners. Please feel free to
forwar:d it to them by e-mail. I wanted to send the model ordinances in Word, for your
convenience.
Thank you for the opportunity to comment. Please place me on your mailing list for all
future actions relating to these development regulations for Pleasant Harbor.
Carol Morris
Catol Mords, Morris Law, P.C.
3304 Rosedale Street N.W., Suite 200
Gig Harbor, WA 98335
(2s3) 851-5090
F: (360) 850-1099
carclOcarolmorislaw.com
Website: carolmorrislaucom
This message is confidential, intended only for the named recipient(s) and may contain information that is privileged,and/or attorney work production
exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that the dissemination, distribution or copying of
this message is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notiff the sender at either the e-mail
address or telephone number above and delete this e-mail from your computer. Receipt by anyone other than the named recipient(s) is not a waiver of
any attorney-cllent product or other applicable privilege. Thank you.
1
From : djohnson @co.jefferson.wa.us
To: carol_a_morris@msn.com; pblaw@wavecable.com; smartin@co.jefferson.wa.us
CC: rebecca m a rs@gm ai l.com; djoh nson @co.jefferson.wa. us
Subject: RE: Pleasant Harbor - Master Planned Resort
Date: Fri, 24 Jun ZOLG 21:24:35 +0000
My answers below in RED:
From: Carol Morris Imailto:carol_a_morris@msn.com]
Sent: Friday , June 24,2016 1:17 PM
To: David W. Johnson <djohnson@co.jefferson.wa.us>; Phil Best <pblaw@wavecable.com>; Sarah Martin
<sma rti n @ co,jeffe rso n.wa. us>
Cc: Rebecca Mars <rebeccamars@gmail.com>
Subject: RE: Pleasant Harbor - Master Planned Resort
Good afternoon: Would it be possible for the County to simply put the date of the
document on it, so that everyone can identify the individual drafts? The date is in the
name of the document.
Also, I assume from your e-mail below that once the Planning Commission makes its
recommendation, the Commissioners plan to consider a change from that
recommendation (the document it will "act on"). Therefore, should we assume that
unless the document meets the requirements of RCW 36.70A.035(2Xb), the BOCC will be
holding another public hearing on the document that it will "act on?" If the BoCC does not
accept the Planning Commission's recommendation, they will have to hold their own
public hearing on the regulations.
If so, I would like to have a copy of this document that the BOCC will "act on." Again, it
would be very helpful if the document had a date on it, so that we all know exactly what
document the BOCC is "acting upon." You will have to make another request for that
document after it is created. We do not keep track of public record requests for "future"
records.
Thank you.
2
Carol Morris
Catol Moris, Morris Law, P.C.
3304 Rosedale Street N.W., Suite 200
Gig Harbor, WA 98335
(2s3) 8sl-s090
F: (360) 850-1099
carol@carolnonislaw.com
Website: carolmorrislaw.com
This message is confidential, intended only for the named recipient(s) and may contain information that is privileged,and/or attorney work production
exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that the dissemination, distribution or copying of
this message is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notiry the sender at either the e-mail
address or telephone number above and delete this e-mail from your computer. Receipt by anyone other than the named recipient(s) is not a waiver of
any attorney-client product or other applicable privilege. Thank you.
From: diohnson@co efferson.wa.us
To : pblaw@wavecab le.com; sma rti n @co. iefferson.wa. us
CC: carol a morris@msn.com; rebeccamars@gmail.com; diohnson@co.iefferson.wa.us
Subject: RE: Pleasant Harbor - Master Planned Resort
Date: Fri, 24 Jun 2076 20:04:12 +0000
Attached is the draft version the Planning Commission decided on. lt has not been finalized by the Planning
Commission, and is not the final version the County will be "acting on."
From : Ph i I Best [m ai lto :pblaw(owavecable.com]
Sent: Thursday, June 23,ZOLG 5:08 PM
To: David W. Johnson <diohnson@co.iefferson.wa.us>; Sarah Martin <smartin@co.iefferson.wa.us>
Cc: 'Carol Morris' <carol a morris@msn.com>; 'Rebeccamars' <rebeccamars@gmail.com>
Subject: Pleasant Harbor - Master Planned Resort
Greetings,
Please send me (as an attachment to your email reply to this email), at your earliest convenience, a copy of
the proposed development regulations (JCCTitle L7 and Title 18)thatJefferson Countywill be actingon
regarding the proposed Master Planned Resort at Pleasant Harbor. We are preparing comments, and there
3
are several versions in cyberspace, so I want to make sure we are responding to the most current and official
proposals.
Thank you,
Phil Best
4
Morris Law p.c.
Jr:lnre27,2016
Jefferson County Commissioners
Phil Johnson
David Sullivan
Kathleen Kler
1820 Jefferson Street
Port Townsend, WA 98368
Development Regulations and Developme,lrt Agreement for Pleasant Harbor
Master Planned Resort
Dear Board of County Commissioners:
I am an attorney representing anumber of property owners aggrieved by the planned
Pleasant llarbor Master Planned Resort. We have reviewed the proposed Development
Regulations and have the following comme,lrts for your consideration:
Process: First, the letter dated May 3, 2016 that the Commissioners sent to the Planning
Commission states: "Statesman Group,like any other applicant for the development of
lan4 is entitled to review and recommendation by the planning Cornmissio& and
ultimately a decision by the County Commissisners with respect to the proposed
regulations in a timely menn€f,'." If the County is considering the amendment to its
development regulations and a development agreement there is no ryplicant or
application for the development of land. In this letter, ths Qsmmissioners admit that the
"development regulations are gemeral uniform regulations that should apply to any
subsequent development that may occur within the MPR, regardless of the development's
specifics.o' Therefore, these development regulations are ameadments to the County's
code, adopted through a legislative process.
There is no deadline onthe County's decision on legislative actions. See, RCW
36.708.080, which requires that the County's code include a deadline for a final decision
on a'lroject permit ryplication " excluding arnendme,nts to comprehensive plans and
development regulations (RCW 36.708.020(4). There is also a state law which allows
property owners to sue municipalities for damages based on'the agency's failtre'to act
wirhin time limits established by law in response to a pnoperty owner's application for a
permit" but this does not apply to the County's adoption of an ordinance amending its
developmentregulations. RCW il.40.020,.010(6). See also, RCW 4.24.470,which
provides that a'tnember of the goveming body of a public agency is immune from civil
liability for damages for any discretionary decision or failure to rnake a discretionary
decision within his or her official capacity ..."
3304 Rosedale Street NW, Suite 200, Gig Harbor, WA 98335-1805
Phond: 253-851-5090 Fax: 36G.E50-I099 Email: carol@carolmorrislaw.com Web: www.carolmorrislanr.com
Re:
Letter to Jefferson County Commissioners
Jwe27,2016
Page2
If the developer has suggested that his due process rights would be violated unless the
Cormty issues a decision based on the developer's suggested time frameo please ask your
attorney to rcview Bogan v. Scott Hqris, 523 U.S. 44, I 18 S.Ct. 966 (1998). This case
de,monstates that the County andthe Commissioners individually, are absolutely
imnune from a demage claims allegrng a due process violation based on their legislative
activities.
Concurrency. The Growttr Management Act requires that the County:
must adopt and enforce ordinances wtrich prohibit development approval
if the development causes the level of service on a locally owned
hansportation facility to decline below the standards adopted in the
tansportation element of the comprehensive plan" unless hansportation
improvements or shategies to acoommodate the impacts of developme,nt
are made concun€nt with the development. These stategies may inolude
increased public tansportation service, ride sharing programs, de,mand
ma4agement and other tansportation systems management strategies. For
the purposes of this subjection (6), 'concurrent with the developme,nt'
means that ttre improvements or strategies are in place at the time of
developmen! or that a financial commituent is inplace to complete the
improvements or sEategies within six years.
RCW 36.70A.070(6Xb). While the County's developme,nt code includps several
definitions relating to concurrency, we couldn't find a concurency ordinance which
specifically required tlre County to prohibit development approval under the
circumstances id€ntified above. There is also a reference to concurency in the section of
the code relatirg to master planned developments, but it did not include a formal process
for review and denial of project p€rmit applications based on lack of nansportation
concurrency. Here is a more detailed explanation of what must be incltrded in the
County's concturency ordinance:
Each planning jurisdiction should produce a regulation or series of
regulations which govern the operation of thd juisdiction's concurrency
management system. This regulatory scheme will set forth the procedures
and processes to be used to determine whether relevant public facilities
have,adequate capacity to accommodate aproposed development. Li
addition, the sche,me should identifr the responses to be taken when it is
determined that eapacity is not adequate to acsommodate a proposal.
Relevant public facilities for these purposes are those to which
cotrcutrency applies under the comprehensive plan. Adequate capacity
refers to the maintenance of concurrency.
Letter to Jeffer-son County Commissioners
hrrp27,2016
Page 3
WAC 365-196-840(5). If the County doesn't have a concrrrerrcy ordinaoce that
complies with the requirements of the Growth Managernent Act for ransportation
facilities (at the very least), this should be the County's highest priority because it has
been a requirement under GI\dA since the early 1990's. If the County executes a
development agreernent with the developar before it adopts a concurfiency ordinance (as
requir-ed by GMA), and the 4greement addresses vesting of the applicable development
regulations, the developer will likely argue that it is not required to comply with the
Cormty's newly adopted concurrency ordinance. This means that the develcipment with
the mqst significant haffic impacts in the area will be exempt from one of GMA's
mandatory requirements.
A draft of the development agreement ttnt has been circulating shows that ttre developer
desires that the County agree to vest the proposed project under the applicable
dwelopme,lrt regutations for twenty yea$. A twenty year waiver under a tansportation
coucurrency ordinance ttrat should have been in effect in the 1990's would certainly be a
benefit to the developer and detimental to the public.
State Environmental Policy Act (SEPA). It appears thatthe County's SEPA
regulations were last adopted in 2006. In JCC Section 18.40.700, the County adopted the
SEPA Rules (chapter 197-ll WAC) by refereirce in Section 18.40.700(2), in 2006;
However, the SEPA Rules we,r,e substantially amended lm2014, The County should not
be implementing SEPA through outdated Rules.
It is also unclearwhettrer the County actually implements SEPA through the SEPA Rules '
in the WAC's. The County's development regulations include summaries orabbreviated
versions of the SEPA Rules - and there doesn't appear to be a formal adoption of the
SEPA Rules as they appear in the Wastrington Adminis;trative Code. My suggestion is
that.the County adopt a SEPA ordinance that is separate from the development code and
eliminate the modified SEPA language from the various chapters of Titles 17 and 18.
Attached to this letter is a draft of a SEPA ordinance, which has been upd*ed to show the
latest amendrnents to the SEPA Rules. Please feel free to modiff it for your purposes.
Attached to this letter is a draft of a concurrency ordinance which covers
sewer and water. Please fe€l free to modiff it for your puposes.
Ietter to Jefferson County Commissioners
Jr;mte27,2016
Page4
Title 18 - Chapter 18.15 Land Use Districts.
1E.15.025 Master Plannod Resoft. In subsection (2), the following al4rears: "The
Pleasant Harbor MPR is . . . subject to the provisions of JCC Tifle 17." In Section
18.15.115, it states that "l\,[aster Planned Resort is a land use designation established
under the Comprehensive Plan" and that provisions for the Pleasant Harbor MPR "are
codifid in JCC Title 17." While this Section 18.15.115 explains how to designate "new
master planned resorts (compliance with "this Article" and a forrral site-specific
amendment to the Comprehensive Plan Land Use lvlap subject to the findinS required by
JCC 18.45.080,' significant questions remain as to the integration of this chapter with
chapter 17.fi. ln addition, there is no guidance in this chapter for the resolution of
conflicts between regulations in the two separate tifles which purport to address the same
subject.
For example, Section 17.65.020lists the permitted uses in the Pleasant Harbor Master
Planned Resorq and Section 18.15.123 lists the uses that may be "allowed" in the master
planned resort classification. In Section 18.15.123, it states: "The following tses may be
allowed within a master planned resort classification authorized in compliance with RCW
36.70A.360." [n Section 17.65.020(6), waste water teatuent facilities are perrrittod usas
in the Pleasant tlarbor Master Planned Resort DisEict, but this is not an "allowed use"
within a master planned resort classification, according to Section I 8. 1 5. I 23.
In Section 18.15.123(9), the County may allow "any oilrer similar uses deemed by the
administator to be consistent with the purpose and intent of this section, the
C.omprehensive Plan policies regarding master planned resorts, and RCW 36.70[.3ffi."
firis is very confirsing. While 18.15.123(7) allows: (Tl Capital facilities, utilities and
services to the extent necessary to maintain and opgrate the master planned resorf the
term 'lraste water treatnent facilitied'is not limited to the maintenance and operation of
the MPR. "Waste water fieatuent facilities" are not eve,n defined in clrapter 18.10, and
this use is either prohibited or allowed only as a conditional use in the Resource Lands
and Rnral Residential Toningdesignations. Does this mean that a regional waste water
tneatuert plant can be permitted outight in the Pleasant Harbor lVlaster Planned Reson
through the'administative process?
18.15.125 Requirements for Master Plenned Resorts. The County is required by
RCW 36.70B.080 to list all of the elements of a complete application for a project permit
application. It is unclear whetlrer a MPR approval is a'lroject permit applicationl' or a
request for a comprehensive plan amendment. This needs to be clarifie( given ttrat thcr€
are dif[erent requireme,nts for processing of a project p€rmit application (which must
Letter to Jefferson Cotmty Commissioners
hrlne27,2016
Page 5
follow the procedures in chapter 36.708 RC!V). In addition, there are deadlines for
processing project permit applications (RCW 36.708.080), and the appearance of faimess
docftine applies in any quasi-judicial hearing on a project permit application (RCW
42.36.010.)
We assrme that this sestion needs to be read together with Sestion 17.60.040, even
though this is not stated here. Under 17.60.040, it appears that the developer must not
only get approval for a }das'ter Planned Res,ort under Sestion 18.15.126, but the developer
must also obtain binding site plan apprcval and a development agreement. In Sestion
17.80.030, the developer must submit a *Resort Plan application, wtrich consists ofan
approved binding site plan, including monitoring and operational plans, and an approved
developer agreemmt"
If the terms Master Plan and Resort Plan have the same meaning, only one term should
be used. If a binding site plan is required in the Pleasant Harbor Resort - apparenfly
because the property needs to be divided - there should be some explanation of the
ti-irg of the submission of all these applications. Based on Section 18.15.129, the
Master Plan is a legislative approval, so it would have to be grarted prior to.a binding site
plan (which is a quasi-judicial application). Depending on what the development
agreement does and when it is executed, it could be legislative or quasi-judicial.
18.15.126(1) Here, is the County complying with RCW 36.70B.080 by listing the
elements of a complete application for a Master Plan application? If so, there still is
nothing in this section which requires that the application demonstate compliance with
the ctrapters relating to the specific MPR designations (zoning or comprehensive plan).
In Section 18.15.126(1Xh), there is a requirenrent that the "concurrency requirernents of
the Comprehensive Plan will be met." The County is actually required to adopt a
conc,trr€ncy ordinance pursuant to RCW 36.70A.070(6Xb) and WAC 365-196-840(5),
whichprohibits development approval if the dwelopme,nt causes the level of serrrice on a
atrected tansportation faeility to decline below the standards adopted in the
cornprehensive planu unless certain conditions are met. If the Cormty hasn't adopted a
concurency ordinanceo the developer obtains a significant be,nefit.
There is no requirement that a SEPA Checklist be submitted as part of a complete
application" but in Section 17.80.040, "aproject level zupplemental environmelrtal impact
statement (SEIS) analping dwelopment rmder the Resort Plan is required p.nor to
issuarrce of buildi"g permits . . ." This conflicts wittl WAC 197-11-055(1), wtrich
requires that the SEPA process "shall be integrated with agency activities at the earliest
possible time to ensune that planning and decisions reflest envinrnmental values, to avoid
delays later in the process, and to seek to resolve potential problems."
Lettq to Jefferson County Commissioners
Jr:mie27,2016
Page 6
Let's assume that the County approves a MPR in the Pleqsart tlarbor Master Planned
Resort Residential'Recteation and Commerci alZ-one, for a development that includes a
regional waste water treatnent plant. Because there is no requirement that the developer
submit a SEPA checklist inorder obtainthis approval, the eirvironmental impacts will
only be analfzed by the County after approval. at the time the County reviews the
building permit for the waste water treatnaent plant. However, the County is prohibited
by SEPA from'liece-mealing" review of the environmental impac'ts in order to avoid
discussion of cumuldive impacts. WAC 197-11-060(5Xd).
18.15.126(2). Here, the County has required that a development agreement ascompany a
Master Planned Resort, in orderto *set for the development standards applioable to the
development of a specific master planns6 r€sort." The description of these "development
standards" is nothing more than a list of the tlpes of issues thd may be covered in a
development agreement between a municipaltty and a property owner.
Developrnent agxeements are authorizedby RCW 36.708.170 through RCW 36.708.210.
"A development agrcement shall be consistent with applicable development regulations
adopted by a looal government ptaoning under chapter 36.70A RCW." RCW
36.108.170(1). This means tlrat the County must astually adopt the development
regulations first, and once they are adopte4 the "development agreementmust set forth
the development standards and other provisions ttrat shall apply to and govem and vest
the development . . . for the &uation specified in the agreement."
The County should consider its developmort regulations relating to
dwelopment agreements. Development agreements are contacts, and like all confracts,
consideration is required. There is nothing that requires the County to allow a developer
to vest developme,nt standads for twenty yea6, without any consideration Mere
compliance with the County's development standards is not oonside,ration - all
development must comply with the Cormty's developme,lrt regulations.
Title 17 - Master Planned Resorts.
17.60.010 Authority. Although Title 18 JCC is mentioned here, there is nothing to
explain how Title 18 is integrated into this chapter 17.60. For example, it appears that
chapter 18.15 describes the process for a developer to obtain approval as a Master
Planned Resort. Beginning with Section 17.80.030, there is a description of a process to
be followed in order for the developer to obrtain approval of a Pleasant Harbor MPR.
Nothing in this Chapter 17.60 or chapter 17.80 explains tha the procedures in both
chapter 18.15 and chapter 17.80 must be followed by the developer for such approval.
The public is similarly in the dark about the effect of the MPR" how it will be processed
(is a binding site plan required in all instances?) and how it may be appealed.
Letter to Jefferson County Commissioners
Jwrc27,2016
PageT
17.60.030 Purpose and Intent This section states tbat the purpose and intent of the
Pleasant Harbor MPR code is to *set forth developme,nt regulations that comply with and
are consiste,nt with the Jefferson County Comprehensive Plan for future developme,nt ..."
It is tnre tbat RCW 36.70A.130(lXd) requires that "any amendment of or revision to a
comprehensive land nse plan shall confomr to [chapter 36.70ARCWI . . . and shall be
consistent with and imflement the comprehensive plan." However, this is required for
dl ame,ndments to the Cormty's dwelopment regulations. What is needed here is a
description of the purpose and intent of the Pleasant Harbor Master Planned Resort
chapter. This section needs to be much more specific, give,n that under Section
17.65.020(12) (and sftsr similar subsections ofthis code), the County Community
Development Deparhent will considerthispurpose and intent language to deemnine
ufrether a use is "consistent with the purpos€ of this zone and MPR" and therefore
allowed in the zoae.r
Here is the effect of the County's bland purpose section When the Community
Development Director is grven an application for a development in this zone, and the
poposed use is not listed as 'lermitted outight'in the zone (in the list of uses set forth
in Section 17.65.020), then the Director must determine whaher it is "similar" to these
other uses. In addition, the Djrector must consider whether the use is 'tonsistent with the
purpose of the zone andthe MPR.' Ifthe Cormty doesn't include any language which
acttralty describes the purpose of the zone and the MP& then the analysis is limited to
ufuether the use is similar to the uses in Section 17.65.020. A review of the uses listed in
Section 17 .65.020 discloses that the tules are wildly divergent and absolutely any use at
ell could be viewed as "similaf'to the others in Section 11.65.020. This provides the
dweloper with a significant advantage because all uses are allowed, conhary to sound
planning principles. The adverss imFacts of incompatible uses will have to be absorbed
by the public and surrounding property owuers.2
17.60.130 Enforcement Section 17.60.130 should be clarified to state that the County
may enforce the code using any available legal remedy. The County is not limited to the
procedues in chapter 18.50 to obtain compliance with the code. For example, if there is
abreaph ofthe development 4gt€e,ment, the County canjudicially enforce the agreement
in a breach of contact action. The County should also revisit their penalty provisions in
I Insertion of language to describe the purpose and intent of the Pleasant Harbor MPR should not be
difficult if the Couttty has adoptod it as a subaea of the comprehemsive plaq and the regulations proposed
in this chapter arc achnlly consist€nt \ilith the comprohonsive plan. Howcver, tro Comty's purposofut
omission of such o(press language indicates an intentto allow all types of uses ofproperty, as shown in
Scction 17.65.020, regardless ofthe compatibility oftte use with zunounding usos ortte environmsnt.2 Also, kgep in mind that there apparently will be no SEPA review until the building permit applicdion
stage, which means thd few membqs oftre public (if any) will bc given notice of the submission or
issuance of the building permit
Letter to Jefferson Cormty Commissioners
Jr:mre27,2016
Page 8
Section 18.50.1l0(l)(c), which imposes a penalty of $100 per day, per violation - this is
exlrernely low penalty compared to other municipalities and is not sufficient to encoumge
compliance.
17.55.020 Pemitted Uses. As stated in Section 17.60.030, these dwelopme,nt
regulations must "comply with and [be] consistent with the Jefferson County
Comprehe,nsive Plan for future development within the boundaries of the Pleasant Harbor
Marina and Golf Resort lvlaster Plamed Resort." Howwer, I could not find anything in
the comprehensive plan to indicate that the uses set forth in Section 17.65.020 were
consistent with the Subarea Plan or actually contemplated within this specific area
For examplg in the Brinnon Subarea Plan, page 46, the following appears: "We envision
the Black Point MPR to be significanfly different and smaller in scale than the Port
Ludlow MPR in tbd it would be less stnrcturcd towards dwelopment of permrnent
resideNrt'nl dwelopment end more so towards providing recreational opportunities
and support selvices for the traveling public ln a manner that will benefit locel
residenb.' @mphasis added.)
Section 17.6.030 is inconsistent with the Subarea Plan because practically every possible
use of land is "perrritted outight" in Section 17.65.020, withthe exception of industial
ule. In Section 17.65.020, there are no uses listed as requiring a conditional use permit
(which would allow the decision-maker to impose specific conditions to rnitigate
negative impacts of the use on the surrounding prcperty). Instea4 the uses p€rmittd
outight in this zone range from the most sensitive Gingle family residential) to extemely
intense (waste water teatmqt plants).
Few of these permitted uses a€ defined in chapter 18.10. This is externely problematic
because a determination that an application is consistent with the code is based on a
comparison of the proposed use with a list of "permitted" uses in individual zonrng
classifications. ffthere are no definitions of the permitted uses to gtride the Director's
use of discretion, the rezult can be arbitrary enforcement of the code. For example,
'lnedical seryices" are a permitted use in this z.one- would that include a hospital? This
list does not appear to have been compiled using haditional zoning considerations, which
would place compatible uses in the same vsningclassification. Single family homes can
be constnrcted right next to a waste wder treahent plant - there appears to be no
conc€nr regarding the secondary land use impacts of the latter use, such as odor. A
public school (included in thc only defined term'lublic facilities" in Sestion 18.10.160)
can be constucted right next to a tavern or pub.
Letter to Jefferson County Commissioners
June 27,2016
Page 9
Because Section 17.65.020 allows such a wide variety of possible uses of property to take
place within this zoning classificatioq the County witt Ue required to allow any use of
property wen if lt is not listed. Review Section 17.65.020(12), which allows "othe,r
similar uses consistent with the purpose of this zone and MPR as determined by the
Department of Community Development." Again, the "purpose" section (t7.60.030), it
includes nothing at all - other than the County's intent to make chapter 17.60 consiste,nt
with some rmidentified sections ofthe comprehensive plan. Every possible use of land is
allowed in Section 17.65.020, so it would be e:rtrremely difficult for the County to assert
tha a prcposed usp is asf "similar" to this wide variety of undefined and vague uses.
Allowing all uses to be permitted outig[t in a particular zone is also inconsistent with the
County's actions with regard to other zones. Under Section 18.15.040, the County has
established various categories of land tue. These are 'fuses allowe{" "discretionary
uslos;" "conditional uses" and "prohibited uses." Considerthat a'\naste water fiednent
planL" must be approved with a conditional use permit if it is to be located in a rural.
residential zone, yet it is allowed right next to single family residential uses inthe MPR
zone. *Emergency sef,vices (police, fire, EMS}' are also subject to a conditional use
permit everywhere but the MPR zone. Section 18.15.040 (table).
There is a procedure in Section 18.15.045 that may or rnay not withstand a challenge:
This code recognizes that not every conceivable use can be identified and
that new uses may evolve over time. Furthemrore, it establishes the
adminishator's authority to review proposed'unnamed' uses for similarity
with other tues in this code and to eillure consistency of the proposed rse
with the applicable district. When a use is not specifically listed in Table
3-1 (or, if proposed within the hondale and Port lladock UGA, in chapter
18.18 JCC), it shall be reviewed as discretionary 'D' use by the
administator, using a t)?e II process specffied in Chapter 18.40 JCC. The
administator shall we the criteria in JCC 18.15.040(2) to detei:rrine and
establish whether the proposed unnamed use shall be classified as an
allowed use, a conditional use or prohibited within the applicable district.
First, as we have explaind the Comty's code doesn't define most of the uses listed in
the MPR zone (and we have not checked the'tse table" to daennine if this is true
throughout the code). If the uses are not define4 then we question how the arlminisftalsl
makes a decision whether a particular use is subsumed within a particular undefined term.
Without definitions, the administrator's decision is Furthermore, state law requires that
the County's code establish the procedure for processing a project penmit (RCW
Letter to Jefferson County Commissioners
Jtme27,2016
Page 10
35.708.060). The County is specifically prohibited from'tnaking up" the procedure for
processing aproject permit application after it is submitted, except for issues of code
interpretation. RCW 36.708.030(3).
17.70.010 hrpose of the MPR OSR (Critical Areas Protection) zono. In Section
17.70.010 and throughout the proposed regulations, it appears that the Cotmty is
attempting to establish critical areas regulations on an adhoc basis for the develope(s) of
property in this zone. Instead of refereircing the County's existing critical areas
regulations (whichwe assume were adopted following prop€r procedure andusing best
available scie,nce), the critical aleas reguldions appear to have been crafted specifically
for this developer, with regard to buffers, weflands, Ketfle Ponds, sole source aquifers,
etc.
The regulations in this section are wholly inadequate to provide any environmeirtal
protection because thcy are optional 'No golf course grcens should be constnrcted
over the sole-source aquifer, and site grading and excavation should be minimiz€d, ag
demonshated by a County reviewed and approved grading plan . . ."
Section 17.70.010 imposes conditions tbat may or may not be consistent with the
County's critical areas ordinance - and may or may not follow the procedrnes in that
ordinance forpublic notice and appeal. For example, in Section I7.70.010(c)(4), thene is
a description of the manner in ufuich wetlands may be 'tlled.'
The County should instead be requiring that the developer submit an application for a
Master Resort Plan showing compliance with the critical areas ordinance. The County
should then review the application and, following the procedures in the County's critical
areas ordinance, and determine ufoether it meets the code requirements. The County has
been required by GMA to adopt critical areas regulations to address sole source aquifers,
weflands, etc. (RCW 36.70A.172 which requires the use of best available scie,nce). There
is no reason for the County's adoption of different critical areas regulations in the
individual chapters of the County's code for each type of development application.
This Section 17.70.010 does not actuatly includo development regtrlations, it only lists a
number of conditions that the County plans to impose on the MPR Aside from the
problems identified above with this list, these "conditions" are duplicative, possibly
inconsisteirt and some are unknown (because they are only referred to by an old
ordinance that no one thought important enoug[r to incorporate into the code). For
enample, in Subsection 8, the MPR applicant must: 'tdentifr wildlifo rxre ancas wilhin
the site and provide for set-aside and protection of core wildlife habitat areas and
connecting corridors." In Subsection 10, the following appeats: "All development
within the PHMPR must comply with the requirements for buffer retention, wildlife
Letter to Jefferson County Commissioners
Jlurc27,2016
Page I I
protection, greeirbelt ret€,ntion and maintenance and establishme,lrt of permanent
protective easements for these resounces as well as the other specific requirements of
Jefferson County Ordinmce 0l{18-08, which was part of the Board of County
Commissioners' alrproval for establishment of the Pleasant tlarbor Planned Resort." The
County should consider whether an enforceable condition can be crafted, grrnen all of the
above vague references to *set-asides," *protbction of core wildlife atreas,' '\uildlife
protection"" aod establishment ofpermanentprotective easements forthese resoutces."
Wbat wildlife will be protected? What document will evaluate the need for set-asides
and det€rmine how large the wildlife protection areas will be? Ifthis is a process that
will be accomplished administratively, after the building permit application bas been
zubmitte4 public review will be effectively avoided.
17.75.020 Permitted Uses (MPR-MV zone). Same comments as rmder Section
17.65,020. In addition, the uses allowed as'lermitted" should be defined inthe Code.
The public should not be required to guess at the mnge of possible uses of property that
the Connty may allow in this zone. Section 17.15.020(12) is objectionable for the same
r€asons set forth above - the permitted uses aren't defined at all, so what usgs of land
would ttre Director find "similat''to these undefine{ vague terms?
Section 17.75.020(3)(a) allows "ovetr-water buildings " butthey'tnust be constnrcted so
as notto impede migating fish and to minimize shading." Do any of the County's
regulations allow a property owner to construc't a new *over-water buil.ling?" In Section
17.75.M0,the County has requircd that all new stnrctures located withinthe shoreline
jrnisdiction must comply with the setback requirements of the County's Shoreline Master
Program - wouldn't an over water building violate such setbacks?
17.80.010 Resort Dwelopment This ohapter 17.80 is exhemely confirsing. Section
I 7.80.01 0 states that this chapter "sets out an environmental review process for any
future resort rilevelopment and provides processes for reviewing major or minor revisions
to the Resort Plan." Nothing refers to chapter 18.15, which describes the procedure for
obtaining a Master Resort Plan. There is no description of the mannetr in which this
chapter 17.80 supplements chapter 18.15 (ifthat is even the case).
Secon4 what is the Resort Plan, why is a separate envfuonmental process needed to
review this type of application and why is the procedure for reviewing major and minor
revisions to the Plan here (inst€ad of chapter l8.l5X Is it a comprehensive plan
amendment? Why is there a separate envircnmental reviewprocess -why doem't the
application follow the same SEPA Rules as all other development?
Letter to Jeffercon Corurty Commissioners
Jwrc27,2016
Page12
Under Section 17.60.040,the Cormty has required every development of property in the
Pleasart Harbor MPR to obtain a Binding Site Plaru which apparently must follow the
procedures in chapter 18.35. If tlrere is a Binding Site Plan for the property, what is the
effect of an application for a major or minor revision to the MRP and Binding Site Plan?
17.80.020 Development cap. Here, the County has established a"development cap" of
_?_ resideutial units and a cap of 56,608 square feet of resort commercial, reail,
r€staurant and confer,ence space, not including internal open space. Does this mean that
there is no "cap" on the amount of space devoted to waste water teatnqrt plants,
hospitals, police stations, erc.? What is "internal open spaoe?" What is the "cap" based
on?
17.80.030 Resort Plan and Development Agreement Here, it states that the *Resort
Plan' is the same thing as the "Master Plar\'which apparently is a combination of the
Binding Site Plan and the Development Agreement. This is really confusing, especially
because there is no reference at all to chapter 18.15. In addition, the procedtrres for
minor and major rwisions do not reference the Binding Site Plan or the frct that a
Develop,ment Agree,me,nt might need to be ame,nded as well.
17.80.040 Permit Process for Resort Development Isn'tthe process to obtain a
Ivlaster Planned Resort approval in chapter 18.15? The,re is no reference to 18.15, and
this section includes some abb,reviated version of application materials and permit
processing procedures. Agaiq this creates confirsion becaue the County already has a
procedue for Maser Plaoned Resorts and Binding Sito Plans, with a section describing
the elements of a complete Binding Site Plan application and MPR application (Section
18.15.126). If the SEIS is an additional requirement for the MPR application in Section
18.15.126, the langrrage should be clear on this point. If the County isn't requiring any
SEPA review until the building permit application stage, this is inconsistent with SEPA
for the rEasons cited above
17.80.040(4) This nrbsection skips the process for processing the permit application" the
criteria to be used to approve the application, eto., (Section 18.15.129,18.15.132,
18.15.135) and simply annolmces the Deparhent's ability to "impose mitigating
conditions or issue a denial of some or all of the Resort Plan, based on the environme,lrtal
review . . ." Doesn't the procedures established by the County for review of a MPR in
chapter 18.15 apply? The County can't simply review the SEPA checklist or the SEIS,
and then isstre a decision. The Courty is required to first determine whether the
application is complete, it mustreviewthe application for consisteircy with the code
requirements, determine whether the criteria for approval have been satisfie4 and then
iszue a decision. The decision may be an approval, apprcval with conditio$t or a denial.
Letter to Jefferson Counly Commissioners
Jlurnre27,2016
Page 13
17.t0.040(O. This section is inconsistent with law and must be eliminated. It states that
'Tollowing completion of the SEIS building permits may be issud following appropriatb
plan review, for projects analyzd in the SEIS." If thc underlying permit here is a
Binding Site PlarU then the Binding Site Plan must issue before building permits may
issue. If the underlying permit is the MPR, then the MPR must issue before building
permits may issue.
17.80.040(6). Again, the process is completely jumbled with the statement that there
must be "completion of review and approval of a full resort buildout plan through the
SEIS process." The 'SEIS process" is not a stand-alone permit process. The underlying
permit is either the MPR or tle binding site plan. Also, phasing should be addressed in
the development agreement and/or the MPR (Section 18.15.120(lxi)).
1280.050 Bnvironmental Rwierw for Resort PIan Developmenl In zubsection (l),
the,re is refercnce to *all project level applications." Wbat are these? Applications for
Binding Site Plans? Building permits?
Section 17.80.050(1) provides: "All project level applications will be presumed to meet
the threshold for a SEPA threshold Determination of Significance o(cept where the
SEPA Responsible OfEcial determines that the application rcsults in only minor
impacts." This is inconsistent with the SEPA Rules that must be adopted by the County.
First, a SEPA checklist must be subnritted for all applications unless they are
categorically exemprmder WAC 197-11-800. Nexl the County's SEPA Resporsible
Official is required to per:form the threshold determination proc€ss as described in WAC
197-11-330. The County can't ignore this SEPA Rule and adopt aprovision with
standards for "presumptioru" applicable to threshold determinatioru. (This is the danger
infailing to adopt a SEPA ordinance and instead *tempting to integrde the Countyos
sum4ary interpretations of SEPA into its code.)
With regad to the use of existing documents, the County is required to follow WAC 197-
1l-600, not someone's interpretation of this SEPA Rule in Section 17.80.050(1).
Section 17.80.050(3) requires tbat subsequent pbases of SEPA review include certain
information - SEPA is not the undolying approval or permit. At what point in time is
the developer required to perforrn subsequent phases of SEPA? Building permit
ryplication nrbmittal is too late in the process and "piece-mea1s'environmelrtal review.
Also, the timing of such review makes no sense, in light of the requireme, t tbat
conditions fashioned after reviewing such information mrrst be in the developr.nent
agreeme,rt. Doesn't'the developer ptan to execute tbe development agreement after the
adoption of these developmelrt regulations?
Letter to Jefferson County Cornmissioners
Jwrc27,2016
Page 14
Section 17.80.050(4) mentions a'lreliminary scope for future development within the
Pleasant llarbor MPR" that mtrst be *consistent with the approved Resort Plan." At whd
point in time would apreliminary scope for future development be performd especially
if the Cotrnty intends to fust sign a dweloprnent agre€mqil that vests the developer to the
development regulations for the next 20 years?
17.80,ffi0 Revisions to Resort Plrn. This sectionprovidesthat acomprehensive plan
ameirdment and related 26ning action is required if there is a "proposed revision of size
or scpoe to the Pleasant Harbor MPR boundary or zone changis within the MPR" In
Section 17.80.080, a'hajor revision" to the Resort Plan is one rhat'\uill restrlt in a
substantial change to the resort including: change in use, increase in the int€nsrty of use,
or in the size, scale or density of development or changes which may have additional
impacts onthe euvironment beyond those reviewed inprevious e,nvironmental
documents."
The description of the process and decision-makers is inconsistent. If a comprehensive
plan amendnent (to the text and map) is required for a major revision to the MP& this is
a legislative action performed by the County Counoil. Section 17.E0.080(2) states that
the Hearing Examiner makes the decision on major revisions, except where there is also a
prcposed change to the proposed boundaries of the MPR. My point is that, according to
this sectioq a comprehensive plan amendment could be both a boundary and a zoning
change.
The Cormty must establish a clear distinction betvveen what is a Tlpe trI procedure
(quasi-judicial) to be heard bythe Hearing Examiner, ora Tlpe V (egislative) decision
to be made by the County Commissioners. This is not a snall problem, as the
Commissioners will be immune from liability fortheir legislative decision-rnaking and
sttbject to liability for quasi-judicial decisions. It is also important that this procedtre be
clear for the public, developers and planning staff, because the appeal procedure will be
different, depending on the tSpe of action take,n by the County. Hearing Examiners atso
should not be involved in legislative desisisa-making -- that is the role of the legislative
body.
It should also be noted that the County is not required to approv€ a comprehensive plan
amendment solely based on the criteria in Section 17.80.080(3). However, the County is
reouired to consider whether the application is consistent with the Crro\ /th Management
Act (chapter 36.70ARCSD before approving a comprehensive plan amendment.
(C.onsistency with GMA has been omitted from Section 17.80.030(3).
Letter to Jefferson County Commissioners
June 27,2016
Page 15
.17.m.070 Minor nevigions. Here, the County allows the Directorto address minor
revisions to the MPR wlren "such revisions do not result in a substantial change to the
intent or purpose of the Resort Plan in effect." However, this section lists four other
criteria that must be met before the revision will be deemed "minor." One criterion
allows a minor revision wtren the developer wants to propose a new use that'1nodifies
the recreational nahue and intent of the resort." Section 17.80.070(l)(d). Given the
variety of uses that are allowe( it appears that the developer would be able to propose
just about anything through a minor rcvision - which is a Type II process that the
Director could approve without a public hearing.
The County is required to list all of the elements of a complete application for a per,mit in
its development regulations (RCW 36.708.080). This section 17.80.070 does not address
this statutory requirement yet one criterion for a minor revision is that it must not 'lhave
additional impacts on the environment or facilities that are addressed in the development
plan." (What is the "developme,nt plan?" Is that the MPR?) If ttre County doesn't
require that a complete application for a minor revision include a SEPA checklist, how
will the County know wtrether or not the proposed *minot''revision has *additional
impacts on the environment?"
Development Agrement. Section 18.40.830(5) is inconsistentwith law @CW
36.708.170(1)) becanse it allows the County to execute a developane,nt agreement wiltr a
property owner that is inconsistent with its existing develppment regulations. Please
review the ordinance provided for developne,nt agreements and the article on this
subject.
CONCLUSION
Here is a sunmary of our comments and objections to the adoption of the new
development regulations :
1. The Corxrty has not complied.with the Grrowttr Management Act by adopting a
tansportation concurrency ordinance as required by RCW 36.70A.07O(6Xb). The
County's rcference to rnainteirance ofthe levels of service in thc comprehensive ptan is
insufficient.
2. The County's development regulations, which provide an incomplete
summaxization of the Cormty's understanding of SEPA, hstead qf imFlementing the
SEPA Rules as they are written (in Chapter 197-ll WAC), are contrary to law.
Letter to Jefferson County Commissisnsls
Jvrc27,2016
Page 16
3. The County's development regulations are unintelligible with regard to the typ{$
of approval required for the Pleasan! llarbor resort, the ele,nrents of a complete
application" the decision-makers on the applicatiorl the criteria for approval, the appeal
procedures, the procedures for amendment (major or minor), etc. The County has
adopbd what appears to be two separde procedtres for master planned resort plans in
titles 17 and 18, and there are few, if any cross references to the other sections. Many
provisions are incorsistent and incomplete.
4. The County has adopted zoning designations for the Pleasant llarbor zones tbd
benefit only the developer, and provide a significant detiment to the public. The County
apparently plans to allow a wide variety of incompatible (and undefined) uses in the
same zorre, without any additional review of the negative impacts on the
surrounding property or the public. This is not only contary to sound planning, it
also is inconsistent with the Cormty's code with regard to the same urcs in other zones.
We could find nothing in the comprehensive plan or subarea plan that alloured many of
these uses.
5. The County was required to adopt and enforce a critical areas ordinance using
best available science. Similar to the County's teatnent of SEPA" there are partial
sruilnaries of the CAO in the new development regulations. This creates confirsion
becarrse thene is no way to tell whether the developer is required to comply with the CAO
or just the dwelopme,nt regulations relating to the MPR
6. , There are significant differences in legislative vs. quasi-judicial processi4g of
applications and approvals. The County's proposed development regulations mix up the
two tlpes ofprocessing and allow legislative actions (such as a comprehensive plan) to
be amended through a quasi-judicial action Oearing examiner, Tlpe III process). A
dweloper is apparenfly required to obtain multiple approvals, yet the process for
revisions do not address modification of the other approvals (such as a binding site ptan).
This is not only contrary to law, it also confises everyone, could impose liability on the
County in situations where it has none, and forces the public to hire attomeys just to
figure out how to participate/appeal the County's actions.
The above is only a partial sunmary of otr objections. If you would like furtlrer detail on
my comments, please let me know. Thank you for the opportmity to corrunent on your
development regulati ons.
Letter to Jefferson County Commissioners
Jt;rnle27,2016
Page 17
Very
A.
Enclosures
Model SEPA Ordinance
Model Concurrency Ordinance
Model Development Agree,lnent Ordinance
Development Agreement Articleoc: Clients: Carla Kelly, Rebecca Mars, Carol Morris
DEVELOPMENT AGRBEMENTS
TO MITIGATE THE IMPACTS OF DEVELOPMENT
(RCW 82.02.020)
AND
66DISCRETIONARY'' DEVELOPMENT AGREEMENTSI
by
Carol A. Monis
Morris Law, P.C.
3304 Rosedale SteetN.W., Suite 200
Gig Harbor, WA 98380
253-851-5090
carol@.carolmorrislaw. com
Weboite: carolmorrislaw.com
I Speech delivEred before tre Washin4on State Associdion of Municipal Attorneys (2015).
I
A. What is a'I)Gvelopment Agreement?' A development agree,melrt is a contract
entered into betrneen a property owner and a municipality to address the iszues that may
arise during the lengthy and expensive project planning and constnrction process. It may
address any number of developme,nt issues, including, but not limited to, conditions of
annexation, extension of vested rights, the responsibility of each party for infrastnrcture
installation, liming of such installdion for phased developments, dedications, palment of
fees to the municipalrty and code enforcemeirt.l
B. lYhat ic a sDe,velopment Agreement to Mitigate the Impacts of Development
(RCW 82.02.020) ?' Not all development agree,ments arp the sarne. Consider the
situation in which a developer submits an application for a preliminary plat to the city,
and the city determines from a taffc study that off-site road improvements arc
reasonably nece$ary as a direct result of the preliminary plat2 ffthe city were to inpose
a fee, tax or charge on the dwelopmen! even if that were used for payment of off-site
road impnovements, it triggers RCW 82.02.020 (which generally prohibits such fees,
taxes or charges). Howevetr, RCW 82.02.020 creates an exception for'toluntary
agpements" that allow papnent in lieu of dedication of land or to mitigate a direct
impact that has been identified as a direct result of a proposed development strMivision
or plat.
Although RCW 82.02.020 uses the term'toluntary agreement" dwelopers have argued
that where the local govetament's approval of the propod permit application is
conditioned upon the agreem.ent's execution, such agreements are not voluatary.3 The
Washington courts have disagreed, finding that:
within the context of RCW 82.02.020,the word 'voluntar5r' mearur
precisely that the developer has the choice of either (1) paying forthose
reasonably necessary costs which are directly attibutable to the
developer's project or (2) losing preliminary plat approval. The fact thd
the developer's choices may not be betlveenperfect opions does not
render the 4greement 'involuntary' under the statute. . . . Moreover, [the
developerl does not claim that he has absolute right to receive plat
approval, he clearly does not. The county is authorized to wittrhold plat
approval if appropriate provisions have not been made for the public
health, safety and general welfare.a
Usually, approval of the project p€mnit decision will include the condition to mitigde the
impacts from the direct rezult of the development. However, there are any number of
r€asons that a city and developer may enter into a separate development agreemelrt
addressing the mitigation. For example, a developer may be required to install a right
hand tum lane to address the traffc impacts ofthe development. The city may be
planning a transportation improvement project in the next five yearss to include a right
hand turn lane in that location. The parties may enter into a development agreement that
2
requires the developer to pay the cost of this right hand turn lane to the city, and the crty
will construst the improve,rnent.
There are other reasons to incorporate mitigation conditions in a development agreement.
Take the situation in which an owner of property in a prelioinry plat application
proposes a large subdivision and planned tmit development (PUD). The development
agreement includes certain improve, ents to roads/public amenities that cunenfly serve
otlrcr-me,mbers of the public. Fotr years after preliminary plat and preliminary PUD
apprcval, the developer begins work, but is only partially finished before the developer
runs out of funds and abandons the project. There was no that the developer
post a bond for these improvements at this stage. The bank takes over the property,
rnarkets it, but refuses to hire a contractor to finish the public improvements. At this
point, two months remain before the preliminary plat and preliminary PUD approval
expire, along with the condition requiring improvements to the roads/public ame,nities.
The city's enforcernent options to force cons;truction of the public improveme,nts are
limited.
Assume that tlre faots are the same in the above situation, except for a development
agreement that has been executed between the city and the property owner, which was
recorded against the property. The development agreement requires construction of the
amenities and describes the city's remedies for non-performance, which include specific
enforcement of the agrcement, use of the city's code enforce,ment proce&res which
imFose civil penalties - all e,nforceable against the property owner and hiVlrcr successo$
in any beneficial inter€st in the property. The duration of the dwelopment agreement is
much longer than the expiration of the underlying preliminary plat approval,
C. lYhet is e (diEcnetionary'development egreement? Local governme,nts are
not required to enter into dwelopment agreements with property owners. The
dwelop,ment agreement statutes provide ttrat:
A local govenrment gqgy enter into a development agreeme,nt with a
person having ownership or confrol of real property within its jurisdiction.
A crty gqgy enter into a developmeirt agreement for real property outside
its boundaries as part of a proposed annexation or a service agree,me,nt.6
A property owner may ask the city to enter into a development agree,ment for the sole
ptrpose of extending the vested rights associated with an approved project permir This
is a request for a benefit (extended vested rights). Because there is no require,rrent that
the city agree to extend the developer's vested rights, the crty may decide not to enter into
the developme,nt agreemeirt, and RCW 82.02.020 does not apply.
Wheir considering whaher to grant ortended vested rights, cities need to consider the
impact on the public. Take the example where the city signs a development agfe€merf in
2010 to allow a developer to vest an approved preliminary plat rmder the city's stonn
wat€r regulations for twenty years. The approval requires that the dweloper constnrct the
storm water facility, and then tum it over to the city for ownership and maintenance
)
responsibilities. In 2030,the city may end up with an undersized storrr water facility,
with the associated liability for flooding.7 As stated by the Washington Supreme Court:
Development interests and due process rights p,rotected by the vested
rights doctrine come at a cost to the public interest. The practical effect of
recognizing a vested right is to sanction the qeation of a new
nonconforrring use. A prcposed development ufrich does not conform to
newly adopted laws is, by definition, inimical to the public intErest
embodied in those laws. If a vested rights is too easily grantoq the public
interest is subverted-t
After car€fuI consideration of the consequ€nces of a discretionary development
agreemen! if the city decides to proceed, the city should require consideration fiom the
developer. A contract must be zupported by consideration in order to be enforceable.e
D. What type of consideretion is requircd for e Dwelopment Agreement?
Whether a contract is supported by consideration is a question of 1aw.l0 As stated by the
Washington Supre,nre Court:
Legal sufficiency is conce,med not with comparative value but that which
will support apromise. . . . Anything which fulfills the requirements of
consideration will support a promise whatever may be the comparative
value of the consideration and of the qing promised.lt
lvlany cities believe that the only consideration required for a development agreemeirt is
the sales tan revenue that will be received from a project Some cities grant tengthy
qctensions of preliminary plat approvat (and associated vested rights) without any
consideration at il, to accommodate developers.
While coutts do not inquire into the adequacy of consideration @ut employ a legal
urfficiency test), cities still need to be careful to avoid challenges based on art VIII, sec.
5 and 7 of the Washinglon Constitution (rrnconstitutional gift ofpublic ftnds or lending
of credit). Cities must also be mindful of the prrecedent-setting naturc of a decision to
provide a benefit to a developer for no consideration, because the next developer will ask
forthe same deal.
E Do ell l)evelopmentAgreements and Amendments to Dwelopment
Agneements follow the same procedure for execution? The conservative answer is
yes. This is because both RCW 82.W.020 and discretionary developmelrt agreements
may include many of the same "development standards'o listed in RCW 36.70B.170(3).t2
For example, a development agreement may include "the amount and payment of impact
fees imposed or agreed to in accordance with any applicable pnovision of state law . . ."
RCW 36.708.170(3Xb). In addition, RCW 36.70B.170(3(c) contemplaes that a
development agreerrent would cover "mitigation m@sures, development conditions, and
other requirements under chapter 43.21C RCW [SEPA]."
4
Therefore, every development agrcemett, whethet subject to RCW 82.02.020, SEPA, the
annexdion statutes, or any other state law, should followthe procedures in SEPA
(development agreeme,lrts are not categorically exompt), and RCW 36.108.170 through
36.708.210. These statutes require that the municipality considering a development
agreement must provide public notice of a public hearing, hold a public hearing on the
agrce,ment, and adopt the agreement by resolUion or ordinance.l3 The agreement is then
recorded against the property.l4 Additional steps are required, depending on whether the
development agreement is associated with legislative or administrative/quasi-judicial
action.
With regard to amendments to the development agreement, consider that RCW
36.7 0B..200 requires that:
A county or clty shall only approve adevelopment agreement by
ordinance or resolution after a public hearing. The county or city
legislative body or a planning commission, hearing examiner, or other
body designated by the legislative bodymay conductthehearing.
A development agreement is a contract, and must be signed by the city council. If the
city council authorized the original development agreerne,nt after apublic hearing
(regardless of whether the city council or hearing examiner held the hearing) with a
resolution or ordinance, then any amendment mtst also be accompanid by aresolution
or ordinance that repeals/amends the resolution or ordinance that was used to pasVadopt
the original development agreemenl A hearing examiner can't pass a resolution or
ordinance to repeal a previous resolution or ondinance and a heariag examiner can't
execute a conhact on behalf of the city council. Therefore, only the city cormcil can
a4€nd an approved development agreement. The Open Public Meetings Act (chapter
4230 RCW) prevents the crty council from taking action on the development agree,me,nt
except in a public meeting. Rather than risk a challenge that the prcper procedure was
not followed for the modification of the development agrcement, a public hearing should
be held priorto execution of the modified development agreement and passage of the
new resoltrtion/ordinance.
Some may argue that rnany cities could use aprocedure to administratively amend
development agreements, similar to the process used for the amendment of approved
preliminary plats (defining major and minor amendments, allowing an administative
approval for the latter). However, there is nothing in the SuMivision Act (chaper 58.17
RCW) which requires that a city adopt the preliminary plat approval by ordinance or
rpsolution. To ensure that the modification to the development agreement is valid and
enforceable, the sarne procedures in RCW 36.70.170 through 36.708.200 should be
followed for any modification.
F. Can a city enter into a dwelopment agreement if it is not consistent with the
c-ity's development regulations or the comprehensive plan? In some instances, a clty
may be willing to follow the procedtres for the adoption of the development agreeme,nt,
but the parties seek to avoid the following requirernent in RCW 36.708.170(1): "A
5
development agree,ment shall be consistent with applicable dwelopment regulations
adopted by a local governme,lrt plnnning under chapter 36.70ARCW." Some cities
planrring under GIvIA have actually adopted codes th* specifically allow "dwiation"
from adopted development standards.
Other cities have eirtered into developme,nt agreements without considering urhether the
dwelopment standards in the agrcement are consistent with the city's comprehe,lrsive
plan. As stated in RCW 36.10A.120: "Each comty and city that is required or chooses
to plan under RCW 36.70A.040 [the Crrourth Manage,ment Act] shall perfonn its
activities and make capital budget decisions in confonnity with its comprehensive plon."
This does not allow a city to enter into a developme,nt 4greeme,nt for a massive increase
in density, if inconsiste,nt with the county-wide plsnning policies in the city's
comprehe,nsive plan
Take this exarrple of adevelopment agrcement provisionthat is incorporated in one
ciff's code. We all know that in most cities and cormties, use variances are prohibited.
The city adopted a code provision allowing property ownem to dwiate from the uses
allowed in aparticular zone with a development agreement -- as long as there is a vote of
a zupermajority of the council. There are no objective standards for the council to
consider, and very likeln there will be no findings and conclusions to support execution
of such an agreement. This code provision would allow variances of any tlpe to follow
this process, avoiding the chapter on variances in the code.
When there are no objective standards to guide ttre use of discretion, the code (and
development agreement) could be challenged (void for vagueness).r5 Even if this
developme,nt agreement is not appealed, aproblem could arise whe,n the next developer
proposes to dwiate from the uses allowed in a zone with a developme,nt agree,ment. With
this subsequent request for a'tse variance" development agreement, there may only be a
majority, rather than a supemrajority of the cormcil to zupport the deviation. If the
decision is appealed, can the city defend a refusal to enter into a dwelopment agreemexlt
for what is basically a city-created use variance, whe,n there are no variance criteria, but
similar variances have been granted by a supermajority in the past?
If development agreements can be used to vary ftom all of the city's development
standards, do we need a zoning code? Clearly, if a developer can deviate from a city's
development regulations through a *beauty contest" involviag a supennajority vote ofthe
council, no one would be motivated to demonstrate satisfaction with the much more
difficult variance ctiteria in the code. While there are no Washington cases on this issue,
the city attomey should question whether this type of a development agreemelrt meets the
Washington courts' test for invalid concomitant agreements (where the city is'tSing the
concomitant agreement for bargaining and sale to the highest bidder or solely for the
benefit of private speculators"l6).
Here are some other examples of development agreeme, rts to consider:
6
l. A pre-annexation agreeme,nt betv,reen the crty and an owner ofproperty in
a city's urban growlh areq in wtrich the crty agrees to rezone the property to aparticular
zone after annexation. There is no te,rm (duration) in the aSrc€,ment The city rezones the
property consisteirt with the agreemelrt. Five years later, the city uses the teznt eprocess
to rezone it to anotlrer zoning classification tht is inconsistent with the agreement The
developer zues, claiming that the city could only rezone the property if both parties
agreed to amend the pre-annoration agree,ment.
2. An agreement between the ctty and a property ownetr, which provides a
'teezing" ofthe city's developmelrt regulations for a specific period of time, zubjectto
additional ortensions of time, because the property owner has constnrcted a storrr water
drainage facilrty to accommodate the stormwater on its property on the date the
agre€mexrt was executed. No development application was ever submitted for any
dwelopnent and the agree,me,nt did not include a deadline for the submission of any
application
3. A development agreement is executed betrreen Bob Smith andthe city,
wtrich establishes the dwelopment regulations that will govem the development of
specific property, and the agreement is recorded against this property. The agreement
provides ttrat if Bob Smith purchases any other Foperty &ring the term of the
agreement then the development agreementwill automatically extend and govem
developme,nt ofthis new property.
4. An agree,rnent befirreen a developer and a city which establishes the sewer
connection (or GFC) as well as sewer service fees that must be paid for property in the
Happy Days suMivision, for twenty yea$. In other words, wtrile the crty council has
established the sewer oonnection fee (or GFC) and sewer service fees for all other ownerc
of property by ordinance, which is amended from time to time, these fees are "set" inthe
dwelopment agreement for the llappy Days zubdivision for the duration of the
agre€ment.
5. A purchase and sale agree,ment involving the city's sale of property to a
private individual, wtrich included the condition that after closirg, the city would perform
SEPA and rezone the property to a particul t zrlrre.
6. An agreement betwee,n aproperty owner and a city that has no
development regulations allowing for conditional use p€rmits, but the agreeone,nt
approves a conditional use permit for a particular use and developmenq *in p€rpetuity."
7. Dweloper Tim Morgan asks the city to enter into a pre-annoration
agreement in which the parties agree that the property will be annexed to the city. The
agreement also establishes the zoring that the city will impose on the property. No
hearing has been held on any annexation petition or pre-aurexnfisn zoning.
G. Are Dervelopment Agreements the same as Concomitant Agreemenb? At
least as early as 1967, concomitanl agreemerrts were in use in WashingtoD, usually
7
associated with rezone actions.lT These concomitant agreernents were not stahrtorily
authorized (although some municipalities adopted concomitant agreeinent procedures in
the code), and the process for concomitant agreements varied from juisdiction to
jurisdiction.
The Washington courts upheld concomitant agreernents associated with rezoning, unless:
it can be shown tlrat there was no valid reason for a change and that they
are clearly arbitary and umeasonablq and have no zubsuntial relation to
the public healtb safety, morals and general welfare, or iftre city is using
the concomitant agreement forbargaining and sale to the highest bidder or
solely for the beirefit of private speculators.ls
Throueh the adoption of RCW 36.708.170(2), the kgislature acknowledgedthe validity
of a contast temrte, concomitant agreemen! annexation agreemeNil or other 4greemelil in
existence on July 23,1995, or adopted under separat€ authority, that includes some or all
of the developrment standrds in RCW 36.708.170(t).le This language doesn't resolve
the question whether all such agreements executed after tlrat date are required to follow
the procednres in RCW 36.70B.170 through .210. However, gven that the list of*development standards' in RCW 36.708.170(3) are the same t1rye of standards included
in concomitant agreements, the conservative approach would be to uniformly follow the
procedures for development agree,rnents in stnte law. Ther€ is no reason to risk a
subsequent challenge to the validity of a concomitant agee,rnent based on the city's
argrrment that that its local ordinance procedure for concomitant agreements zupersedes
the development agreement statutes.
E Are Dwelopment Agreements Lrlgislatfue or Quari-.Iudicial? A sample of the
purposes and development standards that may be included in development agreements
are identifid in RCW 36.708.170. Agreeinents incorporating these development
standads can arise in legislative or qtrasi-judicial contexts.
It is important to separate legislative development agreements (associated with legislative
actions) from those executed in conjunction with quasi-judicial project permit
applications. This will ensure that the proper appeat route will be followed the
rwiewing courUadministrative agercy will utilize the proper standad of review, and the
city's liability wifl be limitcd to the extent allowed by law.
For example if a property owner seeks a comprehensive plan ame,lrdment of the land use
designation of his/herproperty, this involves the use of legislative discretion If a
dwelopment agreement has been proposed for the purpose of allowing the city council to
find that there is sufficient infrastnrctune to support a more intense land use designation in
the compreheirsive plao (for a subsequent rezone), the agreement may include the
prcperty owner's prcposal to build transportation facilities that are not otherwise
addressed inthe comprehensive plan. This is a discretionary development 4greernent and
is legislative, just like the associated comprehensive plan amendmelrt. An appeal of this
comprehensive plan amendment and development agrcement would be filed with the
8
Grcudh Management Hearings Board (if this occurred in a city/county plarrning under
GMA).29 The city would not have any liability for denying either the comprehensive
plan amendment orthe development agreement.
An example of a quasi-judicial development agreement would be a developer's request
for a rezone consistent with the most intense ?nr:e in a range 6f 2sning classifications
allowed under the comprehensive plan. The staffrccornmendation for approval of the
rezone may include a development agreement that requires the property owner to install a
25 foot wide vegetative bufrer betwee,n the poperty and the neighboring uses; Because
the underlying application is quasi-judicial (a site-specific rezone), the development
agree,ment would also be quasi-judicial and appealed in the siltre manner as the rezone
(chapter 36.70C RCW or LLIPA).2I In this situatio& the property owner could file an
appeal with a dauage claim under chaper &.40 RCW and/or 42 U.S.C. Section 1983.
I. What are the problems associsted with execution of development agrcemenb
that are inconsistentwith the applicable dwelopment regulations? The city limits
public participation when it executes development agreements that are not consistent with
existing development regulations. In addition, the crty unnecessarily exposes itself to
liability for damages associated with project permit applicationVdevelopment agreements
(nnder chapter il.40 RCW and 42 U.S.C. Section I 983).
The Growth Management Act establishes aprocess forthe adoption of development
regulations, which provides notice to the public at many stages. Many of these steps are
omitted if new development regulatioru (inconsistent with existing developmrent
regulations) are adopted in a development agreement. Here is a summary of the process:
The ordinance establishing the development regulations is drafted;
The city SEPA Reqponsible Official perfomrs SEPA on the draft
ordinance;
The city sends the draft ordinance to the Washington State Departneirt of
Commerce (RCW 36.70A.106<1)), notifing it ofthe city's intentto adop
the ordinance, at least 60 days prior to final adoption;
The cityplnnning commissionprovides public notice (which is usually
broado than the public notice provided for project permit applications)
and holds apublic hearing on the draft ordinance. The plrnning
commission prepares a recommendation to the city council on tlre draft
ordinance;
The city council considers the draft ordinance, the planning commission's
recommendation (and perlmps a SEPA appeal) in a regular meeting;
If the city council decides to make changes to the draft ordinance, it
follows RCW 36.70A035(2Xa} ufricb depending onthe change(s), may
rcquire additional public notice and anotlrer ptrblic hearing on the
ordinance;
The city council may also decide to hold more public hearings even if no
changes are made to the plpning commission's recommendation;
I
9
The city council adopts the ordinance with the new development
regulations;
The city seirds a copy of the adopted ordinance to the Departrrent of
Commerce (RCW 36.70A. I 06(3));
The city publishes the adopted ordinance in the city's offlroial oowspapsr;
The adopted ordinance may be appealed to the Growth lvlanagome,lrt
Hearings Board (RCW 36.70A.280);
If appealed, there is a hearing and the GMIIB issues a decision; and
A judicial appeal of the decision may be filed.
Contast the above procedure with the procedtre for the adoption of development
regulations in adwelopme,nt agreementwith an underlying permit application (like a
master use permit or PUD):
The development agreement with the development regulations is reviewed
by the City statr;
The City SEPA Responsible Official performs SEPA on the draft
ordinance;
Public notice is provided for a project p€rmit application and a public
hearing is held on the development agl€ement and underlying project
permit ryplicatiorq before the hearing etraminer/crty council;
The city council considers the development agreement (and any SEPA
@eal) and adopts the agreeme,nt by resolution/ordinance;
A judicial appeal may be filed" The courts consider such developnent
agreements to be quasi-judicial, so the appeat is handled by the court
under chapter 36.70C RCW or LUPA.
As you can see from the above, the adoption of development regulations in a
development agreement associated with a project pennit application significantly limits
public participation. Because the city doesn't consider the development agree,nre,nt to
actually anrend existing development regulations or adopt new ones, the crty doesnit
consider RCW 36.70A.130(lXd), which provides that: "any amendme,nt of or revision to
developmentregulations shall be consistcilt with and implementthe comprehensive
plan." If the city adopts new development regulations that are inconsistent with existing
developme,nt regulations, there is likely no rwiew to determine consistency with the
comprehensive plan as required by RCW 36.70A.120.
Because ttre first procedure doscribed above (adoption of developne,nt regulations
according to GMA and other applicable law) is legislative, the couts give deference to
the city's decision and the city is usually imnrune from liability for legislative actions.
(Or, invalidity under RCW 82.02.020 will prwent the courts fr,om analyzing any
constitutional challenge.z) However, the second procedure is quasi-judicial, subject to
the judicial standards of review in LUPA (the Land Use Petition Acf specificatly RCW
36.70C.130), and could subject the crty to a damage claim under chapter 64.40 RCW or
42 U.S.C. Section 1983. So, if the city followed the process for adoption of developmeirt
regulatiors as required by law, it would increase publio participatioq reduce the
l0
possibility that the city would be involved in a lengthy, expensive appeal, and
zubstmtialty reduce sl stiminate the city's liability.z3
J. Should we use the same templrte for all Dwelopment Agreemenh? No. The
standard conhact provisions may vary, de,peoding on whether the development agreeno€ril
is zubject to RCW 82.02.020 or is dissretionary. For orample, should the city add certain
clarses that prevent the developer from later suing the city forutanr4ges under chapter
&.40 RCW or 42 U.S.C. Sestion 1983, based on a disctetionary development
agreement?2a
K Do other jurisdictions have laws to negulate Development Agreements?
lvlany states have adopted enabling legislation authorizing development agreements to
ensure that the municipality's police power is not *bargained away''and the legislative
atrthority is not surrendered in corfupction with land use approvals. Califonria's
Developmelrt Agreement statutes inqlude a number of provisions that would
temendously improve the development agreement procedures in Washington. In
Californiq there are state-wide rmifonn public noticing requirements of the public
hearing relating to the development agreement.2s Adequate public notice is importan!
especially in those jurisdictions interpreting RCW 36.708.170 to allow use of
development agreements to waive code requirements or allow development that is
inconsistent with GMA-adopted code provisions.
California also prohibits developmeot agr€ements in c€rtain z)nes, such as flood contol
znnesx (Should \Mashington prohibit development agxe€ments that allow developers to
vest under current storrrwater regulations for a period of years beyond the normal
e:rpiration of the permit?) Califomia imposes durational limits on development
agrcements associated with newly annexed arcaJ7 - apparently as a result of court
decisions in which counties entered into development agreements with developers
agreeing not to impos" impact fees, whioh prevented the cities that zubsequently anner(ed
the property from raising necessary fimds.
In addition, California requires that the municipality periodically review the development
agreement. Theproperty owner/developermust demonstrate good faith compliance with
the terrrs of the agreement or the municipality rnay ternoinate or modi$ the agreement.2s
L. Do we need a Development Agreement for e phased suHiyision m can the
phasing schedule be included tn the preliminaly plat epproval? There are a number
of good reasons to have a development agreement in place for phased subdivisions. First,
a development agreement is nedd to extend the vested rights of any preliminary plat
beyondthe deadlines for expiration in RCW 58.17.140. The hearing examiner doesn't
have the authority to extend the deadline in the preliminary plat decision.2e
The city council can't issue final plat for only a portion of a development described in a
preliminary plat approval. Under RCW 58.17.170(1), the city council can only iszue
final pl* approval if the "suMivision proposed for final plat approval conforms to all
tenns of the preliminarv plat approval- and that said subdivisionmeets the requirements
il
ofthis chapter, other applicable laws, . . ." @mphasis added.) So, unless the hearing
examiner has included a phasing schedule in the preliminary plat approval, a
development agreement is needed for issuance of final plu for each phase.
Thir4 the development agreemnent is recorded against the property, and may be enforced
by the city against any subsequent purchasers (if conectly unitten) of the propsrty in the
prelimina y plat. Consider the situation we witressed during the recession - nuny
developers went belly-up, and were not able to complete their projects. The preliminary
plat runs with the property in the sense that a zubsequent purchaser has the ability to
constnrct the plat as approved. However, a problem arises when the preliminary plat is
partially constnrcted and the bank now owns the property. A developer nray not have
posted bonds at this point to eruure constnrction of the plat improvements. The bank has
no interest in complaing the roads or other improve,ments. If there is a dwelop4pe,lrt
agleement binding the owner to complete the improvements by a date certain, the crty
can ensure that the improveme,nts are constructed as needed.
Many cities require that the developer submit a bond to ensure completion ofthe
improvements in order for final plat approval to iszue. This procedure may not always
produce the desired result. Many cities allow the use of a bond form submitted by the
developer, which isn't anything morc than a promise - rmenforceable when the developer
is gone and the bank owns the property. Some cities use a bond form that allows the
bond to expirebefore the improvements have been constntc"te4 inspected and accepted
by the city for ownership and maintenance
M. Recommendations.il
l. Don't enter into a dwelopment agreement with terms that arc
inconsistentwlth the cityts development rcgulations or comorehensive ohn.
2. Adopt a chapter in the code addrcssing development agrcements.
This chapter should not only reflect the procedure in state law @CW 36.70B.l70through
,210), but also state that development agreements caonot be inconsistent with the city's
development regulations or comp,rehensive plan.
3. Update the city's dwelopment regulations so that they are consistent
with the city's comprchenoive plen If the city's developme,lrt regulations ae up to
date, ttrere is no reason for a developer to propose a development agreement,
that it is needed becarse the city's regulations are so 'butdated."
4. I)on't use a development agrcement to duplicate a clear state law
procoss, just to provide the dweloper with predictability beceuse tte agrcement
confuses the procedures for appcel. For exarnple, state law describes the process for
anne:ration in code cities (chapter 35A.14 RCW) and the process for adoption ofpre-
aonexation zoning (RCW 354.14.330). The city makes decisions relating to these
procedures after public hearings. Any development qgreement entered into by the crty
and aproperty owner needs to be clear that the clty has not agreed to the annexation or
12
the pre-annexation zoning by merely executing the agreement. There is no need to e,lrter
into such agreements simply to 'bail doum the process." By adding an umecessary
development agrce,me,nt to the mix, the city also exposes itself to uillecessary liability in
an appeal of the agreement. The public's ability to appeal the process is also made
tunnecessarily complicated
5. Subdivision laws control how lend cen be divided, while zoning hws
addness how the land can be developed. The fact that the suMivision codo doesn't
include any regulations relating to the development of the property doesn't mean that the
city can adopt a development agreemont with includes dwelopment regulations that are
inconsistelrt with the zoning code. Remember that in order for a preliminary or short plat
to be approved there must be a finding that the proposed short plat or preliminary plat is
in conformity with any applicable zoning ordinance or land trse controls.3l Also, don't
adopt a development agreement in order to deviate from the procedures in the subdivision
code fteep h mind that the suMivision code is defined as a "development regulatiod'
under RCW 3 6.70A.030(7)).
6. Ensure that the development agreement binds the derveloper to linish
the project and instell infrastructure on a predictable timeframe. The development
agree,ment shotrld describe the rights and remedies of the local government if the
developer defaults on the project. The local government should be able to rely upon its
administative code enforcemeot process (ufuich imposes penalties for every day of
noncompliance) in addition to any jtrdicial emforcementprocedure. To ensure that there
is adeqrrate infrastnrcture when it is needed by the development, tbe agreement should
pnovide that certain approved infrastnrcture exist before building permits issue.
6. Ileve a template for dcvelopment agrcements or et the very least, use
e checklist to ensure that all of the elements of a contract are present
I Rcw36.20B.l7G.l80.2 Rcw B2.o2.ozo.3 Cobbv.SnohomishCounty,64Wash.App.45l,45?45E,E29P.2|169(1991);TiimenDarclopment
Co. v. KingCounty, 124 Wash2d 261,270,877 P.zd 187 (1994).1 Cobbv. Snohomish Cotuty,64 Wash. App. at 45E.5 RCW 82.02.02W) urd (3) require that the payment be expended within five years or be refunded,
unless the delay is attributable to the developer.
6 Rcw 36-708.170(l) (errphasis added).
Phillips v. King Coanty, I 36 Wash.2d 8/i6, 968 P.zd, 87 I (1998).
kiclrson & Associotes, Inc. v. Mclerran, 123 Wash.2d 864, E68, E72P2d,1090 (1994).
FDIC v URIBE, Inc., l7l Wash. App. 683, 688, 287 P.3d. 694 Q0l2).
King County v. Tcpayers of KW County, 133 Wash.2d 5M, 598, 949 P.zd 126/u- (1997).
King County, 133 Wash.2d at 597.
These "development standards" are define4 for the purposes of the section (RCW 36.708.170) to
include, but not be limited to: dcnsities, permitted rses, building sizes, impact fees, mitigation measures,
9"rig, standards, phasing affordable horsing etp. RCW 36.708.nAQ).
13 Rcw 36.708.190, .200. ;
11 RCW 36.708.190.
7
8
9
l0
ll
12
13
rs lnAndersonv. Issaguah, T0 Wash. AW.64,76, 851 P2d744 (1993), the court invalidated the city's
destgt regulations because they did not *give effective or meaningful guidance to applicants, to desigr
prof,essionals or to the public offrcials of Issaquah who are responsible for cnforcing the code." The
regulations reguired that a given building project should "bear a good relationship with the Issaquatr Valley
and surounding mountains; its'windowg doorr, eaves and parapets should be of appropriate proportions;
its colors should be harmonious with the building design; monotony should be avoided; and the project
should be inrcresting." Id,lO Wash. App. at76. The Anderson court held that it was 'tmreasonable, and a
dcprivation ofdue process, to expoct or allow a desigr review board . . . to create standards onanad hoc
basis, drning the desip rcview process." Id at83
16 ltlyltr e v. Spokane, 7 0 W n.2d 20?, 216, 4.n P.2d, 7 90 (1967).
r7 See, Itly lve v. Spokane, 7 O Wn.2d. 207, 422 P.2d 7n 0967).tt 1d.,70 Wn.2d at2l6;Redmondv. Kerzner,l0lVash. App.332,517P.2d625(1973);seeako,
dissenting opinion n Chrokrck v. Snohomish Courty,78 Wn.2d 858, 887, 480 P2d 489 (lyl l).
re Rcw 36.208.lz0(2).
20 RCW 36.70A.280.2r Chapter 36.7rc, RCW, the Land Use Petition Act.2 Citizera' Alliancefor Property Rights v. ,Sims,-145 Wash. App. 649,187 P.3d 786 (2008).B See, Citbenst Alliancefor Property Nghls v. Sims, 145 Wash. App. 649,187 P.3d 786 (2008). In
Citizera' Alliotce, prryrty owners file a lawsuit qgainst the Corurty for adoption of its criticd arcas
regulations, alleging that it violated substantive due process, other provisions of the Washinglon
constitution and RCW 82-02.020. The court found that the regulations violated RCW 82.02.02 uid because
it resolved the issue on a non-constitutional basis, it did not need to consider the constitutional claims.
21 See, Hunbert/Birch CreekConsf. v. Walla WallaCounty, 145 Wash. App. 185, ly2,185 P.3d 660
(2008). ln Hwnbert/Birch,frrc developer submitted a letter to the hearing examincr stating that it agreed to
thc imposition of certain conditions suggested by DOT on the development. After the hearing examiner
imposed the same conditions on the development the developer appealed" claiming that it was deprived of
property or otlrenpise not accorded due process when thcy ageed to the improvements. The Court of
Appeals held trat the invited error doc{rine prohibits a party from setting up an error in the trial court then
complaining of it on appeal. It found the inviEd error doctrine to be constitutional because due process is
not denied when the denial results from the actor's own act urd the local government is not required to
protect fte actor from himself. Here, RCW 82.02.020 did not ap,ply because the agreement was between
the state DOT and tre developer, not the county (and RCW 82.02.020 does not apply to the state.25 Cal. Gov. Code Section 65867,65091,65090.% &1. Gov. Code Section 65865.5.n Cal. Gov. Code Section 65865.3.
2t Cal. Gov. Code Soction 65865.1.D Unlcss thc clty has adopted a code provision allowing such extcnsions under RCW 58.17. 140.30 See, Zombie Subdivtsiors in the llnited Staes and Ghost Developmena ln Europe: Lessons for Locat
Gwernments,4 Wash. J. Envtl.L.& Pol'y 314, January,2015.3r RCW58.17.195.
74
DRAFT - December 4,2014
ORDINANCE NO. 14
AN ORDINANCE OF THE CITY COLINCIL OF THE CITY OF
RELATING TO COMPREHENSIVE PLANNING UNDER THE GROWTH
MANAGEMENT ACT, ADOPTING CONCURRENCY REGULATIONS FOR
THE REVIEW OF LEGISLATIVE AND QUASI-JUDICIAL APPLICATIONS,
AS MANDATED BY THE GMA FOR TRANSPORTATION FACILITIES AND
AS RECOMMENDED BY THE GMA FOR WATER AND SEWER FACILITIES
,REPEALING CHAPTER 16.60 AND ADOPTING A NEW
CHAPTER 16.60 TO THE
AN EFFECTIVE DATE.
MLINICIPAL CODE AND ESTABLISHING
WHEREAS, the Growth Management Act ("GMA," chapter 36.70A RCW) requires that
cities planning under GMA "adopt and enforce ordinances which prohibit development approval
if the development causes the level of service on a locally owned transportation facility to
decline below the standards adopted in the transportation element of the comprehensive plan,
unless transportation improvements or strategies to accommodate the impacts of development
are made concurrent with the development (RCW 36.70A.070(6)(b));" and
WHEREAS, the City has adopted concurrency regulations in chapter 16.60 of the
Municipal Code which need to be updated; and
WHEREAS the SEPA Responsible Official has determined that this Ordinance is
categorically exempt from SEPA as affecting only procedural and no substantive standards,
pursuant to WAC 197-11-800(19); and
WHEREAS, the Planning Commission held a public hearing on this Ordinance on
and made a recommendation of to the City Council; and
I
WHEREAS on 2015, the City Council considered this Ordinance,
together with the Planning Commission's recommendation, during a regular Council meeting;
Now, Therefore,
THE CITY COUNCIL OF THE CITY OF WASHINGTON, ORDAINS
AS FOLLOWS:
Section l. Chapter 16.60 of the _ Municipal Code is hereby repealed
Section 2. A new Chapter 16.60 is hereby added to the Municipal Code, which
shall read as follows
CHAPTER 16.60
CONCURRENCY MANAGEMENT
Sections:
16.60.001
16.60.002
16.60.003
16.60.004
16.60.005
16.60.006
16.60.007
16.60.008
16.60.010
16.60.01I
16.60.0r2
16.60.013
16.60.014
16.60.015
16.60.016
i6.60.017
i 6.60.01 8
16.60.019
16.60.020
16.60.021
16.60.022
16.60.023
16.60.024
Purpose.
Authority.
Exempt development.
Capacity evaluation required for a change of use.
Capacity evaluations required for certain rezones or comprehensive plan
amendments.
All capacity determinations exempt from project permit processing.
Level of Service standards.
Effect of LOS standards.
Capacity evaluations required prior to issuance of CRC.
Water, transportation and sewer - Application for capacity evaluation
Submission and acceptance of an application for a CRC.
Method of capacity evaluation.
Purpose of capacity reservation certificate.
Procedure for capacity reservation certifi cates.
Use of reserved capacity.
Transfer of reserved capacity.
Denial letter.
Notice of concurrency determination.
Expiration and extensions of time.
Appeals.
Purpose and procedure for administration.
Capacity classifi cations.
Annual reporting and monitoring.
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16.60.02s
16.60.026
Road LOS monitoring and modeling.
Traffic impact analysis standardized format.
16.60.001 Purpose. The purpose of this Chapter is to implement the concurrency provisions
of the transportation and utilities elements of the City's comprehensive plan, the water and sewer
comprehensive plans, all in accordance with RCW 36.70A.070(6Xb), consistent with WAC 365-
195-510 and 365-195-835. All applications that are not exempt (as defined herein) shall be
processed under and shall comply with this Chapter, which shall be cited as the City's
"concurrency management ordinance."
16.60.002 Authority. The Director of Public Works or his/her designee, shall be
responsible for implementing and enforcing this concurrency management ordinance.
16.60.003 Exempt development.
A. No development activity (as defined in Section MC) shall be exempt from
the requirements of this chapter, unless the permit is listed below. The following types of
permits are not subject to the capacity reservation certificate (CRC) process because they do not
create additional long-term impacts on transportation facilities or sewer capacity in the City's
waste water treatment plant, or water capacity in the City's water system:
l.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
n.
18.
19.
20.
Administrative interpretations ;
Sign permit;
Street vacations;
Demolition permit;
Street use permit;
Interior alterations of a structure with no change in use;
Excavation/clearing permit;
Hydrant use permit;
Right-of-way permit;
Single-family remodeling with no change of use;
Plumbing permit;
Electrical permit;
Mechanical permit;
Excavation permit;
Sewer connection permit;
Driveway or street access permit;
Grading permit;
Tenant improvement permit;
Fire code permit;
Design review approval.
Notwithstanding the above, if any of the above permit applications will generate any new p.m.
peak hour trips, require additional sewer capacity, or increase water consumption, such
application shall not be exempt from the requirements of this Chapter.
J
B. Transportation. This Chapter shall apply to all applications for development or
redevelopment if the proposal or use will generate any new p.m. peak-hour trips. Every
application for development shall be accompanied by a concurrency application. Developments
or redevelopments, excluding an individual single-family residence, that will generate one or
more new projected vehicle trips that will pass through an intersection or roadway section
identihed with a level of service below the acceptable level noted in the transportation element in
the City's comprehensive plan, or that will generate 15 or more new p.m. peak hour trips shall
also be required to have the City prepare a traffic report as defined in POMC Section
C. Water. This Chapter shall apply to all applications for development inside the
City limits or outside City limit utility extension agreements (under chapter MC) for
development or redevelopment if the proposal or use requires water from the City's water
system. In addition, this Chapter shall apply to existing developments to the extent that the
property owner requires water for a use not disclosed on a previously submitted water service
application under Section or a previously submitted application for a capacity
reservation certifi cate.
D. Sewer. This Chapter shall apply to all applications for development inside the
City limits or outside City limit utility extension agreements under chapter _._ MC) for
development or redevelopment if the proposal or use requires sewer from the City's sewer
system. In addition, this Chapter shall apply to existing developments to the extent that the
property owner requires sewer for a use not disclosed on a previously approved request for sewer
service or a previously approved application for a capacity reservation certificate.
16.60.004 Capacity evaluation required for a change in use. Any non-exempt
development activity shall require a capacity evaluation in accordance with this Chapter.
A. Increased Impact on Road Facilities, and/or the City's Water/Sewer System. If a
change in use will have a greater impact on road facilities and/or the City's water/sewer system
than the previous use, as determined by the Director, based on review of information submitted
by the applicant and such supplemental information as available, a CRC shall be required for the
net increase only. Provided that: the applicant shall provide reasonably sufficient evidence that
the previous use has been actively maintained on the site during the five-year period prior to the
date of application for the capacity evaluation.
B. Decreased Impact on Road Facilities and/or the City's Water/Sewer System. If a
change in use will have an equal or lesser impact on road facilities and/or the City's water/sewer
system than the previous use as determined by the Director, based on review of information
submitted by the applicant and supplemental information as available, a CRC will not be
required.
C. No Capacity Credit. If no use existed on the site for the five-year period prior to
the date of application, no capacity credit shall be issued pursuant to this Section.
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D. Demolition or Termination of Use. In the case of a demolition or termination of
an existing use or structure, the capacity evaluation for future redevelopment shall be based upon
the net increase of the impact on road facilities or the City's water or sewer system for the new
or proposed land use, as compared to the land use existing prior to demolition. Provided that:
such credit is utilized through a CRC within five years of the date of the issuance of the
demolition permit.
16.60.005. Capacity evaluations required for certain rezones and comprehensive plan
amendments. A capacity evaluation shall be required as part of any application for a
comprehensive plan amendment or zoning map amendment (rezone) which, if approved, would
increase the intensity or density of permitted development. As part of that capacity evaluation,
the Director shall determine whether capacity is available to serve both the extent and density of
development which would result from the zoning/comprehensive plan amendment. The capacity
evaluation shall be submitted as part of the staff report and shall be considered by the City in
determining the appropriateness of the comprehensive plan or zoning amendment.
16.60.006 All capacity determinations exempt from project permit processing. The
processing of applications pursuant to the authority in this Chapter shall be exempt from project
permit processing procedures as described in Chapter _._ of the Zoning Code, except that the
appeal procedures of Chapter shall apply as indicated in this Chapter. The City's
processing of capacity determinations and resolving capacity disputes involves a different review
procedure due to the necessity to perform continual monitoring of facility and service needs, to
ensure continual funding of facility improvements, and to develop annual updates to the
transportation and utilities elements of the comprehensive plan.
16.60.007 Level of Service Standards.
A. Generally. Level of Service (LOS) is the established minimum capacity of public
facilities or services that must be provided per unit of demand or other appropriate measure of
need, as mandated by chapter 36.70A RCW. LOS standards shall be used to determine if public
facilities or services are adequate to support a development's impact. The concept of
concurrency is based on the maintenance of specified levels of service through capacity
monitoring, allocation and reservation procedures. Concurrency describes the situation in which
water, sewer and/or road facilities are available when the impacts of development occur. For
road facilities, this time period is statutorily established as within six years from the time of
development. (See, RCW 36.70A.070(6Xb) and WAC 365-195-210.)
I . Roads. The City has designated levels of service for road facilities in the
transportation element of the City's comprehensive plan:
a. to conform to RCW 47.80.030 for transportation facilities subject
to regional transportation plans;
b. to reflect realistic expectations consistent with the achievement of
growth aims;
5
c.for road facilities according to WAC 365-195-325; and
d. to prohibit development if concurrency for road facilities is not
achieved (RCW 36.70A.070), and if sufficient public and/or private funding cannot be found,
land use assumptions in the City's comprehensive plan will be reassessed to ensure that level of
service standards will be met, or level of service standards will be adjusted.
2. Water. The City has a permitted withdrawal volume of water issued by
the Department of Ecology. "Level of Service" as it relates to water is defined in the water
element of the City's comprehensive plan as the ability to provide potable water to the consumer
for use and fire protection. The ability to provide water supply is limited by the water permit
from the Department of Ecology.
3. Sewer. The City is required to obtain a permit from the Department of
Ecology in order to discharge effluent into the waters of the State. This permit is limited by
levels and volume. "Level of Service" as it relates to sewer is defined in the City's sewer
comprehensive plan as the ability to provide sanitary sewer services to the consumer for use,
treatment at the City's wastewater treatment plant and discharge into Puget Sound. The City's
ability to provide such service is limited by the physical capacity of the City's wastewater
treatment plant as well as the NPDES permit issued by the Department of Ecology.
16.60.008 Effect of LOS standards.
A. Roads. The Director shall use the LOS standards set forth in the transportation
element of the City's comprehensive plan to make concurrency evaluations as part of the review
of any application for a transportation concurrency reservation certificate (CRC) issued pursuant
to this chapter.
B. Water. The Director shall use the existing water rights as permitted by the
Department of Ecology and as identified in the utilities element of the City's comprehensive plan
to make concurrency evaluations as part of the review of any application for a water CRC issued
pursuant to this chapter.
C. Sewer. The Director shall use the limits and levels established in the City's
NPDES permit from the Department of Ecology, and evaluate the remaining capacity in the
City's wastewater treatment plan as part of the review of any application for a sewer CRC issued
pursuant to this chapter.
16.60.009 Capacity evaluations required prior to issuance of CRC.
A. A capacity evaluation for transportation, water or sewer shall be required for any
of the nonexempt activities identified in Section of this chapter.
B. The Director shall utilize the requirements in Sections through
to conduct a capacity evaluation prior to issuance of a CRC. In addition to the
requirements set forth in these sections, the Director may also utilize state law or the Washington
6
Administrative Code, or such other rules regarding concurrency, which may be established from
time to time by administrative rule. In cases where LOS standards do not apply, the Director
shall have the authority to utilize other factors in preparing capacity evaluations to include, but
not be limited to, independent LOS analysis.
C. A capacity reservation certificate (CRC) will not be issued except after a capacity
evaluation performed pursuant to this Chapter, indicating that capacity is available in all
applicable road facilities and/or within the City's water or sewer system.
16.60.010 Applicationforcapacityevaluation.
A. An application for a CRC and the application for the underlying development
permit, or other activity, shall be accompanied by the requisite fee, as determined by City
Council resolution. An applicant for the CRC shall submit the following'information to the
Director, on a form provided by the Director, together with the underlying development
application:
1. Date of submittal;
2. Developer's name, address, telephone number and e-mail;
3. Legal description of property as required by the underlying development
permit application, together with an exhibit showing a map of the property;
4. Proposed use(s) by land use category, square feet and number of units;
5. Phasing information by proposed uses, square feet and number of units, if
applicable;
6. Existing use of property;
7. Acreage of property;
8. Proposed site design information, if applicable;
9. The applicant's proposed mitigation (if any) for the impact on the City's
transportation faciliti es ;10. Written consent of the property owner, if different from the developer;'
I 1. Proposed request of capacity by legal description, if applicable;
12. For water capacity evaluations only: Water hydraulic report prepared by a
licensed professional engineer, which shall include the purpose for which water is required;
13. For sewer capacity evaluations only: Sewer hydraulic report prepared by
a licensed professional engineer, which shall include the purpose for which the sewer is required.
14. Stormwater drainage report prepared by a licensed professional engineer.
B. Additional information for transportation capacity evaluations only:
1. A preliminary site plan, which is a plan showing the approximate layout of
proposed structures and other development, type and number of dwelling units, type and
number of nonresidential building areas with gross square footage, the land use codes per
the most recent edition of Trip Generation from the Institute of Transportation Engineers
(ITE) and an analysis of the points of access to existing and proposed roadways;
7
2. The applicant is not required to submit a traffic impact analysis from an
independent traffic engineer. Instead, those applicants with a transportation CRC
application that are required to have the City provide a traffic report in accordance with
16.60.003(8)(1) shall instead pay to the City a deposit equal to the estimated fee for the
City's preparation of a traffic report. The amount of the fee shall be determined by City
resolution and paid at the time the transportation CRC application is submitted. The fee
shall be vary based on the number of new p.m. peak-hour trips produced by the
development. The applicant shall be subject to repayment of fees for any subsequent
revisions to the original traffic report. Fees for revisions may be calculated in proportion
to the original fee depending on the effort involved to revise the traffic report. Even if
the traffic report is based on an estimate of the impact, the applicant will still be bound by
the estimate of the impact, and any upward deviation from the estimated traffic impact
shall required at least one of the following: (a) a finding that the additional concurrency
sought by the developer through a revised application is available to be reserved by the
project; (b) mitigation of the additional impact under SEPA; (c) revocation of the CRC.
16.60.011 Submission and acceptance of a CRC application.
A. Notice of application. Issuance of a notice of application for the
underlying permit application shall be handled by the planning director or designee,
following the process in Section The notice of application required by
Section shall state that an application for a concurency determination has
been received by the City
B. Determination of Completeness. The planning director shall immediately
forward all CRC applications received with development applications to the public
works/engineering staff. Within twenty-eight (28) days after receiving an application for
a CRC, the public works/engineering staff shall mail or personally deliver to the applicant
a determination which states either:
l. That the concurrency application is complete; or
2. That the concurrency application is incomplete and what is
necessary to make the application complete.
C. Additional information. An application for a CRC is complete for
purposes of initial processing when it meets the submission requirements in Section
The determination of completeness shall be made when the application is
sufficiently complete for review, even though additional information may be required or
project modifications may be undertaken subsequently. The Director's determination of
completeness shall not preclude the Director's ability to request additional information or
studies.
8
D. Incomplete applications
1. Whenever the City issues a determination that the CRC is not
complete, the CRC application shall be handled in the same manner as a project permit
application under Section
2. Date of Acceptance of Application. An application for a CRC
shall not be officially accepted or processed until it is complete and the underlying
development application has been determined complete. When an application is
determined complete, the Director shall accept it and note the date of acceptance.
f 6.60.012 Method of capacity evaluation.
A. Generally. In order to determine concurrency for the purposes of issuance
of a transportation, water or sewer CRC, the Director shall make the determination
described in subsections B, C and D of this Section. The Director may deem the
development concurrent with transportation facilities or the City's water or sewer system,
with the condition that the necessary facilities or services shall be available through a
financial commitment in an enforceable development agreement (see, chapter _._ of
this Code). In no event shall the Director determine concurrency for a greater amount of
capacity than is needed for the development proposed in the underlying application.
B. Transportation.
1. Upon submission and acceptance of a complete transportation
CRC application, the Director shall conduct a traff,rc impact analysis and issue a traffic
report for those applications meeting the requirements of Section 16.60.003(BX1).
2. In performing the concuffency evaluation for transportation
facilities, and to prepare the transportation CRC, the Director shall determine, based on
the conclusions of the traffic report, whether a proposed development can be
accommodated within the existing or planned capacity of transportation facilities. This
shall involve the following:
a. A determination of anticipated total capacity at the time the
proposed impacts of development occur or within six years of such time;
b. Calculation of how much of that capacity will be used by
existing developments and other planned developments at the time the impacts of the
proposed development occur;
Calculation of the available capacity for the proposed
development;
d. Calculation of the impact on the capacity of the proposed
development, minus the effects of any mitigation identified by the applicant to be
provided by the applicant at the applicant's cost;
c
9
e Comparison of available capacity with proposed
development impacts.
3. The Director shall determine if the capacity of the City's
transportation facilities, less the capacity which is reserved, can be provided while
meeting the level of service performance standards set forth in the City's comprehensive
plan, and if so, shall provide the applicant with a transportation CRC. The Director's
determination will be based on the application materials provided by the applicant, which
must include the applicant's proposed mitigation for the impact on the City's
transportation facilities.
C. Water
1. In performing the concurrency evaluation for water, and to prepare
the water CRC, the Director shall determine whether a proposed development can be
accommodated within the existing or planned capacity of the City's water system. This
shall involve the following:
a. A determination of anticipated total capacity at the time the
proposed impacts of development occur;
b. Calculation of how much of that capacity will be used by
existing developments and other planned developments at the time the impacts of the
proposed development occur;
c.Calculation of the available capacity for the proposed
development
d. Calculation of the impact on the capacity of the proposed
development, minus the effects of any mitigation provided by the applicant; and
e Comparison of available capacity with proposed
development impacts
2. The Director shall determine if the capacity of the City's water
facility, less the capacity which is reserved, can be provided while remaining within the
City's permitted water rights for withdrawal volume, and if so, shall provide the applicant
with a water CRC.
D. Sewer
l. In performing the concurrency evaluation for sewer, and to prepare
the sewer CRC determination, the Director shall determine whether a proposed
development can be accommodated within the existing or planned capacity of the City's
sewer system. This shall involve the following:
10
a. A determination of the anticipated total capacity at the time
the proposed impacts of development occur;
b. Calculation of how much of that capacity will be used by
existing developments and other planned developments at the time the impacts of the
proposed development occur;
c.Calculation of the available capacity for the proposed
development
d. Calculation of the impact on the available capacity for the
proposed development, minus the effects of any mitigation provided by the applicant; and
e.Comparison of available capacity with proposed
development impacts
2. The Director shall determine if the capacity in the City's
wastewater treatment plant, less the capacity which is reserved, can be provided while
remaining within the City's NPDES permit for discharge volumes and levels, and if so,
shall provide the applicant with a sewer CRC.
E. Lack of Concurrency
l. Transportation. If the director determines that the proposed
development will cause the LOS of a City-owned transportation facility to decline below
the standards adopted in the transportation element of the City's comprehensive plan, and
improvements or strategies to accommodate the impacts of development are not planned
to be made concurrent with development, a transportation CRC and the underlying
development permit, if such an application has been made, shall be denied. Upon denial,
the applicant may perform one of the following:
a.Appeal the findings of the traffic report in accordance with
Section _; or
b. Offer altemative data and/or perform an independent traffic
impact analysis at the applicant's sole expense in support of alternative conclusions. Any
study shall be in accordance with Section or
c. Modify the development proposal to lessen the traffic
impacts and/or identify voluntary transportation improvements as mitigation to be
provided by the applicant at the applicant's cost and re-apply for capacity review. Re-
application shall require repayment of the traffic report preparation fee in accordance
with Section _; or
d. Withdraw the CRC application
ll
2. Water and Sewer. If the Director determines that there is no
capacity available in the City's water system to provide water and/or capacity in the
City's wastewater treatment plant for a proposed project, and improvements or strategies
to accommodate the impacts of development are not planned to be made concurrent with
development, the Director shall deny the water and/or sewer CRC. The City has the
discretion to deny the underlying development application for lack of potable water,
depending on the applicant's ability to provide water for the proposed project from
another source.
16.60.0f 3 Purpose of Capacity Reservation Certificate.
A. A transportation CRC is a determination by the Director that: (l) the
proposed development identified in the CRC application does not cause the level of
service on a City-owned transportation facility to decline below the standards adopted in
the transportation element of the City's comprehensive plan; or (2) that a financial
commitment (embodied in a development agreement) is in place to complete the
necessary improvements or strategies within six (6) years. Upon issuance of a
transportation CRC, the Director will reserve transportation facility capacity for this
application until the expiration of the underlying development permit or as otherwise
provided in Section Although the CRC may identify the number of projected
trips associated with the proposed development, nothing in this Chapter (including the
trip transfer procedures) shall imply that the applicant "o\ ms" or has any ownership
interest in the projected trips.
B. A water CRC is a determination by the Director that: (1) the proposed
development identif,red in the CRC application does not exceed the City's existing water
rights or the limits of any state-issued permit, or (2) that a financial commitment
(embodied in a development agreement is in place to complete the necessary
improvements or strategies within six (6) years. Upon issuance of a water CRC, the
Director will reserve water capacity for the application until the expiration of the
underlying development permit or as otherwise provided in Section
C. A sewer CRC is a determination by the Director that: (l) the proposed
development identified in the CRC application does not exceed the City's existing
NPDES permit limits or the existing capacity in the City's wastewater treatment plant, or
(2) that a financial commitment (embodied in a development agreement) is in place to
complete the necessary improvements or strategies within six (6) years. Upon issuance
of a sewer CRC, the Director will reserve sewer capacity for the application until the
expiration of the underlying development permit.
D. The factors affecting available water or sewer capacity or availability may,
in some instances, lie outside the City's control. The City's adoption of this Chapter
relating to the manner in which the City will make its best attempt to allocate water or
sewer capacity or availability does not create a duty in the City to provide water or sewer
service to the public or any individual, regardless of whether a water or sewer CRC has
issued. Every water availability certificate and water and sewer CRC shall state on its
t2
face that it is not a guarantee that water and/or sewer will be available to serve the
proposed project.
16.60.014 Procedure for capacity reservation certificates. After receipt of a
complete application for a CRC, the Director shall process the application in accordance
with this Chapter and issue the CRC or a denial letter.
16.60.015 Use of reserved capacity. When a CRC and a development permit issues
for a project, the CRC shall continue to reserve the capacity unless the development
permit lapses or expires without issuance of a certificate of occupancy.
16.60.016 Transfer of reserved capacity. Reserved capacity shall not be sold or
transferred to property not included in the legal description provided by the applicant in
the CRC application. The applicant may, as part of a development permit application,
designate the amount of capacity to be allocated to portions of the property, such as lots,
blocks, parcels or tracts included in the application. Capacity may be reassigned or
allocated within the boundaries of the original reservation certificate by application to the
director. At no time may capacity or any certificate be sold or transferred to another
party or entity to real property not described in the original application.
16.60.017 Denial letter. If the Director determines that there is a lack of
concurrency under the above provisions, the Director shall issue a denial letter, which
shall advise the applicant that capacity is not available. If the applicant is not the
property owner, the denial letter shall also be sent to the property owner. At a minimum,
the denial letter shall identify the application and include the following information:
A. For roads:
l. An estimate of the level of the deficiency on the transportation
facilities; and
2. The options available to the applicant such as the applicant's
agreement to construct the necessary facilities at the applicant's cost.
B. For water:
i. The options available to the applicant, such as private water
supplies or other water purveyor services; and
2. The options available to the applicant such as the applicant
agreement to construct the necessary facilities at the applicant's cost.
C. For sewer. The options available to the applicant such as a temporary
septic system (if allowed by law) which the applicant would install and agree to remove
at his/her own cost when sewer capacity became available in a development agreement.
13
D. For all. A statement that the denial letter may be appealed if the appeal is
submitted to the City Engineer within ten (10) days after issuance of the denial letter, and
that the appeal must conform to the requirements in Section 16.60._. Any appeal of
a denial letter must be filed according to this section, prior to issuance of the City's
decision on the underlying development application. If an appeal is filed, processing of
the underlying development application shall be stayed until the f,rnal decision on the
appeal of the denial letter.
16.60.018 Noticeofconcurrencydetermination.
A. Notice of the concurrency determination shall be given to the public
together with, and in the same manner as, that provided for the SEPA threshold
determination for the underlying development permit, unless the project is exempt from
SEPA, in which case notice shall be given in the same manner as a final decision on the
underlying development permit without any accompanying threshold determination. In
the case of an approved CRC, any mitigation identified by the applicant to be provided by
the applicant at the applicant's cost shall be included in the SEPA threshold
determination or underlying permit decision (if categorically exempt from SEPA).
B. If a denial letter is not timely appealed, the underlying permit application
will be processed and in most instances, will result in a denial. If a denial letter is
appealed, any mitigation or conditions included in the appeal decision shall be included
in the SEPA threshold decision or underlying permit decision (if categorically exempt
from SEPA).
16.60.019 Expiration of CRC and extensions of time.
A. Expiration. If a certificate of occupancy has not been requested prior to
the expiration of the underlying permit or termination of the associated development
agreement, the Director shall convert the reserved capacity to available capacity for the
use of other developments. The act of requesting a certificate of occupancy before
expiration of the CRC shall only convert the reserved capacity to used capacity if the
building inspector finds that the project actually conforms with applicable codes. If a
complete underlying project permit application is expired as provided for in Section
_, the Director shall convert any reserved capacity allocated to the underlying project
permit for use by other developments.
B. Extensions for Road Facilities. The City shall assume that the developer
requests an extension of transportation capacity reservation when the developer is
requesting a renewal of the underlying development permit. No unused capacity may be
carried forward beyond the duration of the transportation CRC or any subsequent
extension.
C. Extensions for Water or Sewer. The City shall not extend any water or
sewer CRC. If the developer submits an application for an extension of the underlying
t4
permit, the applicant shall submit a new application for a concurrency determination for
water or sewer under this Chapter.
D. If a CRC has been granted for a rezone or comprehensive plan
amendment, the CRC shall expire when the development agreement for the
comprehensive plan or rezone terminates. If there is no associated development
agreement, the CRC shall expire within five years after the CRC approval anniversary
date.
16.60.020 Appeals. Upon receipt of an appeal of the denial letter, the Director shall
handle the appeal as follows:
A. A meeting shall be scheduled with the applicant to review the denial letter
and the application materials, together with the appeal statement.
B. Within fourteen (14) days after the meeting, the Director shall issue a
written appeal decision, which will list all of the materials considered in making the
decision. The appeal decision shall either affirm or reverse the denial leffer. If the denial
letter is reversed, the Director shall identify the mitigation that the applicant proposes to
provide at the applicant's cost, which will be imposed on the application approval in
order to achieve concurrency.
C. The mitigation identified in the appeal decision shall be incorporated into
the City's SEPA threshold decision on the application.
D. The appeal decision shall state that it may be appealed with any appeal of
the underlying application or activity, pursuant to Section
16.60.021 Concurrencyadministrationandprocedure.
A. "Capacity" refers to the ability or availability of water in the City's water
system. "Capacity" refers to the ability to treat effluent in the City's wastewater
treatment plant to the levels and volume limits in the City's NPDES permit. "Capacity"
also refers to the ability or availability of road facilities to accommodate users, expressed
in an approximate unit of measure, such as LOS for road facilities. "Available capacity"
represents a specific amount of capacity that may be reserved by or committed to future
users of the City's water or sewer system or road facilities.
B. There are two capacity accounts to be utilized by the Director in the
implementation of this Chapter for water, sewer and transportation. These accounts are:
The available capacity account; and
The reserved capacity account.
Capacity is withdrawn from the available capacity account and deposited into a
reserved capacity account when a CRC is issued. Once the proposed development is
1
2
15
constructed and an occupancy certificate is issued, the capacity is considered "used."
Each capacity account of available or reserved capacity will experience withdrawals on a
regular basis. Only the Director may transfer capacity between accounts.
16.60.022 Annual reporting and monitoring.
A. The Director is responsible for completion of annual transportation, water
and sewer capacity availability reports. These reports shall evaluate reserved capacity
and permitted development activity for the previous l2-month period, and determine
existing conditions with regard to available capacity for road, sewer and water facilities.
The evaluations shall report on capacity used for the previous period and capacity
available for the six-year capital facilities and utilities element of the City's
comprehensive plan, six-year transportation plan for road facilities, based on LOS
standards, and the sewer and water comprehensive plans. Forecasts shall be based on the
most recently updated schedule of capital improvements, growth projections, water
rights, annual water withdrawal volumes, limits of the NPDES permit, public road
facility inventories, and revenue projections, and shall, at a minimum, include:
1. A summary of development activity;
2. The status of each capacity account;
3. The six-year transportation plan;
4. Actual capacity of selected street segments and intersections and current
LOS;
5. Recommendations on amendments to CIP and annual budget, to LOS
standards, or other amendments to the transportation element of or to the comprehensive
plan;
6. Existing water rights and annual withdrawal volumes; and
7. Limits in the City's NPDES permit and finding of available capacity in the
City's wastewater treatment plant.
B. The findings of the annual capacity availability report shall be considered
by the Council in preparing the annual update to the capital improvement element, any
proposed amendments to the CIP and six-year TIP, and shall be used in the review of
development permits and capacity evaluations during the next period.
C. Based upon the analysis included in the annual capacity availability
reports, the Director shall recommend to the City Council each year any necessary
amendments to the CIP, TIP, utilities and/or water element of the comprehensive plan,
and comprehensive plan. The Director shall also report on the status of all capacity
accounts when public hearings for comprehensive plan amendments are heard.
16.60.023 Road LOS monitoring and modeling.
A. The City shall monitor level of service standards through an annual update
of the six-year transportation plan which will add data reflecting development permits
issued and trip allocations reserved.
t6
B. A new trip allocation shall be assigned for each traffic analysis zone,
based on the results from the traffic demand model used by the City, to ensure that the
City is achieving the adopted LOS standards described in this Chapter and the
transportation element of the comprehensive pln.
C. Amendments to the trip allocation program that exceed the total aggregate
annual trip allocation per zone for any given year shall require an amendment to the
comprehensive plan. Monitoring and modeling shall be required and must include
anticipated capital improvements, growth projections, and all reserved and available
capacity.
16.60.024 Traffic Impact Analysis standardized format. Attached to Ordinance
No. _ and incorporated herein by this reference is the standardrzed format required for
the developer's independent traffic impact analysis. The impact analysis may be
completed at the time of submittal of the original application or upon denial of a
transportation CRC application.
Section 2. Publication. This Ordinance shall be published by an approved summary
consisting of the title.
Section 3. Severability. If any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional by a 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 4. Effective Date. This Ordinance shall become effective five days after
publication as provided by law.
PASSED by the Council and approved by the Mayor of the City of
of May,2014.
this _s day
CITY OF
t7
Mayor
ATTEST/AUTHENTICATED :
City Clerk
APPROVED AS TO FORM:
Office of the City Attorney
City Attorney
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COIINCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO:
18
DRAFT - 4t26t15
ORDINANCE NO. 14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
WASHINGTON, RELATING TO LAND USE AND ZONING, ADOPTING
PROCEDURES FOR THE EXECUTION OF DEVELOPMENT AGREEMENTS
WITH PROPERTY OWNERS, REQUIRING CONSISTENCY BETWEEN
EXISTING DEVELOPMENT REGULATIONS AND DEVELOPMENT
AGREEMENTS, IDENTIFYING THE ELEMENTS OF AN APPLICATION
FOR A DEVELOPMENT AGREEMENT, DESCRIBING THE PROCEDURE
FOR PROCESSING DEVELOPMENT AGREEMENTS, CLARIFYING THE
EFFECT, FORMAT, REQUIREMENTS FOR PUBLIC HEARING,
RECORDING AND APPEALS; ADOPTING A NEW CHAPTER
-
TO THE
MTINICIPAL CODE AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of _ has no procedures to allow the City to enter into
development agreements with property owners, as described in RCW 36.708.170 through RCW
36.70B.200; and
WHEREAS the SEPA Responsible Official has determined that this Ordinance is
categorically exempt from SEPA as affecting only procedural and no substantive standards,
pursuant to WAC 197-11-800(19); and
WHEREAS, the Planning Commission held a public hearing to consider this Ordinance,
together with public testimony, and forwarded its recommendation to the City Council; and
WHEREAS, the City Council consider this Ordinance during its regular City Council
meeting on ,2014; Now, Therefore,
THE CITY COUNCIL OF THE CITY OF , WASHINGTON, ORDAINS AS
FOLLOWS:
1
Section l. A new Chapter _ is hereby added to the Municipal Code, which
shall read as follows:
Chapter 16.90
DEVELOPMENT AGREEMENTS
Sections:
16.90.010
16.90.020
16.90.030
16.90.040
16.90.050
Intent and Discretionary Nature.
Form of Agreement, Effect and General Provisions.
Application Requirements.
Phasing.
Processing Procedures and Appeals.
16.90.010 Intent and Discretionarv Nature.
The purpose of this chapter is to authorize the use of development agreements,
consistent with RCW 36.708.170 through RCW 36.708.210. The City may, but
under no circumstances is required to, enter into a development agreement with a
person having ownership or control of real property within the City. The
development agreement may address such project elements as those set forth in
RCW 36.708.1708(3). The development agreement shall be consistent with the
applicable development regulations of the City. The consideration provided by
the property owner for the City's decision to enter into the development
agreement may vary, depending on the benefit the development agreement will
provide to the City and/or the public in general.
16.90.020 Form of Agreement, Effect and General Provisions.
A. Form. All development agreements shall be on the standard form
approved in advance by the City Attorney for this purpose.
B. Effect. Development agreements are not project permit applications and
are not subject to the permit processing procedures in Chapter 36.708 RCW and
Title l6 of the POMC. A development agreement shall constitute a binding
contract between the City and the property owner and the subsequent owners of
any later-acquired interests in the property identified in the development
agreement. A development agreement governs the project identified in the
development agreement during the term of the development agreement, or for all
or that part of the build-out period specified in the development agreement, and
may not be subject to an amendment to a zoning ordinance or development
standard adopted after the effective date of the agreement. A permit or approval
issued/granted by the City after execution of a valid development agreement must
be consistent with the development agreement.
2
C. Limitations Any provision of the development agreement which requires
the City to: (l) forego adoption of any development regulations affecting the
property identified in the agreement; (2) allow vesting beyond the applicable
deadlines for a phased development; shall be limited to a period of _ L)
years.l The development agreement shall also contain a proviso that the City
may, without incurring any liability, engage in action that would otherwise be a
breach if the City makes a determination on the record that the action is necessary
to avoid a serious threat to public health and safety, or if the action is required by
federal or state law.
D. Developer's Compliance. The development agreement shall include a
clause stating that the City's duties under the agreement are expressly conditioned
upon the property owner's substantial compliance with each and every term,
condition, provision and/or covenant in the development agreement, all applicable
federal, state and local laws and regulations and the property owner's obligations
as identified in any approval or project permit for the property identified in the
development agreement.
E. No Third Party Rights. Except as otherwise provided in the development
agreement, the development agreement shall create no rights enforceable by any
party who/which is not aparty to the development agreement.
F. Liability. The development agreement shall include clause providing that
any breach of the development agreement by the City shall give rise only to
damages under state contract law and shall not give rise to any liability under
chapter 64.40 RCW, the Fifth and Fourteenth Amendments to the U.S.
Constitution or similar state constitutional provisions.
G. Termination and Modification. Every development agreement shall have
an identified, specific termination date. Upon termination, any further
development of the property shall conform to the development regulations
applicable to the property. The City shall not modify any development agreement
adopted for the purposes described in Section 16.90,040 by extending the
termination date. Any request for a modification shall be consistent with the
I The reason this is blank is so that the City Council can add a number which is their outside limit on the length of
time that the Council will allow for vesting in any development agreement. Most development agreements are for
the purpose ofallowing a large project to be constructed in phases, and the developer usually asks for an extended
vesting period so that the entire project may be constructed under the same code provisions. Keep in mind that the
Washington Legislature recently extended the effective dates for preliminary plat approval (for up to l0 years for
some preliminary plats in RCW 58.17.140) and the vesting after final plat approval (for up to l0 years for some final
plats in RCW 58.17.170). In other words, even without additional vesting provided by a development agreement,
some subdivisions will be constructed under codes that could be twenty years old (vesting extends from the date the
preliminary plat application was determined complete). While the length of the vesting period allowed in an
individual development agreement may vary on the public benefits provided by the subdivision, there should be an
outside limit in the code.
J
City's development regulations applicable to the property at the time of the
request, not the original execution date of the development agreement.
16.90.030 Application Requirements. A complete application for a
development agreement shall consist of the following:
A. Name, address, telephone number and e-mail address (if any) of the
property owner. If the applicant is not the property owner, the applicant must
submit a verified statement from the property owner that the applicant has the
property owner's permission to submit the application. Only the property owner
has authority to sign the development agreement;
B. Address, parcel number and legal description of the property proposed to
be subject to the development agreement;
C. Recent title report confirming that the property identified in the
application is owned by the applicant/property owner;
D. Identification of any application (project permit application,
comprehensive plan amendment application, development regulation amendment
application) that is related to the proposed development agreement;
E. SEPA Checklist;
F. A completed application form and the application fee established by the
City for this purpose; and
G. Any other information requested by the Community Development
Director relevant to the processing of the development agreement.
16.90.040. Phasing.
A. In order to phase a project to extend the vested rights associated with an
underlying project permit application, a development agreement is required. This
ensures the availability of public facilities and services to all of the property in the
identified individual phases, allows tracking of the available capacity of public
facilities and utilities during each phase of construction, and with the extension of
the vested rights associated with the project, provides certainty to the developer in
the subsequent development approval process.
B. The deadlines in the City's code relating to each type of project permit
application must be consulted to establish the baseline vesting period. The City is
not required to extend the vesting period. If the City decides to do so through a
development agreement, it must be in exchange for the property owner's
provision of corresponding benefits to the City in the form of, for example,
contributions to public facilities and amenities over and above what would
4
normally be required. In any event, the City shall not allow vesting to extend
beyond the established _ ( ) year period in Section 16.90.020(C) after
approval of the project permit application.
C. A development agreement for a phased development (such as a
subdivision) shall include (in addition to all of the information in Section
16.90.030), all of the following:
l. identification of the phasing schedule;
2. identification of the number of phases and all lots included in each
phase;
3. identification of the approximate dates for construction of public
streets, public utilities and other improvements in each phase;
4. identification of the approximate dates for commencement of
development of each lot, lot sales and building occupancy;
5. identification of the benefits that the property owner will provide
to the City in exchange for permission to phase the development according to the
proposed schedule;
6. establishment of the deadline for the property owner to submit
development applications, including building permit applications, for each phase;
7. a description of the manner in which each phase is designed such
that all site requirements are satisfied independently of phases yet to be given
final approval and constructed;
8. a description of the manner in which the property owner will
ensure that adequate public facilities are available when the impact of
development occurs. The property owner shall acknowledge in the development
agreement that if the demand for public facilities or services needed to
accommodate a subsequent development phase increases following the issuance
of a development permit for a prior phase in the approval process, or if public
facilities or services included in a concurrency or SEPA determination are not
constructed as scheduled in the City's capital facilities plan, final development
approval may have to be delayed for future phases pending the achievement of the
adopted levels of service.
16.90.050 Processing Procedures and Appeals.
A. Consolidation. Whenever possible, the development agreement shall be
consolidated for processing with an underlying project permit application or other
application for approval. If the development agreement is consolidated with a
project permit application, the property owner must agree to waive the deadline in
RCW 36.708.080 and POMC Section 16.06.070 for issuance of a final decision
on the underlying application, as well as the prohibition on no more than one open
record hearing and one closed record hearing on the underlying project permit
application in RCW 36.708.060(3) and Section 16.06.110 POMC.
5
B. Public Hearing. While the Director or Hearing Examiner may provide a
recommendation on a development agreement (even if the Director or Hearing
Examiner makes the final decision on the underlying project permit application),
the City Council shall make the final decision whether to approve a development
agreement by ordinance or resolution after a public hearing. Modifications to a
development agreement shall be in writing, signed by the duly authorized
representatives of the parties, be consistent with this chapter and follow the same
procedures set forth in this chapter.
C. Appeal. A development agreement associated with an underlying project
permit application may be appealed in the same manner and within the same
deadline as the underlying project permit application. A development agreement
associated with a legislative approval, such as a comprehensive plan amendment,
may be appealed in the same manner and within the same deadline as the
legislative approval.
4. Recording Aeainst the Property. The City shall record the
development agreement against the property (at the property owner's cost) with
the real property records of the Kitsap County Auditor. During the term of the
agreement, it is binding upon the owners of the property and any successors in
interest to such property.
Section 2 Publication. This Ordinance shall be published by an approved summary
consisting of the title.
Section 3. SeverabilitlL If any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional by a 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 4. Effective Date. This Ordinance shall become effective five days after
publication as provided by law.
PASSED by the Council and approved by the Mayor of the City of Port Orchard, this
_tn duy of _, 2014.
6
CITY OF
Mavor
ATTEST/AUTHENTICATED :
City Clerk
APPROVED AS TO FORM:
Office of the City Attomey
Carol Morris, Interim City Attomey
FILED WITH THE, CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO:
7
DRAFT - May 12,2016
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
-,
WASHINGTON, RELATING TO THE STATE
ENVTRONMENTAL POLTCY ACT (SEPA), REPEALING THE
CITY'S CURRENT PROCEDURES FOR IMPLEMENTATION OF
SEPA AND ADOPTING NEW PROCEDURES FOR REVIEW OF
ALL "ACTIONS" UNDER SEPA, ISSUANCE OF THRESHOLD
DECISIONS, PREPARATION OF ENVIRONMENTAL IMPACT
STATEMENTS, PUBLIC NOTICE, COMMENT AND APPEALS;
REPEALING CHAPTER 16.16 AND ADOPTING A NEW
CHAPTER 16.16 OF THE PACIFIC MUNICIPAL CODE.
WHEREAS, the City's Environmental Policy Code (chapter 16.16 _MC)
adopts all of chapter 197-11 WAC by reference, a procedure that does not allow
for local amendments; and
WHEREAS, because the Washington State Legislature has adopted new
SEPA Rules since 2001, these new Rules have not been incorporated by
reference into the City's Environmental Policy Code chapter 16.16 _MC; and
WHEREAS, on the City's SEPA Responsible Official
determined that the adoption of this Ordinance is categorically exempt under
WAC 197-11-800(19) as an ordinance relating to procedures only; and
WHEREAS, on a copy of this ordinance was sent to the
Washington State Department of Commerce, pursuant to RCW 36.70A.106; and
WHEREAS, on 2014, the City Council held a first
reading of this Ordinance; and
WHEREAS, on 2014, this Ordinance was considered by
the City Council in a second reading; Now, Therefore,
I
DRAFT - May 12,2016
THE CITY COUNCIL OF THE C|TY OF _, WASHINGTON,
ORDAINS AS FOLLOWS:
Section 1. Chapter 16.16 of the Municipal Code is hereby
repealed.
Section 2. A new chapter 16.16 is hereby added to the Municipal
Code, which shall read as follows:
Chapter 16.16
ENVIRONMENTAL REVIEW
STATE ENVTRONMENTAL POLTCY ACT (SEPA)
Sections.
16,16.010
16.16.020
16.16.030
16.16.040
16.16.050
16.16.060
16.16.070
16.16.080
16.16.090
16.16.100
16.16.110
16.16.120
16.16.130
16.16.140
16.16.150
16.16.160
16.16.170
16.16.180
16.16.190
16.16.200
16.16.210
16.16.220
16.16.230
16.16.240
16.16.250
Authority.
Definitions adopted by reference.
Add itional defi nitions.
Process.
Designation of responsible officia!.
Lead agency determination and responsibilities.
Transfer of lead agency status to state agency.
Categorical exemptions - Adoption by reference.
Gategorical exemptions - Determination.
Flexible thresholds for categorical exemptions.
(removed)
lntegration of SEPA with project permit decisions.
Th reshold determi nations.
Environmental checklist.
Timing.
Mitigated DNS.
Envi ronmental im pact statement.
Preparation of EIS - Additional considerations.
Additional elements to be covered by EIS.
(removed)
Public notice.
Designation of official to perform consulted agency
responsibilities for the City.
Using existing environmental documents.
SEPA and agency decisions.
Substantive authority.
2
16.16.010 Authority. The City adopts this chapter under the State
Environmental Policy Act (SEPA), RCW 43.21C.120 and the SEPA Rules,
chapter 197-11 WAC. This ordinance contains the City's SEPA procedures and
policies. The SEPA Rules, chapter 197-11 WAC must be used in conjunction
with this chapter.
16.16.020 Definitions. This part contains the basic requirements that apply to
the SEPA process. The City adopts the following sections of chapter 197-11 of
the Washington Administrative Code by reference:
WAC
DRAFT - May 12,2016
16.16.260
16.16.260
16.16.270
16.16.280
16.16.290
16.16.300
197-11-040
197-11-220
197-11-700
197-11-702
197-11-704
197-11-706
197-11-708
197-11-710
197-11-712
197-11-714
197-11-716
197-11-718
197-11-720
197-11-721
197-11-724
197-11-726
197-11-728
197-11-730
197-11-732
197-11-734
197-11-736
197-11-738
197-11-740
197-11-742
197-11-744
197-11-746
197-11-750
Appeals.
Notice/statute of I imitations.
Agency compliance.
Critical areas.
Fees.
Adoption of forms by reference.
Definitions.
SE PA/G IVIA defin itions.
Definitions.
Act.
Action.
Addendum.
Adoption.
Affected Tribe.
Affecting.
Agency.
Applicant.
Built Environment.
Categorical exem ption.
Consolidated appeal.
Consulted agency.
Cost-benefit analysis.
County/city.
Decision-maker.
Department.
Determination of nonsignificance (DNS).
Determination of significance (DS).
EIS.
Environment.
Environmental checklist.
Environmental document.
Environmental review.
Expanded scoping.
aJ
DRAFT - May 12,2016
197-11-752
197-11-754
197-11-756
197-11-758
197-11-760
197-11-762
197-11-764
197-11-766
197-11-768
197-11-770
197-11-772
197-11-774
197-11-775
197-11-776
197-11-778
197-11-780
197-11-782
197-11-784
197-11-786
197-11-788
197-11-790
197-11-792
197-11-793
197-11-794
197-11-796
197-11-797
197-11-799
lmpacts.
lncorporation by reference.
Lands covered by water.
Lead agency.
License.
Local agency.
Major action.
Mitigated DNS.
Mitigation.
Natural environment.
NEPA.
Nonproject.
Open record hearing.
Phased review.
Preparation.
Private project.
Probable.
Proposal.
Reasonable alternative.
Responsible official.
SEPA.
Scope.
Scoping.
Significant.
State agency.
Threshold determination.
Underlying government action
16.16.030 Additional definitions. ln addition to those definitions contained with
WAC 197-11-700 through 197-11-799 and 197-11-220, when used in this
chapter, the following terms shall have the following meanings, unless the
context indicates othenruise:
A. "Department" means any division, unit or department of the City
B. "Ordinance" or "chapter" means the ordinance, resolution or other
procedure used by the City to adopt regulatory requirements.
C. "Early notice" means the City's response to an applicant stating
whether it considers issuance of a determination of significance likely for the
applicant's proposal (m itigated determi nation of nonsignificance (M DN S)
procedures).
16.16.040. Process. The City adopts the following sections of Chapter 197-11
WAC by reference:
4
DRAFT - May 12,2016
WAC
197-11-050
197 -1 1 -055
197-11-060
197-11-070
197 -11-080
197 -11-090
197 -1 1 -1 00
197-11-158
197-11-164
197-11-168
197-11-172
197-11-210
197-11-228
197-11-230
197-11-232
197-11-235
197-11-238
197-11-250
197-11-253
197-11-256
197-11-259
197-11-265
197-11-268
Lead Agency.
Timing of the SEPA Process.
Content of Environmental Review.
Limitations on actions during SEPA Process.
I ncomplete or unavailable information.
Supporting documents.
lnformation required of applicants
GMA project review - reliance on existing plans, laws and
regulations.
Planned actions - definitions and criteria.
Ordinances or resolutions designating planned actions.
Planned actions - project review.
SEPA/GMA integration.
Overall SEPA/GMA integration procedures.
Timing of an integrated GMA/SEPA process.
SEPfuGMA integration procedures for preliminary planning,
environmental analysis, and expanded scoping.
Documents.
Monitoring.
SEPA/Model Toxics Control Act lntegration.
SEPA Lead Agency for MTCA actions.
Preliminary evaluation.
Determination of nonsignificance and EIS for MTCA
remedial actions.
Early scoping for MTCA remedial actions.
MTCA interim actions.
16.16.050 Designation of responsible official.
A. For those proposals for which the City is the lead agency, the
responsible official shall be the Community Development Director.
B. For all proposals for which the City is the lead agency, the
responsible official shall make the threshold determination, supervise scoping
and preparation of any required environmental impact statement (ElS) and
perform any other functions assigned to the "lead agency" or responsible official"
by those sections of the SEPA rules that were adopted by reference in this
chapter.
16.16.060 Lead agency determination and responsibilities.
A. The SEPA Responsible Official shall determine the lead agency for
any application for or initiation of a proposal that involves a nonexempt action, as
5
DRAFT - May 12,2016
provided in WAC 197-11-050, unless the lead agency has been previously
determined or if another agency is in the process of determining the lead agency
B. When the City is the lead agency for a proposal, the SEPA
Responsible Official shall supervise compliance with the necessary threshold
determination requirements, and if an EIS is necessary, shall supervise
preparation of the ElS.
C. When the City is not the lead agency for a proposal, all
departments of the City shall use and consider, as appropriate, either the DNS or
the final DIS of the lead agency in making decisions on the proposal. No City
department shall prepare or require preparation of a DNS or EIS in addition to
that prepared bythe lead agency, unless required underWAC 197-11-600. ln
some cases, the City may conduct supplemental environmental review under
wAC 197-11-600.
D. lf the City or any of its departments receives a lead agency
determination made by any other agency that appears inconsistent with the
criteria of WAC 197-11-253 or 197-11-922 through 197-11-940, it may object to
the determination. Any objection must be made to the agency originally making
the determination and resolved within fifteen days of receipt of the determination,
or the City must petition the department of ecology for lead agency determination
under WAC 197-11-946 within the fifteen day time period. Any such petition on
behalf of the City may be initiated by the Community Development Director.
E. Departments of the City are authorized to make agreements as to
lead agency status or shared lead agency duties for a proposal under WAC '197-
11-942 and 197-11-944; PROVIDED, that the responsible official and any
department that will incur responsibilities as the result of such agreement
approve the agreement.
F. Any department making a lead agency determination for a private
project shall require sufficient information from the applicant to identify which
other agencies have jurisdiction over the proposal.
16.16.070. Transfer of lead agency status to a state agency. For any
proposal for a private project where the City would be the lead agency and for
which one or more state agencies have jurisdiction, the City's responsible official
may elect to transfer the lead agency duties to a state agency. The state agency
with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be
the lead agency and the City shall be an agency with jurisdiction. To transfer
lead agency duties, the City's responsible official must transmit a notice of the
transfer together with any relevant information available on the proposal to the
appropriate state agency with jurisdiction. The responsible official of the City
shall also give notice of the transfer to the private applicant and any other
agencies with jurisdiction over the proposal.
6
DRAFT - May 12,2016
16.16.080 Categorical exemptions - Adoption by reference. The City adopts
the following rules for categorical exemptions from chapter 197-11 WAC:
WAC
197 -11-300
197-11-305
197-11-800
197-11-880
197-11-890
Purpose of this part.
Categorical exem ptions.
Categorical exem ptions.
Emergencies.
Petitioning DOE to change exemptions
16.16.080 Categorical exemptions - Determination
A. Each department within the City that receives an application for a
license or, in the case of governmental proposals, the department initiating the
proposal, shall determine whether the license, permit and/or proposal is exempt.
The department's determination that a proposal is exempt shall be final and is
not subject to administrative review. lf a proposal is exempt, none of the
procedural requirements of this chapter apply to the proposal. The City shall not
require completion of an environmental checklist for an exempt proposal.
B. ln determining whether or not a proposal is exempt, the Department
shall make certain that the proposal is properly defined and shall identify the
governmental licenses required (WAC 197-11-070). lf a proposal includes
exempt and non-exempt actions, the Department shall determine the lead
agency, even if the license application that triggers the Department's
consideration is exempt.
C. lf a proposal includes both exempt and nonexempt actions, the City
may authorize exempt actions prior to compliance with the procedural
requirements of this chapter, except that:
'1. The City shall not give authorization for
a. any nonexempt action;
b. any action that would have an adverse environmental
impact; or
c. any action that would limit the choice of alternatives
2. The Department may withhold approval of an exempt action that
would lead to modification of the physical environment, when such modification
would serve no purpose if the nonexempt action(s) were not approved; and
3. A department may withhold approval of exempt actions that
would lead to substantial financial expenditures by a private applicant when the
7
DRAFT - May 12,2016
expenditures would serve no purpose if the nonexempt actions were not
approved.
The City will normally identify whether an action is categorically exemptwithin days of receiving a completed application. The Community
Development Director shall certify when an application is complete based upon
review of the environmental checklist, or for project permit applications, based on
the requirements for a complete application set forth in the City's code for each
permit type. lf additional information is required to supplement the checklist, the
application shall not be certified complete until the required information is
received by the Director.
16.16.100 Flexible thresholds for categorical exemptions. [this section is
optional. The lowest level in the ranges below apply unless the City raises the
level based on local conditions, such as previous DNSs on the activities or the
City's development codes The City may raise the level for an exemption to any
point up to the maximum specified in WAC 197-11-800(1)(c), once levels are
established in this ordinance, the City must apply a level to all projects within the
geographic area. ttlake a choice to include this section.l
A. The City establishes the following exempt level for minor new
construction under WAC 197-11-800(1)(b) based on local conditions:
1. For residential dwelling units in 197-11-800(1XbXi) (NOTE:
range 4-20 units) Up to _ dwelling units.
2. For agricultural structures in WAC 197-11-800(1Xb)(ii)
(NOTE: Range 10,000 to 30,000 square feet): Up to _ square feet.
3. For office, school, commercial, recreational, service or
storage buildings in WAC 197-11-800(lXbxiii) NOTE: Range ts 4,000 to 12,000
square feet and 20-40 parking spaces) Up to _ square feet and up to _
parking spaces.
4. For parking lots in WAC 197-11-800(1)(b)(iv) (NOTE: Range
20-40 parking spaces): Up to _ parking spaces.
5. For landfills and evacuations in WAC 197-11-800(1XbXv)
(Note: Range is 100-500 cubic yards) Up to _ cubic yards.
B. Whenever the City establishes new exempt levels under this
section, it shall send them to the Department of Ecology, Headquarters Office,
Olympia, WA 98504 under WAC 197-11-800(1Xc).
16.16.110 lntegration of SEPA with proiect permit and land use
decisions. Under chapter 36.708 RCW, the procedure for review and
8
DRAFT - May 12,2016
processing of project permit applications shall be combined with the
environmental review process, both procedural and substantive. The process
under the State Environmental Policy Act (SEPA) and this chapter shall integrate
the following procedures, insofar as possible, with any applicable process for
decision-making on permit and land use applications:
A. Staff review of the application under City codes and regulations and
the environmental review and determination thereon;
B. The staff report on the application, and the report or documentation
concerning environmental review;
C. Hearings and other public processes, including required public
notices, required by City code or regulation, and hearings and other public
processes, including public notices and appeals, required or conducted under
SEPA,
D. Such other review processes as determined by the Community
Development Director.
16.16.130 Threshold determinations. This part contains the rules for deciding
whether a proposal has a "probable, significant, adverse environmental impact"
requiring an environmental impact statement to be prepared. This part also
contains rules for evaluating the impacts of proposals not requiring an ElS. The
City adopts the following sections by reference, as supplemented in this part:
WAC
197 -11 -31 0
197-11-315
197 -11-330
197 -11-335
197-11-340
197 -1 1 -350
197 -1 1 -355
197 -1 1 -360
197 -1 1 -390
Threshold determination required.
Envi ronmental Checklist.
Threshold Determination Process.
Additional lnformation.
Determination of Significance (DS)
Nlitigated DNS.
Optional DNS process.
Determination of significance (DS)(initiation of scoping)
Effect of threshold determination
16.16.140 Environmental Checklist.
A. Except as provided in subsection (4) of this section, a completed
environmental checklist (or a copy), in the form provided in WAC 197-11-960,
shall be filed at the same time as an application for a permit, license, certificate
or other approval not specifically exempted in this chapter, except that a checklist
is not needed if the City and applicant agree that an EIS is required, SEPA
compliance has been completed, or SEPA compliance has been initiated by
9
DRAFT - May 12,2016
another agency. The City shall use the environmental checklist to determine the
lead agency, and if the City is the lead agency, for determining the responsible
official and for making the threshold determinations.
B. For private proposals, the City will require the applicant to complete the
environmental checklist, providing assistance as necessary. For City proposals,
the Department initiating the proposal shall complete the environmental checklist
for that proposal.
C. [This is optional lnclude this or not?] The City may require that it,
and not the private applicant, will complete all or part of the environmental
checklist for a private proposal, if either of the following occurs:
1. The City has technical information on a question or questions
that are unavailable to the private applicant; or
2. The applicant has provided inaccurate information on previous
proposals or on proposals currently under consideration.
D. [This section is used if we include the planned action alternative.]
For projects submitted as planned actions under WAC 197-11-164, the City shall
use its existing environmental checklist form or may modify the environmental
checklist form as provided in WAC 197-11-315. The modified environmental
checklist form may be prepared and adopted along with or as part of a planned
action ordinance; or developed after the ordinance is adopted. ln either case, a
proposed modified environmental checklist form must be sent to the Department
of Ecology to allow at least a thirty-day review prior to use.
16.16.150 Timing. For those project permit applications that are not subject to
chapter 36.708 RCW, the following will apply:
A. The City will attempt to issue a threshold determination on a
completed application within ninety (90) days after the application and supporting
documentation are complete.
B. A complete application for a threshold determination consists of the
following information :
1. A description of the proposed action;
2. Site information, including site plans, vicinity maps and other
information required for a land use certification or other application;
3. The environmental checklist;
4. Additional information/environmental checklist (WAC 197-11-
335). The environmental checklist covers sixteen (16) subjects. lf, after review
of the environmental checklist, it is determined that there is insufficient
10
DRAFT - May 12,2016
information to make a threshold determination, additional information will be
required using any one or more of the following:
a. The applicant will provide more information on
subjects in the checklist;
b. The City makes its own further study;
c. The City will consult with other agencies, requesting
information on the proposal's probable or potential impacts which lie within the
other agency's jurisdiction or expertise.
C. lt is the policy of the City that adequate information must be
provided before a threshold decision can be made. The City will not commence
processing environmental checklists which are not complete.
16.16.160 Mitigated DNS.
A. As provided in this section and in WAC 197-11-350, the responsible
official may issue a DNS based on conditions attached to the proposal by the
responsible official or on changes to, or clarifications of, the proposal made by
the applicant.
B. An applicant may request in writing early notice of whether a DS is
likely under WAC 197-11-350. The request must:
1. Follow submission of a permit application and environmental
checklist for a nonexempt proposal for which the department is lead agency; and
2. Precede the City's actual threshold determination for the
proposal
C. The responsible official should respond to the request for early
notice within [fill in] working days. The response shall:
1. Be written;
2. State whether the City currently considers issuance of a DS
likely and if so, indicate the general or specific area(s) of concern that is/are
leading the City to consider a DS; and
3. State that the applicant may change or clarify the proposal to
mitigate the indicated impacts, revising the environmental checklist and/or permit
application as necessary to reflect the changes or clarifications.
D. As much as possible, the City should assist the applicant with
identification of impacts to the extent necessary to formulate mitigation
measures.
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DRAFT - May 12,2016
F. When an applicant submits a changed or clarified proposal, along
with a revised or amended environmental checklist, the City shall base its
threshold determination on the changed or clarified proposal and should make
the determination within fifteen days of receiving the changed or clarified
proposal;
1. lf the City indicated specific mitigation measures in its
response to the request for early notice, and the applicant changed or clarified
the proposal to include those specific mitigation measures, the City shall issue
and circulate a DNS under WAC 197-11-340(2).
2. lf the City indicated areas of concern, but did not indicate
specific mitigation measures that would allow it to issue a DNS, the City shall
make the threshold determination, issuing a DNS or DS as appropriate.
3. The applicant's proposed mitigation measures (clarifications,
changes or conditions) must be in writing and must be speciflc. For example,
proposals to "control noise" or "prevent storm water runoff" are inadequate,
whereas proposals to "muffle machinery to X decibel" or "construct 200-foot
storm water retention pond at Y location" are adequate.
4. Mitigation measures which justify issuance of a mitigated
DNS may be incorporated in the DNS by reference to agency staff reports,
studies or other documents.
G. The City may use Option 1 or Option 2 in this section. Option
1: A mitigated DNS is issued underWAC 197-11-340(2), requiring a fourteen-
day comment period and public notice. Option 2: A mitigated DNS is issued
under either WAC 197-11-340(2), requiring a fourteen-day comment period and
public notice, or WAC 197-11-355, which may require no additional comment
period beyond the comment period on the notice of application.
H. Mitigation measures incorporated in the mitigated DNS shall be
deemed conditions of approval of the permit decision and may be enforced in the
same manner as any term or condition of the permit, or enforced in any manner
specifically prescribed by the City.
l. lf the City's tentative decision on a permit or approval does not
include mitigation measures that were incorporated in a mitigated DNS for the
proposal, the City should evaluate the threshold determination to assure
consistency with WAC 197-11-3a0(3)(a) (withdrawal of DNS).
J. The City's written response under subsection (B) of this section
shall not be construed as a determination of significance. ln addition, preliminary
discussion of clarifications or changes to a proposal, as opposed to a written
t2
DRAFT - May 12,2016
request for early notice, shall not bind the City to consider the clarifications or
changes in its threshold determination.
16.16.170 Environmental Impact Statement. This part contains the rules for
preparing environmental impact statements. The City adopts the following
sections by reference, as supplemented by this part:
WAC
197-11-400
197-11-402
197-11-405
197 -11-406
197-11-408
197-11-410
197-11-420
197-11-425
197-11-430
197-11-435
197-11-440
197-11-442
197-11-443
197-11-444
197-11-450
197-11-455
197-11-460
Purpose of EIS
General Requirements
EIS types
EIS timing
Scoping
Expanded Scoping (Optional)
EIS preparation
Style and Size
Format
Cover letter or memo
EIS contents
Contents of EIS on nonproject proposals
EIS contents when prior nonproject EIS
Relationship of EIS to other considerations
Cost-benefit analysis
lssuance of DEIS
lssuance of FEIS
16.16.180 Preparation of EIS - Additional Considerations.
A. Preparation of draft and final ElSs (DEIS and FEIS) and draft and final
supplemental ElSs (SEIS) is the responsibility of lfiil
inl under the direction of the responsible official. Before the City issues an ElS,
the responsible official shall be satisfied that it complies with this ordinance and
chapter 197-11 WAC. When there is a project permit application, preparation of
the EIS is the responsibility of the applicant, under direction of the responsible
official. However, when there is no project permit application, the Community
Development Director shall have the discretion to determine the responsibility for
preparation of the ElS, under the direction of the responsible official based on the
circumstances.l
B. The DEIS and FEIS or draft and final SEIS shall be prepared by the
City staff, the applicant, or by a consultant selected by the City. lf the
I For example, if there are five comprehensive plan amendments submitted during the annual amendment
process, four of which are submitted by private properry owners and one from the City, the Community
Development Director may allocate the financial responsibility for the EIS preparation between the
properry owners and the City.
13
DRAFT - May 12,2016
responsible official requires an EIS for a proposal and determines that someone
other than the City will prepare the ElS, the responsible official shall notify the
applicant immediately after completion of the threshold determination. The
responsible official shall also notify the applicant of the City's procedure for EIS
preparation, including approval of the DEIS and FEIS prior to distribution.
C. The City may require an applicant to provide information the City
does not possess, including specific investigations. However, the applicant is not
required to supply information that is not required under this chapter or that is
being requested from another agency. However, this does not apply to
information the City may request under another ordinance or statute.
D. Subject to delays caused by the applicant's failure to provide
information requested by the City and other delays beyond the City's control, an
EIS will be completed within one (1) year of the date of the declaration of
significance, unless an appeal is files or the City and applicant agree in writing to
a different estimated time period for completion of the ElS.
16.16.190 Additional elements to be covered by ElS. The following additional
elements are part of the environment for the purpose of EIS content, but do not
add to the criteria for threshold determinations or perform any other function or
purpose under this chapter: economy; social policy analysis and costbenefit
analysis.
16.16.200 Adoption by reference. This part contains rules for consulting,
commenting and responding on all environmental documents under SEPA,
including rules for public notice and hearings. The City adopts the following
sections by reference, as supplemented by this part:
WAC
197-11-500
197-11-502
197-11-504
197-11-508
197-11-510
197-11-535
197-11-545
197 -1 1 -550
197 -1 1 -560
197-11-570
Purpose of this part
lnviting comment
Availability and cost of environmental documents
SEPA register
Public notice
Public hearings and meetings
Effect of no comment
Specificity of comments
FEIS response to comments
Consulted agency costs to assist lead agency
16.16.210 Public notice.
A. Whenever the City issues a DNS under WAC 197-11-340(2) or a DS
under WAC 197-11-360(3), the City shall give public notice as follows:
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DRAFT * May 12,2016
1. lf public notice is required for a nonexempt license, the
notice shall state whether a DS or DNS has been issued and when comments
are due;
2. lf no public notice is required for the permit or approval, the
City shall give notice of the DNS or DS by: [Select at least one of the
followingl
a. Posting the property, for a site-specific proposal;
b. Publishing notice in a newspaper of general
circulation in the county, city or general area where the proposal is located;
c. Notifying public or private groups which have
expressed interest in a certain proposal or in the type of proposal being
considered;d. Notifying the news media;e. Placing notices in appropriate regional, neighborhood,
ethnic or trade journals; and/orf. Publishing notice in agency newsletters and/or
sending notice to agency mailing lists (either general lists or lists for specific
proposals for subject areas); or
g.[any other method]
B. When the City issues a DS under WAC 197-11-360(3), the City
shall state the scoping procedure for the proposal in the DS as required in WAC
197-11-408 and in the public notice.
C. Whenever the City issues a DEIS under WAC 197-1'l-455(5) or a
SEIS under WAC 197-11-620, notice of the availability of those documents shall
be given by:
1. lndicating the availability of the DEIS in any public notice
required for a nonexempt license; and [use at least one of the following]:
a. Posting the property, for site-specific proposals;
b. Publishing notice in a newspaper of general
circulation in the County, City or general area where the proposal is located;
c. Notifying public or private groups which have
expressed interest in a certain proposal or in the type of proposal being
considered;
d. Notifying the news media;
e. Placing notices in appropriate regional, neighborhood,
ethnic or trade journals; and/or
f. Publishing notice in agency newsletters and/or
sending notice to agency mailing lists (general lists or specific lists for proposal or
subject areas); and/or
15
DRAFT - May 12,2016
any other methodl
D. Whenever possible, the City shall integrate the public notice
required under this Section with existing notice procedures for the City's
nonexempt permit(s) or approval(s) required for the proposal.
E. The City may require an applicant to complete the public notice
requirements for the applicant's proposal at his/her expense.
'|.6.16.220 Designation of official to perform consulted agency
responsibilities for the City.
A. The shall be responsible for preparation of
written comments for the City in response to a consultation requires prior to a
threshold determination, participation in scoping, and reviewing a DEIS.
B. The shall be responsible for the City's compliance
with WAC 197-11-440 whenever the City is a consulted agency and is authorized
to develop operating procedures that will ensure that responses to consultation
requests are prepared in a timely fashion and include data from all appropriate
departments of the City.
16.16.230 Using Existing Environmental Documents. This part contains
rules for using and supplementing existing environmental documents prepared
under SEPA or National Environmental Policy Act (NEPA) for the City's own
environmental compliance. The City adopts the following sections by reference
WAC
g
197 -11-600
197-11-610
197-11-620
197-11-625
197-1'1-630
197-11-635
197-11-640
When to use existing environmental documents
Use of NEPA documents
Supplemental environmental impact statement -
procedures
Addenda - procedures
Adoption - procedures
lncorporation by reference - procedures
Combining documents
16.16.240 SEPA and Agency Decisions. This part contains rules (and
policies) for SEPA's substantive authority, such as decisions to mitigate or reject
proposals as a result of SEPA. This part also contains procedures for appealing
SEPA determinations to agencies or the courts. The City adopts the following
sections by reference:
WAC
16
DRAFT - May 12,2076
197-11-650
197-11-655
197-11-660
197-11-680
Purpose of this part
lmplementation
Substantive authority and mitigation
Appeals
1 6.1 6.250 Substantive authority.
A. The policies and goals set forth in this ordinance are supplementary
to those in the existing authorization of the City.
B. The City may attach conditions to a permit or approvalfor a
proposal, so long as:
1. Such conditions are necessary to mitigate specific probable
adverse environmental impacts identified in environmental documents prepared
pursuant to this chapter; and
2. Such conditions are in writing; and
3. The mitigation measures included in such conditions are
reasonable and capable of being accomplished; and
4. The City has considered whether other local, state, or
federal mitigation measures applied to the proposal are sufficient to mitigate the
identified impacts; and
5. Such conditions are based on one or more policies in
subsection (D) of this section and cited in the license or other decision document.
C. The City may deny a permit or approvalfor a proposal on the basis
of SEPA so long as:
1. A finding is made that approving the proposal would result in
probable significant adverse environmental impacts that are identified in a FEIS
or final SEIS prepared pursuant to this chapter; and
2. A finding is made that there are no reasonable mitigation
measures capable of being accomplished that are sufficient to mitigate the
identified impact; and
3. The denial is based on one or more policies identified in
writing the decision document.
D. The City designates and adopts by reference the following policies
as the basis for the City's exercise of authority pursuant to this section:
t7
DRAFT - May 12,2016
1. The City shall use all practicable means, consistent with
other essential considerations of state policy, to improve and coordinate plans,
functions, programs, and resources to the end that the state and its citizens may:
a) fulfill the responsibilities of each generation as trustee
of the environment for succeeding generations;
b) assure for all people of Washington safe, healthful,
productive and aesthetically and culturally pleasing surroundings;
c) attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or other undesirable
and unintended consequences;
d) preserve important historic, cultural and natural
aspects of our national heritage;
e) maintain, wherever possible, an environment which
supports diversity and variety of individual choice;
0 achieve a balance between population and resource
use which will permit high standards of living and a wide sharing of life's
amenities; and
g) enhance the quality of renewable resources and
approach the maximum attainable recycling of depletable resources;
2. The City recognizes that each person has a fundamental
and inalienable right to a healthful environment and that each person has a
responsibility to contribute to the preservation and enhancement of the
environment.
3. The City adopts by reference the policies in the following
City codes, ordinances, resolutions and plans, as they now exist or may hereafter
be amended, as a possible basis for the exercise of substantive SEPA authority
in the conditioning or denying of proposals:
Chapter 43.21C RCW - State Environmental Policy
Chapter of the _tVlC Business Licenses and
Regulations,
Chapter _ of the _MC - Animals.
Chapter _ of the _MC - Health and Safety.
Chapter _ of the _MC -- Vehicles and Traffic.
Chapter _ of the _MC -- Streets and Sidewalks
Chapter _ of the _MC -- Water and Sewers.
a.
b.
c.
d.
e.
f.
g.
Act
l8
DRAFT - May 12,2016
Chapter _ of the _MC - Buildings and Construction
Chapter _ of the _MC - Subdivisions.
Chapter _ of the _MC - Zoning.
Chapter _ of the _MC - Administration of
Development Regulations
The City of _ Comprehensive Plan.
The City of _ Shoreline Master Program
The City's Six Year Road Program.
The City's Comprehensive Water Plan.
The City's Comprehensive Sewer Plan.
Chapter _ of the _MC - Critical Areas.
City's Public Works Standards.
City's Storm Water lVlanagement Ordinance.
Comprehensive Parks Plan.
School District Capital Facilities Plan;
4. The City establishes the following additional policies
A. Schools. ln order to ensure that adequate school
facilities are available to serve new growth and
development, as well as to ensure that such new growth
and development provides mitigation for direct impacts
on school facilities identified by the school district as a
consequence of proposed development, the City may
impose school mitigation fees, all as provided in RCW
82.02.020.
B. Police. ln order to ensure that the City's acceptable level
of service for police response is not diminished as a
result of new growth and development and to ensure that
new growth and development provides mitigation for the
direct impacts on the City's Police Department that are
identified by the City as a consequence of proposed
development, the City may impose Police and
Emergency Response mitigation fees, all as provided in
RCW 82.02.020.
C. Other City Services. ln order to that the City's
acceptable level of service to citizens for all other
government services and utilities is not diminished as a
result of new growth and development, the City may
impose mitigation fees, all as provided in RCW 82.02.020
for parks and general governmental buildings.
h.
i.
j.
k.
t.
m
n.
o.
p
q.
r.
S.
t.
u.
V.
16.16.260 Appeals
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DRAFT - May 12,2016
The City establishes the following administrative appeal procedures under
RCW 43.21C.075 and WAC 197-110-680:
A. Appealable Decisions
1. Only the following decisions may be administratively appealed
under this chapter: (a) Final threshold determination; (2) mitigation or
failure to mitigate in the SEPA decision; (3) Final EIS; and (4) project
denials.
2. lf the City does not provide for a hearing or appeal on the
underlying action/permit, then the SEPA administrative appeal on the
decisions listed in Subsection 19.04.260(A)(1)above shall be the only
hearing and appeal allowed on the underlying action/permit.
B. Notice of Decision
1. ln the Notice of Decision issued by the City pursuant to PttIC
and for every decision for which an appeal is available in this Section, the
SEPA Responsible Official shall give official notice of the date and place for
commencing an appeal. The notice shall include:
a) Notice that the SEPA issues must be appealed within
the time limit set by statute or ordinance for appealing the underlying
governmental action;
b) The time limit for commencing the appeal of the
underlying governmental action and SEPA issues, and the statute or ordinance
establishing the time limit;
c) Where the appeal may be filed.
2. Written notice shall be provided to the applicant, all parties to
any administrative appeal and all persons who have requested notice of
decisions concerning the project. Such notice may be appended to the permit,
the decision documents, the SEPA compliance documents or may be printed
separately.
C. Timinq of Appeal. The appeal shall take place prior to the City's
final decision on a proposed action. However, the SEPA open record appeal
hearing may be consolidated with any other hearing on the underlying permit or
action.
D. Number of Appeals: Only one administrative appeal to the City is
allowed of the decisions listed in Subsection 16.16.260(A) above.
E. Consol Appeals. lf the unde rlying action/permit requires a
hearing, any SEPA appeal shall be consolidated with the hearing or appeal of the
20
DRAFT - May 12,2016
underlying action/permit into one simultaneous hearing, with the exception of the
following:
1. An appeal of a determination of significance (DS);
2. An appeal of a procedural determination made by the City
when the City is a project proponent, or is funding a project, and chooses
to conduct its review under SEPA, including any appeals of its procedural
determinations, prior to submitting an application for a project permit.
Subsequent appeals of substantive determinations by an agency with
jurisdiction over the proposed project shall be allowed under the SEPA
appeal procedures of the agency with jurisdiction;
3. An appeal of a procedural determination made by the City on
a nonproject action; and4. An appeal to the City Council under RCW 43.21C.060.
F. llmlns of Appeal
1. SEPA Decision issues at the same time as underlying
action. An appeal of a SEPA decision that issued at the same time as the
decision on a projectaction shall befiled within fourteen days (14) days
after issuance of a notice of decision under Section (or RCW
36.708.130), or after notice that a decision has been made and is
appealable.
2. SEPA Decision allows Public Comment For a DNS or
MDNS for which public comment is required (under this chapter) the
appeal period shall be extended for an additional seven days.
3. SEPA Threshold Decision issues prior to decision on
underlying action. An appeal of a threshold decision issued prior to a
decision on a project action shall be filed within fourteen ('14) days after
notice that the decision has been made and is appealable.
G. Consideration of SEPA Res onsib le Official's Decision.Procedural
determinations made by the SEPA Responsible Official shall be entitled to
substantial weight by the hearing examiner or city council in an appeal.
H. Administrative Record. An administrative record of the appeal must
be provided, and the record shall consist of the following
a. Findings and conclusions;
b. Testimony under oath; and
c. A taped or written transcript. [The City may require that
the appellant provide an electronic transcript.l
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DRAFT - May 12,2016
l. Exhaustion of Administrative Remedies The City's administrative
appeal procedure must be used before anyone may initiate judicial review of any
SEPA issue for which the City allows an appeal in this Section.
J. Content of Appeal. Every appeal must be in writing, and must
include the following:
1. The applicable appeal fee, as established by Resolution of
the City Council;2. Appellant's name, address and phone number;3. A statement describing the appellant's standing, or why the
appellant believes that he or she is aggrieved by the decision appealed from;4. ldentification of the application and decision which is the
subject of the appeal;5. Appellant's statement of grounds for appeal and the facts
upon which the appeal is based with specific references to the facts in the record;6. The specific relief sought;7. A statement that the appellant has read the appeal and
believes the content to be true, followed by the appellant's signature.
K. Timeliness of Appeals. On receipt of a written notice of appeal, the
SEPA Responsible Official shall fonrvard the appeal to the hearing examiner or
city council (whichever is the hearing officer/body on the appeal), who shall
determine whether the appeal is timely prior to the scheduling of any appeal
hearing or consolidated open record hearing on an underlying project permit. A
written decision will issue if the appeal is untimely and the appeal will not
proceed.
L. Hearinq Examiner Appeals.
1. Jurisdiction. All administrative appeals relating to project
permit applications or any type of quasi-judicial or ministerial development
applications that are not appealable to the City Council (pursuant to
) shall be heard by the Hearing Examiner
2. Hearing. The Hearing Examiner shall hold an open record
public hearing on the appeal, as provided in chapter _.2. Date for /ssuance of Decision. The hearing examiner shall
issue a decision on the appeal within the time period set forth ifl _,
unless a longer period is agreed to in writing by the applicant and hearing
examiner.
3. Appeals of Hearing Examiner's Decision. The hearing
examiner's decision on the timeliness of an appeal within his/her
jurisdiction, and any other appeals allowed under this subsection within
his/her jurisdiction shall be the final decision of the City. The hearing
examiner's decision shall state that any appeal of the final decision shall
22
DRAFT - May 12,2016
be filed in _ County Superior Court (pursuant to chapter 36.70C
RCW), or the Shorelines Hearings Board, if applicable.
tvl. City Council Appeals
1. Jurisdiction. The City Council shall hear all administrative
appeals relating to legislative actions and applications. ln addition, the
City Council shall hear appeals relating to any other applications that are
appealable to the City Council (pursuant to2. Hearing. For all legislative actions and applications, the City
Council shall hold an open record hearing (chapter For any
SEPA appeals relating to applications for which the City Council has
jurisdiction (pursuant to , the City Council shall hold an open
record hearing (chapter _)3. Record on AppeaL The evidence and testimony
received by the Council in a SEPA appeal shall be presented in an open
record hearing.
4. Appeals of City Council's Decision. The City
Council's decision on the timeliness of an appeal within its jurisdiction and
any other appeals allowed under this subsection within its jurisdiction shall
be the final decision of the City. The City Council's decision shall state
that any appeal of the final decision may be filed in _ County Superior
Court within 21 days (if applicable) or within 60 days to the Growth
Management Hearings Board, pursuant to RCW 36.70A.290(2).
N. JudicialAppeals
1. When SEPA applies to a decision, any judicial appeal of
that decision potentially involves both those issues pertaining to SEPA
and those which do not. This Section and RCW 43.21C.075 establish the
time limits for raising SEPA issues, but existing statutes of limitation
control the appeal of non-SEPA issues.
2. Appeals of the City's final decision shall be filed in superior court
(or the Growth Management Hearings Board), but appellants must follow
RCW 43.21C.075(6)(c), which provides that "judicial review under chapter
43.21C RCW shall without exception be of the governmental action
together with its accompanying environmental determinations, " wh ich
contemplates a single lawsuit.
16.16.260 Notice
A. The City, applicant for, or proponent of an action may publish a notice
of action pursuant to RCW 43.21C.080 for any action. [Optional.]
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B. The form of the notice shall be substantially in the form provided by
WAC 197-11-990. The notice shall be published by the City Clerk or County
Auditor, applicant or proponent, pursuant to RCW 43.21C.080.
16.16,270 Agency Compliance. This part contains rules for agency
compliance with SEPA, including rules for charging fees under the SEPA
process, designating categorical exemptions that do not apply within critical
areas, listing agencies with environmental expertise, selecting the lead agency
and applying these rules to current agency activities. The City adopts the
following sections by reference:
WAC
197-11-900
197-11-902
197-11-916
197-11-920
197-11-922
197-11-924
197-11-926
197-11-928
197 -1 1 -930
197-11-932
197-11-934
197-11-936
197-11-938
197-11-940
197-11-942
197-11-944
197-11-946
197-11-948
Purpose of this part.
Agency SEPA policies.
Application to ongoing actions.
Agencies with environmental expertise.
Lead agency rules.
Determining the lead agency.
Lead agency for governmental proposals.
Lead agency for public and private proposals.
Lead agency for private projects with one agency with
jurisdiction.
Lead agency for private projects requiring licenses from
more than one agency, when one of the agencies is
a countyicity.
Lead agency for private projects requiring licenses from
a local agency, not a county/city, and one or more
state agencies.
Lead agency for private projects requiring licenses from
more than one state agency.
Lead agencies for specific proposals.
Transfer of lead agency status to a state agency.
Agreements on lead agency status.
Agreements on division of lead agency duties.
DOE resolution of lead agency disputes.
Assumption of lead agency status.
16.16.280. Critical Areas. [optional]
A. The City has selected certain categorical exemptions that will not
apply in one or more critical areas identified in the critical areas identified in the
critical areas ordinances required under RCW 36.704.060. For each critical area
listed below, the exemptions within WAC 197-11-800 that are in applicable for
that area are:
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1 list each critical area and exemptions
that do not apply within that critical area; exemptions that do not apply can be
chosen from the list in WAC 197-11-908I
2
B. The scope of environmental review of actions within these areas
shall be limited to:
1. Documenting whether the proposal is consistent with the
requirements of the critical areas ordinance; and
2. Evaluating potentially significant impacts on the critical area
resources not adequately addressed by GMA planning documents and
development regulations, if any, including any additional mitigation measures
needed to protect the critical areas in order to achieve consistency with SEPA
and with other applicable environmental review laws.
C. All categorical exemptions not listed in subsection (1) of this section
apply whether or not the proposal will be located in a critical area.
16.16.290. Fees. [this entire section is optional. Recommend that the
actual fee amounfs be included in a resolution. You may use any or none
of the subsecfio ns 7 , 2 or 4 of this section but you must use 3 if the other
subsecfions are used.l
A. The City shall require the fees from the applicant for the following
activities, in accordance with the provisions of this chapter:
1. Threshold determination: For every environmental checklist,
the City will review when it is lead agency, and the City shall collect a fee from
the proponent of the proposal prior to undertaking the threshold determination.
The time periods provided in this Chapter shall not begin to run until payment of
the fee.2. Environmental impact statement.
(a) When the City is the lead agency for a proposal requiring
an EIS and the responsible official determines that the EIS shall be prepared by
employees of the city, the city may charge and collect a reasonable fee from any
applicant to cover the costs incurred by the city in preparing the ElS. The
responsible official shall advise the applicant of the projected costs for the EIS
prior to actual preparation; the applicant shall post bond or othenruise ensure
payment of such costs.
(b) The responsible official may determine that the city will
contract directly with a consultant for preparation of an EIS or a portion of the
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ElS, for activities initiated by some person or entity other than the City and may
bill such costs and expenses directly to the applicant. The City may require the
applicant to post bond or othenryise ensure payment of such costs. Such
consultants shall be selected after input from the applicant, after a call for
proposals. The City shall have the final decision on the selection of the
consultant.
(c) lf a proposal is modified so that an EIS is no longer
required, the responsible official shall refund any fees collected under (a) or (b) of
this subsection which remain after incurred costs are paid.
3. The City may collect a reasonable fee from an applicant to
cover the cost of meeting the public notice requirements of this chapter relating
to the applicant's proposal.
4. The City shall not collect a fee for performing its duties as a
consulted agency.
5. The City may charge any person for copies of any document
prepared under this chapter, and for mailing the document, in a manner provided
by the City's resolution on public records disclosure.
16.16.300 Adoption by reference. The City adopts the following forms and
sections by reference:
WAC
197-11-960
197-11-965
197-11-970
197-11-980
197-11-985
197 -11-990
Environmental checklist
Adoption notice
Determination of nonsignificance (DNS)
Determination of significance and scoping notice (DS)
Notice of assumption of lead agency status
Notice of action
Section 3 Severability. lf any section, sentence, clause or phrase of this
Ordinance shall be held to be unconstitutional or invalid by a 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.
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Section 4. Effective Date. This Ordinance shall take effect and be in full
force five (5) days after passage and publication of an approved summary
consisting of the title.
PASSED by the _ City Council this _th day of
CITY OF
MAYOR,
ATTEST/AUTHENTlCATED
By
CITY CLERK,
APPROVED AS TO FORM:
By:
CITY ATTORNEY, Carol Morris
FIRST READING:
DATE PASSED:
DATE OF PUBLICATION:
EFFECTIVE DATE:
2014
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