010-23 - Ordinance - Development Agreements and Sign CodeDocuSign Envelope ID: AE15DBE4-5318-4C8F-8ED8-B48A09C354FC
ORDINANCE NO. 010-23
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
RELATING TO THE CITY'S DEVELOPMENT CODE WITH REGARD TO
DEVELOPMENT AGREEMENTS AND THE CITY SIGN CODE; AMENDING
SECTION 20.26.020 OF THE PORT ORCHARD MUNICIPAL CODE TO ADD
THE SIGN CODE CHAPTER 20.132 POMC TO THE LIST OF CODE
PROVISIONS WHICH MAY BE MODIFIED BY A DEVELOPMENT
AGREEMENT; AMENDING SECTION 20.132.060 OF THE PORT ORCHARD
MUNICIPAL CODE TO PROVIDE THAT MASTER SIGN PLANS MAY BE
APPROVED BY USE OF A DEVELOPMENT AGREEMENT; PROVIDING FOR
CORRECTIONS AND SEVERABILITY; AND ESTABLISHING AN EFFECTIVE
DATE.
WHEREAS, pursuant to RCW 36.7013.170, the City Council has the authority to review and
enter into development agreements that govern the development and use of real property within
the City; and
WHEREAS, such agreements are advantageous to both municipalities and applicants by
facilitating certainty and stability in the land use permitting process, while also providing
flexibility in the innovative application of local development standards, often leading to enhanced
project design and infrastructure improvements for the public; and
WHEREAS, the City Council adopted standards and procedures governing the City's use
of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code
(POMC) which was last updated by Ordinance No. 030-20; and
WHEREAS, when a project includes signage the City's sign code (Chapter 20.132 POMC)
applies; and
WHEREAS, the Development Agreement section 20.26.020 that sets forth the code
chapters that are subject to Development Agreements does not currently include the City sign
code; and
WHEREAS, for mixed use developments, a master sign plan is required in accordance with
POMC 20.132.060; and
WHEREAS, allowing master sign plans to be approved by Development Agreement may
result in a better result for both project proponents and for the public at large;
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WHEREAS, the City Council desires to adopt the amendments to those regulations set
forth in this ordinance to enhance the City's ability to utilize development agreements for the
benefit of the City and public; and
WHEREAS, this Ordinance was submitted to the Department of Commerce for review on
February 8, 2023, and review was granted on April 9, 2023; and
WHEREAS, on February 8, 2023, the City's SEPA official issued a determination of
nonsignificance for the proposed revisions, and there have been no appeals; and
WHEREAS, the Planning Commission conducted a public hearing on the substance of this
Ordinance on March 7, 2023, and recommended adoption by the City Council; and
WHEREAS, the City Council, after careful consideration of the recommendation from the
Planning Commission, all public comment, and the Ordinance, finds that this Ordinance is
consistent with the City's Comprehensive Plan and development regulations, the Growth
Management Act, Chapter 36.70A RCW, and that the amendments herein are in the best interests
of the residents of the City and further advance the public health, safety and welfare; now,
therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS
FOLLOWS:
SECTION 1. Findings and Recitals. The recitals set forth above are hereby adopted and
incorporated as findings in support of this Ordinance.
SECTION 2. Section 20.26.020 of the Port Orchard Municipal Code is hereby amended to
read as follows:
20.26.020 Form of agreement, effect and general provisions.
(1) Form. A development agreement shall set forth the development
standards and other provisions that apply to and govern and vest the
development, use, and mitigation of the development of the real property for the
duration specified in the agreement.
(a) For the purposes of this chapter, "development standards" may
include, but are not limited to:
(i) Project elements such as residential densities, nonresidential densities
and intensities or building sizes;
(ii) The amount and payment of impact fees imposed or agreed to in
accordance with any applicable provisions of state law, any reimbursement
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provisions, other financial contributions by the property owner, inspection fees,
or dedications;
(iii) Mitigation measures, development conditions, and other
requirements under Chapter 43.21C RCW;
(iv) Design standards such as maximum heights, setbacks, landscaping, and
other development features;
(v) Affordable housing;
(vi) Parks and open space preservation;
(vii) Phasing;
(viii) Review procedures and standards for implementing decisions;
(ix) A build -out or vesting period for applicable standards; and
(x) Any other development requirement or procedure deemed appropriate
by the city council.
(b) In order to encourage innovative land use management and provide
flexibility to achieve public benefits, a development agreement adopted pursuant
to this chapter may impose development standards that differ from the following
development regulations of this code; provided, that any development standards
imposed by the development agreement shall be consistent with the
comprehensive plan:
Types;
(i) Chapter 20.08 POMC, Vesting;
(ii) Chapter 20.12 POMC, Definitions;
(iii) Chapter 20.30 POMC, Introduction to Zoning, Land Uses, and Building
(iv) Chapter 20.32 POMC, Building Types;
(v) Chapter 20.33 POMC, Greenbelt District;
(vi) Chapter 20.34 POMC, Residential Districts;
(vii) Chapter 20.35 POMC, Commercial and Mixed Use Districts;
(viii) Chapter 20.36 POMC, Industrial Districts;
(ix) Chapter 20.37 POMC, Civic and Open Space Districts;
(x) Chapter 20.38 POMC, Overlay Districts;
(xi) Chapter 20.39 POMC, Use Provisions;
(xii) Chapter 20.40 POMC, Site and Lot Dimensions;
(xiii) Chapter 20.41 POMC, Transfer of Development Rights Program;
(xiv) Chapter 20.54 POMC, Nonconformities;
(xv) Chapter 20.68 POMC, Accessory Dwelling Units;
(xvi) Chapter 20.80 POMC, Subdivisions — General Provisions;
(xvii) Chapter 20. 82 POMC, Administration and Enforcement;
(xviii) Chapter 20.84 POMC, Boundary Line Adjustments;
(xix) Chapter 20.86 POMC, Short Subdivisions;
(xx) Chapter 20.88 POMC, Subdivisions — Preliminary Plats;
(xxi) Chapter 20.90 POMC, Subdivisions — Final Plats;
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(xxii) Chapter 20.94 POMC, Binding Site Plans;
(xxiii) Chapter 20.96 POMC, Vacation and Alteration of Final Plans and
Short Plats;
(xxiv) Chapter 20.98 POMC, Improvements;
(xxv) Chapter 20.100 POMC, Development Standards —Subdivision Design;
(xxvi) Chapter 20.120 POMC, Development Standards — General
Provisions;
(xxvii) Chapter 20.122 POMC, Building Elements;
(xxviii) Chapter 20.124 POMC, Development Standards — Parking and
Circulation;
(xxix) Chapter 20.127 POMC, Design Standards;
(xxx) Chapter 20.128 POMC, Landscaping;
(xxxi) Chapter 20.129 POMC, Significant Trees;
xxxii) Chapter 20.132 POMC, Sign Code:
(xxxiii) Chapter 20.139 POMC, Residential Design Standards;
(xxx+4iv) Chapter 20.162 POMC, Critical Areas Regulations;
(xxxvv) Chapter 20.164 POMC, Shoreline Master Program;
(xxxvi) Chapter 20.182 POMC, Impact Fees.
(c) A development agreement shall not modify any provision of this code
that is not identified in subsection (1)(b) of this section.
(d) A development agreement may modify the provisions of this code only
if the city council determines that the requested modifications are necessary to
provide flexibility to achieve public benefits and provide superior outcomes than
those that would result from strict compliance with the other applicable
development standards.
(e) Any approved development standards that differ from those other
applicable development standards shall not require any further zoning
reclassification, variance from city standards or other city approval apart from
development agreement approval.
(f) Subsequently adopted standards which differ from those in the
development agreement shall apply to the subject site where necessary to address
a serious threat to public health and safety or where the development agreement
specifies a time period or phase after which certain identified standards may be
modified. Building permit applications shall be subject to the building and
construction codes in effect when the building permit application is deemed
complete.
(2) Decision Type. Development agreements are a Type V action and shall
be reviewed and approved pursuant to the procedures in Chapter 20.22 POMC
and this chapter, except that if the development agreement is consolidated with
a new or pending Type I, II, 111 or IV project permit application as defined in RCW
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36.706.020, the city council's decision to approve, deny, or modify the
development agreement may be appealed pursuant to Chapter 36.70C RCW.
(3) Effect. Development agreements are not project permit applications
and are not subject to the permit processing procedures in Chapter 36.7013 RCW
or Chapter 20.24 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, except as set forth in
this chapter. A permit or approval issued/granted by the city after execution of a
valid development agreement must be consistent with the development
agreement.
(4) Limitations.
(a) A development agreement shall be limited to a 20-year term if any
provision of the agreement requires the city to:
(i) Refrain from exercising any authority that it would have otherwise been
able to exercise in the absence of the development agreement;
(ii) Defer application to the subject property of any newly adopted
development regulations that would otherwise apply to the property identified in
the agreement; or
(iii) Allow vesting beyond the applicable deadlines for a phased
development.
(b) 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.
(c) The full costs of drafting and processing the development agreement
shall be reimbursed by the owner or applicant prior to final city council action on
the agreement to the extent such costs exceed the initial application fee.
(5) Developer's Compliance. The development agreement shall include a
clause stating that the city's duties underthe 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.
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(6) 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 a party to the development agreement.
(7) Liability. The development agreement shall include a clause providing
that any breach of the development agreement by the city shall give right 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.
(8) Termination, Modification and Extension. 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 at the time of permit application. The city
shall not modify any development agreement by extending the termination date
unless the city council makes legislative findings that the additional benefits to the
city provided by the developer in exchange for such extension of the development
agreement outweigh the impacts from the development authorized by the
extension. In no case shall an extension include the extension of provisions that
are inconsistent with state or federal law at the time of such extension. Any
request for a modification shall be consistent with the city's development
regulations applicable to the property at the time of the request, not the original
execution date of the development agreement. Any extensions granted shall be
for no more than a length of 10 years. No more than two extensions of up to 10
years shall be granted. Extensions may not be granted unless an application for an
extension is made no later than 180 days prior to the termination date in the
development agreement or prior to the termination of any extension of a
development agreement.
SECTION 3. Section 20.132.060 of the Port Orchard Municipal Code is hereby amended
to read as follows:
20.132.060 Master sign plans.
(1) Approval Required. Before the city will issue any sign permit relating to
space in a proposed new mixed use, nonresidential, multitenant building(s), or
multitenant site development, the city must first approve a master sign plan for
the building(s) and/or site development. In addition, a master sign plan may be
voluntarily developed and maintained by the owner or agent of any new or
existing nonresidential use. As an alternative to the procedures included in this
section, an applicant may apply for approval under the development agreement
procedures under chapter 20.26 POMC. If a development agreement is utilized.
then the development agreement procedures shall replace the procedures in this
section, provided, however, that the applicant will still provide the information
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listed in subsection 3 below as part of the review under the development
agreement procedures.
(2) Review Procedures. A master sign plan is a Type I permit per POMC
20.22.030. The community development director shall make the decision on the
master sign plan without a hearing. Refer to Chapter 20.24 POMC for application,
review and approval procedures.
(3) Application Requirements. A complete master sign plan application
shall consist of the following:
(a) A complete master sign plan application, including the applicant's
name, address, phone number and email address. If the applicant is not the
property owner(s), then the property owner(s) must be identified and the
application must include an affidavit from the property owner(s), verifying that
the property owner(s) has given permission to the applicant for the submission of
the master sign plan application. No sign may be placed upon real property
without the consent of the real property owner(s);
(b) A site plan drawn to legible scale, indicating the location of all buildings,
driveways and pavement areas, landscape areas, abutting streets and proposed
freestanding signs on the site;
(c) Elevation drawings of each building on a site that indicates proposed
sign locations on each of the buildings;
(d) Maximum allowable signage on each elevation based upon a five
percent calculation of all facades;
(e) The master sign plan application shall identify the sign features and sign
types proposed to be used on each building and the proposed location. In
addition, a statement shall be included which describes the manner in which the
building or site owner wishes to allocate allowable signage among tenants and
where specific tenant signage shall be located;
(f) A narrative description of the development to demonstrate that the
master sign plan meets the required design standards of this chapter; and
(g) Fees. Payment of the appropriate fee for a master sign plan.
(4) Criteria for Approval. All signs in the master sign plan must meet the
criteria for approval in POMC 20.132.050, Sign permits. In addition, all of the signs
in the master sign plan:
(a) Shall be architecturally similar and visually related to each other
through the incorporation of common design elements. Up to two sign types may
be used on any one building. All sign cabinets, trim caps and all sign supports such
as poles and braces shall be of a common color;
(b) Shall be architecturally integrated with the buildings included in the
master sign plan; and
(c) Must not obscure the view of other signs which are consistent with this
chapter.
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(5) Notice of Final Decision. See POMC 20.132.050, Sign permits.
(6) Expiration of Master Sign Plan. Once a master sign plan is approved, the
signs depicted in the approved plan must be installed within 180 days or the
master sign plan will expire. The director may grant a 180-day extension to the
master sign plan if such a request is made in writing prior to the expiration of the
master sign plan and provided that the sign plan remains consistent with the sign
regulations. Building permits and street use permits for any signs shown in the
master sign plan shall expire in accordance with other applicable code provisions.
No sign may be erected under an expired master sign plan, even if the associated
sign permit, building permit or street use permit has not expired.
(7) Amendment to Master Sign Plan. An application for an amendment to
an approved master sign plan may be made at any time, subject to the same
limitations, requirements and procedures as those that apply to an original
application in this section. Tenants whose signs are included in the amendment
application need the property owner's consent to file such application. In order to
approve any such amendment, the director shall consider the existing signs on the
building(s) subject to the approved plan when determining whether the
application meets the criteria for approval in subsection (4) of this section.
SECTION 4. Severability. If any sentence, section, provision, or clause of this Ordinance
or its application to any person, entity or circumstance is for any reason held invalid or
unconstitutional, the remainder of the Ordinance, or the application of the provision to other
persons, entities, or circumstances is not affected.
SECTION S. Corrections. Upon the approval of the city attorney, the city clerk and/or
code publisher is authorized to make any necessary technical corrections to this Ordinance,
including but not limited to the correction of scrivener's/clerical errors, references, Ordinance
numbering, section/subsection numbers, and any reference thereto.
SECTION 6. Publication and Effective Date. This Ordinance shall be in full force and effect
five (5) days after posting and publication as required by law. A summary of this Ordinance may
be published in lieu of the entire Ordinance, as authorized by state law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the Clerk in authentication of such passage this 9' day of May 2023.
DocuSigned by:
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Robert Putaansuu, Mayor
DocuSign Envelope ID: AE15DBE4-5318-4C8F-8ED8-B48A09C354FC
Ordinance No. 010-23
ATTEST:
DocuSigned by:
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Brandy Wallace, MMC, City Clerk
APPROVED AS TO FORM:
DocuSignnedd by::
Charlotte A. Archer, City Attorney
PUBLISHED: May 12, 2023
EFFECTIVE DATE: May 17, 2023
SPONSOR:
Scott Diener, Councilmember
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