019-14 - Ordinance - New Chapter 16.90 Development AgreementsIntroduced by: Development Director
Drafted by: Development Director
Reviewed by: Interim City Attorney
Introduced: December 9, 2014
Public Hearing: December 9, 2014
Adopted: December 9, 2014
ORDINANCE NO. 019-14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PORT ORCHARD, 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
NOTICE, PUBLIC HEARING, RECORDING AND APPEALS;
ADOPTING A NEW CHAPTER 16.90 TO THE PORT ORCHARD
MUNICIPAL CODE AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the City of Port Orchard has no procedures to allow the City to enter
into development agreements with property owners, as described in RCW 36.7oB.170
through RCW 36.7oB.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(i9); and
WHEREAS, the City Council held a public hearing to consider this Ordinance,
together with public testimony during its regular City Council meeting on December 9,
2014; Now, Therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON,
ORDAINS AS FOLLOWS:
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Section 1. A new Chapter 16.90 is hereby added to the Port Orchard Municipal
Code, which shall read as follows:
Chapter 16.90
DEVELOPMENT AGREEMENTS
Sections:
16.9o.oio Intent and Discretionary Nature.
16.90.02o Form of Agreement, Effect and General Provisions.
16.90.030 Application Requirements.
i6.9o.040 Phasing.
16.90.050 Processing Procedures and Appeals.
i6.9o.oio Intent and Discretionary Nature.
The purpose of this chapter is to authorize the use of development
agreements, consistent with RCW 36.7oB.170 through RCW 36.7oB.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 36.7oB.17oB(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.
16.90.02o 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 36.7oB RCW and Title 16 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.
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C. Limitations. Any provision of the development agreement which
requires the City to: (1) refrain from exercising any authority; (2) forego
adoption of any development regulations affecting the property identified
in the agreement; (3) allow vesting beyond the applicable deadlines for a
phased development; shall be limited to a period of 20 years. 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 a party to the development
agreement.
F. Liabili . The development agreement shall include 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 64.4o 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 by extending the termination date. 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.
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
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must submit a verified statement from the property owner that the
applicant has the property owner's permission to submit the application;
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.
16-90.04O- 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 normally be required. In any event, the City
shall not allow vesting to extend beyond the established 20 year period
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
16.9o.030), all of the following:
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1. 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 36.7oB.o8o and POMC
Section 16.o6.070 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 36.7oB.o6o(3) and Section 16.o6.110 POMC.
B. Public Notice and Public Heariniz.
1. At a minimum, notice of the public hearing on the
development agreement shall be given as follows:
a. Notice shall be published not less than ten (1o) days
prior to the public hearing in a newspaper of general circulation within
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Kitsap County and a newspaper of general circulation in the area where
the subject real property is located;
b. Special notice of the public hearing shall be given to
adjacent landowners by any other reasonable method the City deems
necessary. Adjacent landowners are the owners of real property, as shown
by the records of the County Assessor, located within three hundred (300)
feet of any portion of the boundary of the subject property. If the owner of
the real property which is the subject of the development agreement owns
another parcel or parcels of real property which lie adjacent to the real
property included in the development agreement, notice under this
subsection 1(b) shall be given to owners of real property located within
three hundred (300) feet of any portion of the boundaries of such
adjacently located parcels of real property owned by the owner of the real
property included in the development agreement.
C. All hearing notices shall include a description of the
location of the property included in the development agreement. A
description may be in the form of either a vicinity location sketch or a
written description other than a legal description.
2. The hearing on the development agreement shall be public.
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 the public
hearing.
3. 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 Against the Property. The City shall record the
development agreement against the property 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.
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Section 2. Publication. This Ordinance shall be published by an approved
summary consisting of the title.
Section �. 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 Port Orchard,
this 9th day of December, 2014.
Cl
Timothy C. Ma es, Mayor
ATTEST:
Br nearson, City Clerk
AS TO FORM:
F1 P O;Q
1 A
Morris, City Attorney
r•�,, '��45a%
by:
Councilmember
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held December 9, 2014.
ORDINANCE NO. 019-14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PORT ORCHARD, 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
NOTICE, PUBLIC HEARING, RECORDING AND APPEALS;
ADOPTING A NEW CHAPTER 16.90 TO THE PORT ORCHARD
MUNICIPAL CODE AND ESTABLISHING AN EFFECTIVE
DATE.
Copies of Ordinance No. 019-14 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 019-14 will be
provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Publish: Port Orchard Independent
December 19, 2014