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030-20 - Ordinance - Development Agreements, Amending Chapter 20.26ORDINANCE NO. 030-20 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, RELATING TO DEVELOPMENT AGREEMENTS; AMENDING SECTION 20.22.020 OF THE PORT ORCHARD MUNICIPAL CODE FOR CONSISTENCY WITH THE APPEAL PROVISIONS FOR DEVELOPMENT AGREEMENT CONTAINED IN CHAPTER 20.26 OF THE PORT ORCHARD MUNICIPAL CODE, AMENDING PORT ORCHARD MUNICIPAL CODE CHAPTER 20.26 TO ADD CLARITY ON THE USE AND PROCEDURES FOR DEVELOPMENT AGREEMENTS AND TO MAKE SUCH AGREEMENTS CONSISTENT WITH CURRENT LAW, AMENDING SECTIONS 20.26.010, 20.26.030, 20.26.050 AND ADDING NEW SECTIONS 20.26.060 AND 20.26.070; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to RCW 36.70B.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); and 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 April 2, 2020, and review was granted on April 3, 2020; and WHEREAS, on April 17, 2020, 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 October 8, 2020, 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 Ordinance No. 030-20 Page 2 of 13 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 20.22.020 of the Port Orchard Municipal Code is hereby amended to add a footnote “2” and read as follows: 20.22.020 Determination of types – Table. (1) Determination of Proper Decision Type. The director shall determine the proper review procedure for all land use and development permit applications and actions. If there is a question as to the appropriate type of process, the director shall resolve it in favor of the higher process type number. (2) Optional Consolidated Permit Processing. An application that involves two or more procedures may be processed collectively under the highest numbered procedure required for any part of the application or processed individually under each of the procedures identified by the code. The applicant may determine whether the application shall be processed collectively or individually. If the application is processed under the individual procedures option, the highest numbered type procedure must be processed prior to the subsequent lower numbered procedure. If the individual procedure option is chosen, the applicant will be eligible for any fee reduction contained in the current fee schedule. Table 20.22.020 – Permit Review Type Classifications Type I Director Decision Judicial Appeal Type II Director Decision HE Appeal Type III HE Decision Judicial Appeal Type IV City Council Decision Judicial Appeal Type V City Council Decision GMHB Appeal Building Permit1 (Subtitl e X of this title) Binding Site Plan, Final Short Plat, Preliminary, Alteration of Preliminary, Alteration of Final, Vacation Preliminary Plat, Preliminary Plat Major Modifications, Alteration of Final, Vacation of Final Final Plat (Chapter 20.90 POMC) Site-Specific Rezone without Comprehensive Plan Development Agreement (Chapter 20.26 POMC) Comprehensive Plan Ordinance No. 030-20 Page 3 of 13 Table 20.22.020 – Permit Review Type Classifications Type I Director Decision Judicial Appeal Type II Director Decision HE Appeal Type III HE Decision Judicial Appeal Type IV City Council Decision Judicial Appeal Type V City Council Decision GMHB Appeal (Chapter 20.94 POMC) Preliminary Plat – Minor Modifications (Chapter 20.88 POMC) Minor Land Disturbing Activity Permit (Chapter 20.140 POMC and POMC 20.150.1 00) Boundary Line Adjustment (Chapter 20.84 POMC) Code Interpretation (Chapter 20.10 POMC) Legal Nonconforming Permit (Chapter 20.54 POMC) Short Plat, Final (Chapter 20.86 POMC) Sign Permit (if SEPA not required) (Chapter 20.132 POMC) of Final (Chapters 20.86 and 20.96 POMC ) Temporary Use Permit (Chapter 20.58 P OMC) Binding Site Plan – Preliminary, Alteration of Preliminary, Alteration of Final, Vacation of Final (Chapter 20.94 P OMC) Stormwater Drainage Permit (Chapter 20.150 POMC) Sign Permit (if SEPA required) (Chapter 20.132 POMC) Shoreline Substantial Development Permit, Administrative (Chapter 20.164 POMC) (Chapters 20.88 and 2 0.96 POMC) Variance (Chapter 20.28 POMC) Conditional Use Permit (Chapter 20.50 POMC) Shoreline Substantial Development Permit, Conditional Use Permit, and Nonadministrative Variance (Chapter 20.164 POM C) Planned Residential Developments Comprehensive Sign Design Plan Permits Final Plat – Alteration or Vacation (Chapter 20.96 POMC) View Protection Overlay District (VPOD) Variance (POMC 20.38.860) Amendment (Chapter 20.42 POMC) Amendment – Land Use Map Amendment, Text Amendment (Chapter 20.04 POMC) Legislative Zoning Map Amendment (Chapter 20.06 POMC) POMC Title 20 Code Amendment (Chapter 20.06 POMC) Annexations2 Ordinance No. 030-20 Page 4 of 13 Table 20.22.020 – Permit Review Type Classifications Type I Director Decision Judicial Appeal Type II Director Decision HE Appeal Type III HE Decision Judicial Appeal Type IV City Council Decision Judicial Appeal Type V City Council Decision GMHB Appeal Sign Variance (Chapter 20.132 POMC) Shoreline Permit Exemption (Chapter 20.164 POMC) Temporary Use Permit, Extension (Chapter 20.58 POMC) Major Land Disturbing Activity Permit (Chapter 20.140 POMC and POMC 20.150.10 0) Variance – Administrative (Chapter 20.28 P OMC) Untyped review and decision actions: preapplication meeting (Chapter 20.24 POMC), design review board review and recommendation (POMC 20.127.030), tax exemption for multifamily development (Chapter 3.48 POMC), capacity reservation certificate (Chapter 20.180 POMC), public works design variation, right-of-way permit (Chapter 12.04 POMC), street use permit (Chapter 12.24 POMC), water/sewer connection permit (Chapter 13.04 POMC). 1 If a building permit application does not require SEPA review, no public notice is required. If a building permit application requires SEPA review, public notice shall be provided consistent with the requirements for Type II applications pursuant to Chapter 20.25 POMC. 2 A Development Agreement that is consolidated with a Type I, II, III, or IV project permit application may be appealed pursuant to chapter 36.70C RCW. SECTION 3. Amendment. Chapter 20.26 of the POMC is hereby amended to read as follows: POMC 20.26 PERMITTING AND DEVELOPMENT APPROVAL – DEVELOPMENT AGREEMENTS DEVELOPMENT APPROVAL – DEVELOPMENT AGREEMENTS Ordinance No. 030-20 Page 5 of 13 Sections: 20.26.010 Intent and discretionary nature. Purpose and authority. 20.26.020 Form of agreement, effect and general provisions. 20.26.030 Application requirements. 20.26.040 Phasing. 20.26.050 Processing procedures and appeals. 20.26.060 Discretionary legislative action. 20.26.070 Unauthorized fees prohibited. 20.26.010 Intent and discretionary nature. Purpose and authority. The purpose of this chapter is to authorize the use of development agreements, consistent with RCW 36.70B.170 through 36.70B.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 herein, pursuant to RCW 36.70B.170B(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. 20.26.020 Form of agreement, effect and general provisions. (1) Form. All development agreements shall be on the standard form approved in advance by the city attorney for this purpose. 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 provisions, Ordinance No. 030-20 Page 6 of 13 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 the Port Orchard Municipal Code, provided that any development standards imposed by the development agreement shall be consistent with the comprehensive plan: i. Chapter 20.08 Vesting ii. Chapter 20.12: Definitions iii. Chapter 20.30: Introduction of Zoning, Land Uses, and Building Types iv. Chapter 20.32: Building Types v. Chapter 20.33: Greenbelt Districts vi. Chapter 20.34: Residential Districts vii. Chapter 20.35: Commercial and Mixed-Use Districts viii. Chapter 20.36 Industrial Districts ix. Chapter 20.37: Civic and Open Space Districts x. Chapter 20.38 Overlay Districts xi. Chapter 20.39: Use Provisions xii. Chapter 20.40: Site and Lot Dimensions xiii. Chapter 20.41: Site and Lot Development xiv. Chapter 20.54: Non-Conformities xv. Chapter 20.68: Accessory Dwelling Units xvi. Chapter 20.80 Subdivision – General Provisions xvii. Chapter 20. 82 Administration and Enforcement xviii. Chapter 20. 84 Boundary Line Adjustments xix. Chapter 20.86: Short Subdivisions xx. Chapter 20.88: Subdivisions – Preliminary Plats xxi. Chapter 20.90: Subdivisions – Final Plats xxii. Chapter 20.94: Binding Site Plans xxiii. Chapter 20.96: Vacation and Alteration of Final Plans and Short Plats xxiv. Chapter 20.98 Improvements xxv. Chapter 20.100 Development Standards – Subdivision Design Ordinance No. 030-20 Page 7 of 13 xxvi. Chapter 20.120 Development Standards General Provisions xxvii. Chapter 20.122: Building Elements xxviii. Chapter 20.124: Development Standards – Parking and Circulation xxix. Chapter 20.127: Design Standards xxx. Chapter 20.128: Landscaping xxxi. Chapter 20.129: Significant Trees xxxii. Chapter 20.139: Residential Design Standards xxxiii. Chapter 20.162: Critical Areas Regulations xxxiv. 20.164 Shoreline Master Program xxxv. Chapter 20.182: Impact Fees (c) A development agreement shall not modify any provision of the Port Orchard Municipal Code that is not identified in subsection (b) of this section. (d) A development agreement may modify the provisions of the Port Orchard Municipal 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, III or IV project permit application as defined in RCW 36.70B.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 36.70B 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. Ordinance No. 030-20 Page 8 of 13 (34)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. (45) 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. (56) 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. (67) 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. (78) Termination, and 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 Ordinance No. 030-20 Page 9 of 13 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 ten (10) years. No more than two (2) extensions of up to ten (10) years shall be granted. Extensions may not be granted unless an application for an extension is made no later than one hundred and eighty (180) days prior to the termination date in the development agreement or prior to the termination of any extension of a development agreement. 20.26.030 Application requirements. Any owner of real property may, personally or through an agent, apply complete application for a development agreement shall consist of by filing with the department of community development the following: (1) Name, address, telephone number and email 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; (2) Address, parcel number and legal description of the property proposed to be subject to the development agreement; (3) Recent title report confirming that the property identified in the application is owned by the applicant/property owner; (4) Identification of any application (project permit application, comprehensive plan amendment application, development regulation amendment application) that is related to the proposed development agreement; (5) SEPA checklist, if applicable; (6) Two sets of stamped envelopes, and a list of the same, labeled with the name and address of all current owners of real property, as shown in the records of the county assessor for the subject property, within 300 feet of each boundary of the subject property; (7) A copy of the county assessor’s map identifying the properties specified in the preceding subsection; Ordinance No. 030-20 Page 10 of 13 (86) A completed application form and the application fee established by the city for this purpose; and (97) Any other information requested by the community development director relevant to the processing of the development agreement. 20.26.040 Phasing. (1) 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. (2) 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 unless the development agreement is extended in accordance with POMC 20.25.020(8). (3) A development agreement for a phased development (such as a subdivision) shall include (in addition to all of the information in POMC 20.26.030), all of the following: (a) Identification of the phasing schedule; (b) Identification of the number of phases and all lots included in each phase; (c) Identification of the approximate dates for construction of public streets, public utilities and other improvements in each phase; (d) Identification of the approximate dates for commencement of development of each lot, lot sales and building occupancy; (e) 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; (f) Establishment of the deadline for the property owner to submit development applications, including building permit applications, for each phase; Ordinance No. 030-20 Page 11 of 13 (g) 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; (h) 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. 20.26.050 Processing procedures and appeals. (1) Development agreements are not “project permit applications” as defined in RCW 36.70B.020(4). Therefore, there is no deadline for processing a development agreement. (2) A development agreement must may be submitted for review in conjunction with a at least one land use and development permit for the underlying project. The development agreement application may be consolidated for processing with the underlying project permit application or other application for approval. Any development plan accompanying the development agreement shall be subject to the applicable project permit/approval application process set out in Title 20 of this code. The application shall not be deemed complete until a draft development agreement has been prepared and a development proposal conforming to the parameters of the development agreement and meeting all pertinent requirements has been submitted. If the development agreement is consolidated with a project permit application, the property owner must agree to waive the deadline in RCW 36.70B.080 and POMC 20.24.100 for issuance of a final decision on the underlying application, as well as the prohibition of no more than one open record hearing and one closed record hearing on the underlying project permit application in RCW 36.70B.060(3). (32) Public Notice and Public Hearing. (a) Notice of the public hearing shall be provided pursuant to POMC 20.22.070. (b) 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 shall be given to owners of real property located within 300 feet of any portion of the boundaries of such Ordinance No. 030-20 Page 12 of 13 adjacently located parcels of real property owned by the owner of the real property included in the development agreement. (c) The hearing on the development agreement shall be held pursuant to POMC 20.22.070, except that when the Development Agreement is processed as a legislative matter (i.e. not consolidated with a project permit), the City Council shall conduct the hearing itself and forgo a hearing and recommendation by the Planning Commission. Any requests associated with the project-specific development proposal requiring a public hearing by the hearing examiner shall be heard by the hearing examiner prior to City Council action on the development agreement. 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 after the public hearing. (d) Modifications to a development agreement shall be in writing, signed by the duly authorized representatives of the parties, be consistent with this chapter and, where considered substantive as determined by the director, follow the same procedures set forth in this chapter. (34) 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. A modification of a development agreement pursuant to 20.26.020(8) that is consolidated with a new or pending Type I, II, III, or IV project permit application may be appealed pursuant to Chapter 36.70C RCW. (45) 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. 20.26.060 Discretionary legislative action. The decision of the city council to approve or reject a request for a new development agreement, a modification to an existing development agreement, or grant an extension of an existing development agreement shall be a discretionary, legislative act and an exercise of the city's police power and contract authority. 20.26.070 Unauthorized fees prohibited. Ordinance No.030-20 Page 13 of 13 tlothine in this Cha or OeUications or t expresslv autnorl SECTION 3. Corrections. U pon 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 4. Severabil ity. lf any section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of this ordinance. SECTION 5. Effective Date. This ordinance shall be published in the official newspaper of the city and shall take full force and effect five (5) days after the date of publication. A summary of this ordinance in the form of the ordinance title may be published in lieu of publishing the ordinance in its entirety. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such passage this L3th day of October 2020. Robert Putaan u, Mayor ATTEST Brandy nearson, MMC, City Clerk APPROVED AS TO FORM SPONSORED BY: Charlotte A. Archer, City Attorney Scott Diener, Councilmember PUBLISHED: OCTOBER L6, 2020 EFFECTIVE DATE: OCTOBER 2L,20 o S R,1 EAL