Builders challenge regulations
June 9, 2008 · Updated 3:13 PM
"Claiming to need a stable legal framework in which to operate, builders are challenging recent city council actions they say violate the Bainbridge Island Comprehensive Plan.Let's adopt regulations consistent with the comprehensive plan, then rely on them to be in place for five years, said Andy Mueller of Mueller Construction.The group claims that recent ordinances passed by the council conflict with the long-range plan. And one of the challenges has reached the stage of legal action. The Home Builders Association of Kitsap County, on behalf of its Bainbridge members, is challenging an ordinance passed in late June that revised the manner in which housing densities are computed on tracts containing wetlands.This is a massive downzoning of any potentially developable land that may have wetlands, said Art Castle, executive vice president of the Home Builders Association.The ordinance, which passed unanimously June 28, generally deletes wetland areas from the calculation of permissible building density. Previously, wetland area could be included in the calculation, so long as the permissible number of homes were grouped on non-wetland portions of the tract.To illustrate the effect of the change, the association petition cites the controversial Woodland Village subdivision on Ferncliff Avenue, a 9.4-acre tract of land with two acres of wetlands. The area is zoned for 2.9 homes per acre.As approved under the prior ordinance, the tract would contain 30 homes - 27 units of base density (9.4 acres multiplied by 2.9) plus three affordable units. Under the new ordinance, only 7.4 acres could be used to calculate the base density, so the development could contain only 21 base density homes (7.4 acres multiplied by 2.9) plus two affordable homes.The association is asking the Central Puget Sound Growth Management Hearings Board to find the ordinance invalid, claiming that it conflicts with the comprehensive plan and that it was adopted in violation of procedures set out in the state Growth Management Act.The challenges again highlight questions surrounding the interplay between a city's comprehensive plan and its ordinances. Comprehensive plans have long been considered guidelines that yield to ordinances in the case of a conflict. But the Growth Management Act reverses that hierarchy, some legal scholars maintain, and requires city ordinances to fall into line behind the comprehensive plan.Attorney Dennis Reynolds of the Seattle law firm of Williams, Kastner and Gibbs, representing the Home Builders Association, said the principle that ordinances must correspond to a comprehensive plan is well established.While the conformity concept may be laudable, it's easier said than done, according to Bainbridge City Council Chair Merrill Robison.The comp-plan says a lot of things, Robison said. And it's not entirely consistent.Other issues Mueller has raised with the city council, and which the association is studying for possible challenge, include the affordable-housing ordinance, the surcharge on building permits that supports the Housing Trust Fund and helps pay for affordable housing, and the zoned densities for close-in areas.The problem with the affordable-housing ordinance, Mueller said, is that the cost of providing affordable housing is placed only on local developers, rather than on the community at large.The ordinance in question requires any development of eight units or more to include at least 10 percent affordable units, priced at a level that someone making the Seattle area median income can afford. In return, the city allows more units to be built on the developer's parcel. The city does give you extra density, Mueller said, but it then requires you to build homes at a loss.While some builders might be able to avoid a loss on affordable homes, Mueller said he could not recover his costs on the two affordable units he is required to build at his Tiffany Meadows subdivision between Ferncliff Avenue and the Wing Point golf course.Of the permit surcharge, Mueller said he believes that by law, building permit charges are limited to recovering costs, and cannot be used to raise general-purpose revenue.The density issue pertains to areas served by city water and sewer connections.Much of that area is zoned for 2.9 units per acre, Mueller said. That isn't enough to allow the city to recover its costs, meaning that everybody else has to pay for sewer and water extension. We need densities of five units per acre to make it work out. Castle said the association is looking at those issues.Castle said the home builders would prefer to resolve all issues with the city through mediation, rather than by going to court, including the wetland-density question. Our preference is always to settle, Castle said, but it takes two to mediate. "