Council puts subdivisions on hold

In the wake of a state Supreme Court decision striking down one city’s open-space requirements, the Bainbridge Island City Council Wednesday unanimously voted to impose a moratorium on subdivision applications until it can determine how to deal with the new ruling.

The moratorium prevents any further work on all applications, including short-plat applications, that are not deemed “complete” as of this coming Monday. The moratorium will last until Dec. 31 unless repealed sooner. A public hearing has been scheduled for Aug. 28.

Five subdivisions and 19 short-plat applications already in the works are not affected by the moratorium, officials said.

“This seemed like a fair and reasonable thing to do,” said city council chair Michael Pollock. “We can document why we need open space.”

The Washington Supreme Court ruled two weeks ago that the city of Camas could not require 30 percent of a subdivision to be set aside as open space. The court said that the requirement constituted an indirect form of taxation on development.

State law prohibits taxing development except where necessary to offset the burdens imposed by that specific development. The city of Camas had not sufficiently justified its 30 percent setaside requirement, the court said.

Bainbridge Island officials think they can justify a similar local ordinance, which requires a certain percentage of land in each subdivision be set aside as open space. The percentage depends on the underlying zoning, ranging from 80 percent where the zoning requires 2.5 acres for each home to 40 percent where the zoning allows two or more homes per acre.

The open-space requirement does not apply to high-density zoning areas, most of which are in the downtown Winslow core.

City Attorney Rod Kaseguma said he believes the court ruling still allows percentage open-space requirements if they are backed by sufficient evidence.

“The Supreme Court has not told us that we can’t have an open-space ordinance supported by evidence,” he said. “The city will gather evidence supporting the open-space setasides in the ordinance as well as for individual applications.”

Mayor Darlene Kordonowy, who worked extensively on the Comprehensive Plan and served for seven years on the planning commission, thinks the necessary evidence is available.

“If you go to the records – the Comprehensive Plan and various city council deliberations – I believe we can establish the connection between subdivisions and our requirements,” Mayor Darlene Kordonowy said. “We believe the record is there, but hasn’t been made explicit.”

Kaseguma said more evidence can be developed in the form of expert testimony about the importance of open space to things like psychological health, wildlife and slope stability.

Developer Kelly Samson, who has suggested he might sue the city if it continues to apply an 80 percent open-space requirement to his large-lot subdivision in the south end of the island, says the issue isn’t a matter of building and not building.

“We are limited to a maximum lot coverage of 10 percent, and the court ruling doesn’t change that,” he said. “There wouldn’t be any more building if we got rid of the open-space ordinance.”

Warren said the value of the ordinance is in the control it gives to the city.

“Without the ordinance, we wouldn’t have management plans to let us know what is going to happen there, and we would have less control over things like vegetation,” she said.

Samson agrees.

“This is not about open space,” he said. “It’s about freedom. Land is worth more if the owner can decide for himself where he wants to build his barn.”

If the City Council thinks the control issue is insignificant, there’s an easy way for them to show it, he said.

“Let them dedicate 80 percent of their own land as open space. It it’s a good idea for me, it’s a good idea for them.”

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