Council may drop 'open space' requirement

After further review, the Bainbridge Island City Council’s land-use committee decided that “open space” by another name is just as open.

So rather than trying to adjust and buttress requirement for “open space” in new subdivisions, the committee will recommend dropping the requirements altogether – at least under the “open space” name – in favor of buffers, tree retention and protection of critical areas.

“There is a certain arbitrary nature to required set-asides,” said committee chair Michael Pollock, “and there was a question about whether we could legally require it. This is not to say we couldn’t, but you wouldn’t really know until a judge decided.”

Rather than risk the possible expense and uncertain outcome of litigation, the committee decided to adopt different means to the desired end.

“There are valid, scientific reasons for protecting critical areas like unstable slopes, wetlands and aquifer recharge areas,” Pollock said. “We think those are legally defensible ways to achieve something similar to an open-space requirement.”

Under current city ordinances, new subdivisions must set aside a percentage of their land as designated “open space.” The requirement ranges from a high of 80 percent for two-and-a-half-acre lots, down to 40 percent for higher-density areas.

Last July, the Washington Supreme Court ruled that similar requirements imposed by the city of Camas constituted an illegal tax. Set-asides could be justified, the court ruled, only to mitigate the specific impacts of the subdivision itself.

In response, the Bainbridge council imposed a moratorium on new subdivision applications, then set out to justify a percentage set-aside. A consultant determined that 35 percent of the island’s developed area is open space, so the land-use committee initially proposed requiring that or a similar percentage in all subdivisions.

But critics wondered aloud how any proportion could satisfy the court’s ruling.

“As I understood the Supreme Court case, I don’t see how you could ever justify a proportional requirement,” said developer Kelly Samson. “A high-density development creates a greater need for open space because it involves more people.”

Requiring a greater set-aside in higher-density areas was also problematic, because it would reduce densities, particularly in and around Winslow, where the higher-density zones are located.

That, in turn, would frustrate the goal of increasing densities around Winslow and reducing development pressures on outlying areas.

“Open space is a public good, but so is building to higher densities,” said committee member Debbie Vancil during debate on the issue. “That is what we say we want in the Winslow area.”

So at Pollock’s suggestion, the committee this week scrapped the set-aside requirement. The newest version of the subdivision ordinance would require a 50-foot perimeter buffer around each project, and some retention of “significant” trees, defined as those over 12 inches in diameter at breast height.

The committee plans to give the public several opportunities to comment on the proposal. The council will hold a public hearing at its next meeting Feb. 26, a workshop on March 5 and another hearing at its March 12 meeting.

The moratorium on subdivisions would be lifted or allowed to expire with adoption of the revised ordinance.

Developers would also have the option of using the city’s so-called “flexible lot” ordinance, which permits smaller lot sizes. But such developments would require a designation of 30 percent of the area as open space.

“Nobody is forced to go that route, but it is an available option,” Pollock said.

While Samson has some misgivings about the required buffer around smaller subdivisions, saying “it could make you feel like you’re in a hole,” he generally applauded the new direction.

“This is the best ordinance that we’ve seen in the last six months,” he said. “But I’m sorry it took so long. This is what some of us suggested six months ago, and it’s taken us this much time to get there.”

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