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Will moratorium be lifted by fall?

The Bainbridge City Council tonight will consider yet another extension of a year-long and increasingly unpopular moratorium on subdivisions.

And although a new draft ordinance on short plats and large-lot subdivisions may not be what the council wants, the chair of the Land Use Committe believes it can be passed within two months – and the moratorium lifted in that time frame.

“I think we are close to an agreement,” Councilman Michael Pollock said this week. “We just need to clarify with staff that open space (in new subdivisions) is not optional.”

The latest version of the ordinance would give property subdividers a number of options:

l They could set aside 30 percent of land area as open space, where uses would be tightly restricted;

l They could pay into a fund that the city would use to buy additional open space;

l They could use “cluster” designs, placing the homes on different lots in relatively close proximity, which, in turn, would create a larger area of contiguous, unused space, or;

l They could conduct their own open-space study and try to show that an amount of open space other than 30 percent would be required to mitigate the impact of their particular development.

Pollock said a provision making clustering an alternative to dedicated open space was an error.

“Staff has wanted to make open space an option, but we have legal opinions saying that kind of option is not necessary,” he said. “That needs to be changed, but I believe it can be changed relatively quickly.”

The ordinance calls for vegetative buffers around new subdivisions – larger along roads than along other boundaries – and reduces from nine to four the number of lots that can qualify for the somewhat streamlined short-plat process.

Developers who set aside an additional 15 percent of their land as open space could short plat as many as nine lots.

Pollock said he has received differing legal opinions on the provision for individual challenges to the 30 percent requirement, and that it may be pulled off the table.

The council continues to grapple with last July’s Washington Supreme Court decision striking down a requirement by the city of Camas that 30 percent of a given subdivision be dedicated as private open space.

The court said the requirement was a form of taxation, prohibited under Washington law except to offset the direct impact of the specific development.

Fearing that the ruling jeopardized Bainbridge Island’s own requirements – which called for between 40 and 80 percent of a subdivision to be dedicated as open space – the council imposed a moratorium on division of land last July.

Since then, Pollock’s committee has tried to determine what percentage could be justified by a study of community needs.

A consultant study showed that 30 percent of the island’s currently developed land is protected in the form of parks, environmentally critical areas or land otherwise exempt from development.

The moratorium was extended last August, again last December, and again this past March.

The latter extension came over increasingly angry protests from citizens wanting to subdivide and sell their property, and statements by some council members that the freeze had gone on too long.

The disconcerting thing, Pollock said, is the likelihood that whatever the council decides, the courts will likely have the final say.

“No matter what we do, we’ll probably get sued,” he said. “There is a minority that opposes any regulation. They have not been willing to participate in the process, but they threaten to sue whatever we do, and that is frustrating.”

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