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City sued over new subdivision rules

As he promised during final council deliberations, island builder Andy Mueller filed suit this week to overturn the city’s new subdivision ordinance.

Mueller contends that requirements for open space and buffers violate state law and the federal constitution. The suit does not seek monetary relief, but asks the court to strike down those requirements.

“(A) generic set-aside that is based upon development in general, and not the specific impacts of a specific development constitutes an illegal tax, fee or charge on development of land in violation of the general laws of the state,” says the complaint, filed by attorneys Dennis Reynolds and Tracy Shallbetter in Kitsap County Superior Court.

“This is disappointing,” said City Councilman Michael Pollock, chair of the land use committee that hammered out the ordinance. “I was hoping we had come up with something that everyone could live with.”

The ordinance, passed by the council Sept. 10 after a 14-month moratorium on subdivision applications, requires subdividers to set aside 30 percent of the land as privately held open space, pay an as-yet unspecified fee in lieu of a set-aside, or cluster homes on the property.

The ordinance was drafted after the Washington Supreme Court struck down a city of Camas requirement for 30 percent open space, ruling that it was an indirect tax on development forbidden by state law.

Fearing that the court ruling could jeopardize Bainbridge’s open-space requirements – which ranged from 40 percent to 80 percent, depending on zoning – the council put a freeze on applications while it recrafted its ordinance.

The council settled on a blanket 30 percent requirement after a consultant’s study showed that roughly that percentage of the island is open land of one sort or another.

But that study does nothing more than explain the reasoning behind a blanket requirement, which state law still forbids, according to the lawsuit.

Pollock said that argument was taken into consideration by attorneys who reviewed the ordinance for the city. “They are pretty comfortable with what we did,” he said, “but you never know what can happen in court.”

The complaint also takes issue with a requirement that the developer submit an open-space management plan that promises, among other things, to ensure the survival of plants, remove invasive species and replace significant trees that may be diseased or die.

At the last public hearing on the proposed ordinance, Mueller invited the council to pass the ordinance, but said he would sue.

“The city was continuing to extend the moratorium, but they were clearly going down the path of passing an ordinance with the open-space requirement,” he said. “I’ve read the Camas decision, and I think the ordinance conflicts with it, and this is how we find out. Somebody had to ask the question.”

Opponents of the ordinance had argued that because of zoning limitations on density and limits on lot coverage, doing away with the open-space requirement would make little practical difference – an argument repeated in the lawsuit.

Asked why the reverse is not also true, Mueller said the problem is buyer perception.

“The lots are getting smaller and smaller, and I’m starting to run into buyer resistance,” he said.

“People in an R-2 (two homes per acre) zone think they’re getting half an acre, but with the open space and buffer requirements, they get less than half of that. This is getting awfully close to being a taking of property.”

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