Bainbridge Island faces lawsuit over latest development moratorium

The company that wants to build a self-storage facility on Day Road has filed a lawsuit against the city of Bainbridge Island, claiming the city has unlawfully adopted a moratorium that has stopped its development plans.

The lawsuit was filed in Kitsap County Superior Court Dec. 16 by Urban Bainbridge, and the firm’s attorney, Duana T. Kolouskova.

The lawsuit follows the adoption of a temporary moratorium by the city council in November that prohibits all applications for self-storage projects on the island.

The six-month moratorium was added to the council’s Nov. 26 agenda without notice to the public or a public hearing, and was passed on a 5-2 vote, with Councilman Matthew Tirman and then-Councilwoman Sarah Blossom voting “no.” (The council subsequently approved a public hearing on the moratorium for Tuesday, Jan. 14.)

Urban Bainbridge said it received an email from the city’s planning department the day following November’s moratorium vote that told the firm its project was not “vested” under the previous development regulations.

That was different than what the company had been told previous times by city officials, Urban Storage claimed in its lawsuit.

“The city’s refusal to now accept and process further application materials from [Urban Bainbridge] on the theory that its application was incomplete and not vested was arbitrary and capricious, illegal, in excess of the city’s authority, and intended sole[y to prevent [Urban Bainbridge] from completing its vested application prior to the effective date of the city’s new moratorium ordinance,” states the company’s lawsuit

The decision to stop the self-storage facility via a moratorium, the lawsuit adds, “has caused financial damage” to the company.

Lack of evidence

Urban Storage also criticized the reasons the city adopted the ordinance, claiming, “the city made little to no effort to verify the findings and conclusions in the moratorium ordinance.”

In the moratorium ordinance, the city council said it has “significant concerns” whether self-storage facilities fit the vision and goals of the city’s comprehensive plan, and also noted that the plan encourages the promotion of manufacturing and business/industrial employment “as an important source of family wage jobs on Bainbridge.” The moratorium also said: “The city council has significant concerns regarding whether self-service storage facilities create family wage jobs as compared to other possible permitted uses” within the business/industrial zone.

In its lawsuit, Urban Storage said the city has not given findings or conclusions that back up the reasons offered for the moratorium in the ordinance that put the building ban in place.

“The findings and conclusions are not supported by the evidence,” the lawsuit states.

“There is no emergency justifying the moratorium. The city has known about [Urban Bainbridge’s] self-storage project for over 3.5 years and has repeatedly assured [the company] the project was vested,” the lawsuit added.

Years in process

According to documents filed in the lawsuit, Urban Bainbridge said it hired architects in early 2016 and had submitted its first pre-application submittal for the self-storage facility in April 2016.

The company said it was told time and again by city planning officials that its project was vested and could proceed.

Urban Bainbridge noted that Bainbridge passed a moratorium in January 2018 on all development on properties zoned for business industrial on the island — which included Urban Bainbridge’s land on Day Road — but said that its project had already been “vested” and untouched by the moratorium because the pre-application process for the project had been completed.

“On June 26, 2018, a city planner emailed [Urban Storage] and [Urban Bainbridge’s] architects stating that the self-storage project is vested and not subject to the first temporary moratorium prohibiting all development in the business industrial zone,” the lawsuit recalled.

Urban Storage officials also noted that they submitted a pre-application package to the city in July 2018 that included a preliminary site plan, preliminary floor plans, existing site conditions plan, a geotechnical engineering report, a boundary and tree survey, a topographic survey, and a tree assessment report.

More meetings with city officials followed, the company said in its lawsuit, as did a confirmation from the city that the project was vested.

Urban Storage, however, said it was told in February 2019 that changes had been made in the city’s land-use process, but when the company asked for a waiver on the new land-use steps, it was told it needed to have more meetings with city officials, including meetings with the city’s Design Review Board.

The company said it was told in November its project had to go back again to the Design Review Board because new design standards/guidelines had been adopted.

Urban Storage was also told, it said, that its project wasn’t vested under the previous development regulations because it had not yet submitted a land-use application.

The next day, the council adopted the moratorium.

The day following the moratorium vote, Urban Storage said it received an email from the planning department that said it was “not vested under the new temporary moratorium.”

Officials with Urban Storage said its project should move forward.

The company’s attorney pointed to a Washington Supreme Court case from 1994, Friends of the Law v. King County, that said local governments “may not cause the vesting of the [developer’s] application to be contingent on future events or decisions, nor make the application process so odious that completion is nearly impossible.”

The city’s application process, Urban Storage added, was “nearly impossible to complete,” and designed to delay the company from completion before the moratorium was put in place, the lawsuit added.

“The city’s rules, written and unwritten, as a necessary component of a complete development permit application, are vague and ambiguous, and nearly impossible to complete except by continuously providing information and attending more meetings, in hopes that more information and meetings might not be requested,” the lawsuit said.

Moratorium aftermath

When notified the next day of the council’s vote on the moratorium, Travis Ameche, Urban Bainbridge’s project coordinator for its Day Road facility, quickly became concerned about the ban and its impact on the company’s plans, according to records obtained by the Review via a public records request.

Other officials with the development project were also worried.

In an email to the city planner assigned to the project, Chris Finch, an architect from Magellan Architects who was hired by Urban Bainbridge, asked for the reasoning behind the moratorium.

“Is our project the only one affected by this or were there other self-storage projects in development as well?” Finch asked.

Kelly Tayara, a senior planner for the city who has been working on the project, told Ameche and Finch that she had not yet been sent the moratorium ordinance that had been signed by the council, or other relevant information.

In a following email, Tayara said there weren’t any other storage facilities in the city’s development pipeline.

Ameche responded: “This looks like we are being singled out here.”

The Bainbridge council has not met since the lawsuit was filed.

At its meeting this week, the council will hold a closed-to-the-public executive session to talk with its attorneys on “matters relating to litigation or potential litigation.”

City Attorney Joe Levan did not immediately respond Monday for a request for comment from the Review.

According to documents filed in Kitsap County Superior Court, the city will use outside attorneys to defend the city in the case.

The city will be represented by James Haney and Katherine Hambley of the Seattle law firm of Ogden Murphy Wallace.

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