Pre Annexation Zoning Feb 2011 Ver2

8/7/2019 Pre Annexation Zoning Feb 2011 Ver2

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Public hearing

DONUT HOLE PRE-ANNEXATIONZONING AND DEVELOPMENT

REGULATIONS



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History

2007 The County’s negotiations for the sale of property caused it to

begin a process to change the land use designation from rural tourban, as urban level densities were one of the reasonssupporting the sale of the property under the “unique

circumstances ordinance” The City objected to the County’s re-designation from rural to

urban because the rural designation, and it’s being locatedoutside the urban growth boundary meant the City had beenlegally unable to do any urban level planning for the

development of that site. The City asked the County to be abltto participate in urban level planning for land use and zoning



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History

2007 The City began submitting formal responses

to the County about it’s planning efforts for

the Donut Hole, arguing: The City will be the ultimate service provider once

the property is developed (police, public works)

Surrounding neighborhoods are zoned R-4 and R-6, and the County’s plans would allow for muchhigher density (45x that of the rural density)



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History

2007 The City strongly believed it should be the

beneficiary of sales tax and excise tax

revenue, which could only happen if the Cityannexed the property

The City supported the re-designation from

rural to urban, but wanted to be involved inplanning for the level of density



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History

2007 The City asked the County for a coordinated

planning effort

No other urban service providers had done anyplanning for urban development either: sewerdistrict, water district, fire district, school district,electric and gas utility providers



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History

2007 The City objected to the County’s issuance of a DNS.

The City stated its belief that re-designation of theland from rural to urban would have a “significant

environmental impact.” Specifically, no transportation impacts had been analyzed;

impacts on park and recreation facilities had not beenanalyzed, needs for urban services had not been analyzed, andthe site sits on a critical aquifer recharge area.

The City requested an interlocal agreement to givethe City co-lead agency status for environmentalreview under SEPA



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History

2007 The City’s formal comment letter to the County

objected to certain changes in County code thatwould allow a reduction in acreage for Urban Planned

Developments. This proposed change was solely toallow a UPD development on the Donut Holeproperty.

The City objected to the County’s plans to rezone the

property as R-8 zoning, and requested instead thatthe County rezone the property to R-4 until such timeas coordinated planning could occur



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History

2007 The City’s formal comment letter indicated its

belief that the County was ignoring its own

policies as set forth in the County-widePlanning Policies, and its Comprehensive Plan

Summary: in 2007 the City asked the County toengage in a joint planning effort for the site.



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History

2008 The City’s efforts to gain co-lead agency status with

the County for environmental review did not result inan interlocal agreement, despite meetings, and draftsthat were circulated.

The County began holding public hearings on itsComprehensive Plan amendments, including re-

designating the Donut Hole property from rural tourban, and rezoning the property



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History

2008 The City engaged in its own planning effort in

the Spring of 2008 because it’s efforts to

engage in joint planning with the County wereunproductive

The City hired R.W. Thorpe & Associates to

study and produce a feasibility report for theurbanization of the Donut Hole property



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History

2008 The Thorpe feasibility study was accepted by

the City Council in July, 2008, and a copy was

provided to the County Council during aCounty Council meeting that same month

The Thorpe study analyzed urbandevelopment under the County’s plans, and

also analyzed urban development as if the sitewere designated R-6 under city code



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History

2008 The Thorpe report was later used by the City

as a basis for “Alternative 2” of the subarea

plan for Summit Place (aka Donut Hole). Thesubarea plan was studied by the City’sPlanning Commission, and adopted by the

City Council in February, 2010.



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History

2008 The County’s plans to re-designate the land

from rural to urban required a

recommendation from the GMPC (GrowthManagement Planning Council)

The City successfully lobbied cities to object

to the County’s re-designation of the landwithout joint planning with Maple Valley



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History

2008 When the vote on the re-designation by the GMPC

came to the floor, Mayor Iddings was present totestify. City staff were there to meet with cityrepresentatives of the GMPC. City members of GMPCspoke against the County’s plans. The vote wasplaced on hold because the “No” vote would have

been the majority vote. During the next two weeks, intense negotiations

between the County and the City occurred.



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History

2008 The negotiations resolved the issues before

the GMPC, with an understanding that in

exchange for a “yes” vote by city members onthe GMPC, the County would engage in jointplanning with Maple Valley.



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History

2008 On October 2, 2008, the MOA (Memorandum of

Agreement) was signed by:

Maple Valley, County Executive Sims, and Brian Ross

(YarrowBay Holdings, prospective purchaser of the property)

The MOA obligated the County and the City to enter into joint planning for the Donut Hole site

The MOA specifically references the GMPC involvement in a

successful resolution of the stalemate



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History

2009 City staff met for many weeks with County

staff, and with the prospective purchaser to

draft a joint planning document, now referredto as the “Joint Plan.”

The MOA required that the joint planningdocument be approved by interlocal

agreement, requiring legislative action byboth the City Council and the County Council



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History

2009 In February, the County entered into a

Purchase and Sale Agreement with Summit

Place 156, LLC (aka YarrowBay Holdings) forthe sale of the Donut Hole property for $51million



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History

2009 City staff began working with the City

Planning Commission in the summer of 2009,

to take the next step required under the MOA - to adopt pre-annexation zoning for theDonut Hole



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History

2009 When it became apparent that the County

was not going to take action any time soon on

the ILA to adopt the Joint Plan, the Cityshifted its planning efforts:

City staff put aside pre-annexation zoning efforts,

and instead began focusing on adopting thesubarea plan for Summit Place. This was a duty of the City under the MOA



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History

2009 The subarea plan contains three “alternatives” for the

Donut Hole site:

Alternative 1: no change. The County’s road and gravel

mining operation continues

Alternative 2: urban development occurs at medium density,consistent with the 2008 R.W. Thorpe feasibility study

Alternative 3: higher density urban and commercial

development is allowed, but only if the County adopts theILA to adopt the Joint Plan



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History

2009 The City Planning Commission forwards its

recommendation on the subarea plan to the

City Council



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History

2010 The City Council considers, and holds a public

hearing on the Planning Commission’srecommendation for the subarea plan, and forvarious amendments to the ComprehensivePlan

The City Council adopts the subarea plan, and

other Comp Plan amendments in February2010.



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History

2010 In February, the prospective purchaser seeks

an amendment to the PSA; the amendment

allows the purchaser to have an extra year toengage in “feasibility” review before decidingwhether to close on the property

The PSA is amended



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History

2010 The amendment to the PSA between the County and

the purchaser, caused a need to amend the 2008MOA.

All three parties sign an amendment to the MOA inFebruary. The amendment means that neither the County or the

purchaser can submit land use development applications, orlegislative amendments during the “waiver period.” TheCounty’s waiver period has an expiration date of 2/20/12.The purchaser’s waiver period is until the property annexesto the City.



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History

2010 The County requests amendments to the ILA

to adopt the Joint Plan

The City negotiates with the County about thevarious amendments.

The City signs the ILA in June

The County also signs the ILA in June



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History

2010 After the ILA is in place, the City returns to its

efforts, first begun in the summer of 2009, to

draft pre-annexation zoning and developmentregulations for the Donut Hole.

This is a requirement under the MOA

The ILA addresses pre-annexation zoning as well,and sets a goal for annexation to occur byDecember, 2010



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History

2010 The City Planning Commission forwards its

recommendation on pre-annexation zoning to

the City Council on 12/15/10 The Planning Commission recommendation

includes a new land use zoning district “MasterPlanned Community”

The new zoning district would allow the site to be masterplanned. It also allows for the continuing operation of the County’s road and gravel mining operations



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History

2011 The City Council holds a public hearing on the

Planning Commission’s recommendations on

1/3/11. A second public hearing is required bylaw and is scheduled for 2/14/11.

The City Council continues to consider and

discuss the PC recommendations duringJanuary and early February



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Next steps

Adopt pre-annexation zoning for the site; adoptdevelopment regulations consistent with theadopted zoning

The ILA requires the City to adopt zoning anddevelopment regulations that are consistent withthe goals and policies of the Joint Plan (now alsoadopted into the Comprehensive Plan, in theform of a subarea plan) – in order to arrive at a

“Compliant Pre-annexation Zoning Ordinance”



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Next steps

Terms of the ILA The ILA is largely concerned with these

issues:

Establishing a time line to annex the property intothe City; and

Establishing a process for the City to work with theCounty to adopt pre-annexation zoning anddevelopment regulations that are consistent withthe Joint Plan



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Next steps

Terms of the ILA Once the City is ready to adopt pre-

annexation zoning and development regs, it

must: Send a copy of the ordinances to the County, at

least 15 days in advance of the City’s scheduledaction on the ordinances

The City complied with this requirement on 1/27/11



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Next Steps

Terms of the ILA If the County objects to the ordinance it must

provide a “Notice of Objection” to the City at

least 3 business days before the City’sscheduled action on the ordinances

The County objected on 2/7/11

The County’s ability to object to theordinances is limited



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Next Steps

Terms of the ILA If the County objects, it must:

Identify which part or aspects of the ordinance(s)are inconsistent with the Joint Plan

Provide a justification of the objection that cites tospecific language within the Joint Plan and withinthe ordinances that demonstrate how theordinances are inconsistent with the Joint Plan and

Propose amendment(s) to the ordinance(s) thatresolve the inconsistency(ies).



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Next Steps

Terms of the ILA Once the City receives a “Notice of Objection”

from the County, it can

Decide to include all the County’s proposedamendments to the ordinance(s). If it does this,the City has a “Compliant Pre-annexation ZoningOrdinance”

Alternatively, the City can decide to adopt differentamendments to its ordinances



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Next Steps

Terms of the ILA If the City decides not to adopt the County’s

proposed ordinances, and to adopt otheramendments, it must again give the Countynotice, and delay taking action on theordinances for 5 business days. The Countythen has three business days to provide

another Notice of Objection. The City provided a second notice to the County

on 2/11/11



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Next Steps

Terms of the ILA If the City adopts the pre-annexation zoning

ordinances, and also does not adopt the

County’s proposed amendments received witha “Notice of Objection,” then the City does nothave a “Compliant Pre-annexation Zoning

Ordinance” under the ILA.



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Next Steps

Terms of the ILA The City provided all the ordinances to the

County on January 27 – more than 15 days

prior to the 2/14 public hearing The County objected to the ordinances in a

letter dated February 7, signed by Kathy

Brown, Division Director, Facilities



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Next

Terms of the ILA The City Council directed revisions to three of

the ordinances on February 7

These changes caused the need to send anotherNotice to the County of the amendments, andcauses a need for the Council to delay action onthe ordinances for 5 business days. The County

has 3 business days to provide another Notice of Objection – due 2/17/11



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Next Steps

Terms of the ILA City staff recommends that Council open the

public hearing tonight, take testimony, and

continue the hearing to February 28 in orderto comply with the terms of the ILA



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Pre-annexation Zoning

Ordinance O-11-436 establishes “MasterPlanned Community” (MPC) as a newzoning district in the City

What is pre-annexation zoning? It is a zoning designation that is adopted in

advance of annexation of property, so that

once annexation occurs, there is zoningestablished for the property



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Pre-annexation Zoning

Because the City adopted the SubareaPlan for Summit Place, and Alternative 3of the Subarea Plan is the Joint Plan, and

because the County did not object to theSubarea Plan, the County must adoptzoning consistent with the Subarea Plan or

the City will have cause to file a petition tothe GMHB



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MPC Development Regulations

Ordinance O-11-439 would add a newchapter to Title 18 of the municipal code,Ch. 18.120, “Master Planned Community”

18.120 establishes the application processto master plan on the Donut Hole site.Under MPC zoning, master planning is not

required. If a developer wants to masterplan the site, however, it can do so.



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Ch. 18.120 If a developer wants to master plan the Donut Hole

site, it does so by applying for “Master PlannedCommunity Project Approval” (MPC Project Approval)

MPC Project Approval is a conceptual plan: It shows how streets will connect to streets outside the site and

what the general internal circulation will be for traffic;

It shows generally where trails, and open space will be located;



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Ch. 18.120 MPC Project Approval is a conceptual plan:

It will contain proposed sites or areas for any public facilities

It will contain the general location and areas, acreage, unit

counts, for residential housing and commercial buildings It will identify the approximate location of various easements

for utilities, and for park and ride facilities

It will identify any sensitive areas that are protected from

development



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Ch. 18.120 The conceptual plan, in order to allow

flexibility, will not contain a requirement for: A reliable depiction of development that shows

property lines, and local streets. It will not identify the precise location or

configuration of developments, uses, buildingtypes, signage, utilities or public improvements,landscape areas, open space and recreationareas/facilities.



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MPC Development regulations

Ch. 18.120 The MPC Project Approval goes to the Hearing

Examiner for approval as a Process 3 decision

The MPC Project Approval is not a buildingpermit, and does not authorize anyconstruction, or subdivision of land (this is a

key component involved in vesting)



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Ch. 18.120 The MPC Project Approval is valid for 10 years

Once the MPC Project Approval is granted, the

developer can get approvals for applicationsthat do allow construction or subdivision of land to occur. These types of permits are

called “Implementing Development Permits” (IDPs).



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Ch. 18.120 IDPs are such things as: applications for

preliminary plats; binding site plans, or design

review (commercial buildings) Each IDP application has its own review

process under City code

Each IDP, if approved, “vests” according tostate law and city code



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Ch. 18.120 What rights does an applicant get with MPC Project Approval?

Ability to achieve a greater level of development flexibility, intensityand density than any other zoning district in the City.

Greater flexibility on zoning setbacks, building heights, landscapeareas, tree canopy coverage, impervious surface standards, and

similar requirements. Greater flexibility to choose the location, configuration and types of

residential, commercial and public uses than any other zoningdistrict in the City.

Ability to achieve even higher densities through the provision of amenities and use of transferable development rights (TDR’s)

Ability to achieve regulatory assurances to certain aspects of thecode that are critical to the overall conceptual plan, through adevelopment agreement.



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Terms of the ILA

The County’s Notice of Objection

The County has essentially made two objections tothe City’s pre-annexation zoning ordinances:

The County believes the Joint Plan requires the City to grant

“vested rights” to an applicant as part of MPC Project Approval. Since Ch. 18.120 does not grant vested rights, theCounty believes this ordinance is inconsistent with the JointPlan

The County believes the City is required to adopt a TDR program and since it has not, Ch. 18.120 is inconsistent withthe Joint Plan



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Terms of the ILA

Ch. 18.120 The County’s Notice of Objection was

provided by Kathy Brown, Division Director,

County Facilities Division on 2/7/11 The letter is included in the materials

provided to Council for tonight’s public

hearing, P. 187



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Terms of the ILA

Ch. 18.120 Since the Joint Plan’s goals and policies were

adopted into Alternative 3 of the subarea

plan, word for word, the County had 60 daysfrom 2/1/10 to challenge the subarea plan tothe Growth Management Hearings Board, anddid not do so



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Terms of the ILA

Ch. 18. 120 The City’s response letter also pointed out

that nothing in the Joint Plan requires the City

to develop a TDR program



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Vested Rights

What are vested rights? In Washington State, “vesting” occurs when

an applicant submits a complete applicationfor a building permit or for a plat . RCW

19.27.095; 58.17.033. Washington courts have consistently held that

only applications for building permits gain

vested rights upon submission of a completeapplication.



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Vested Rights

What are vested rights? Each jurisdiction’s code may specify what

constitutes a “complete” application for a

building permit.

How does this work in reality?

Say a developer submits an application for a35 lot preliminary plat on March 1st.



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Vested Rights

What are vested rights? If the City approves the preliminary plat

application on June 15, the rights that “vest”

date back to the date the application wasdetermined to be complete.

If the application was determined to be

complete under city code on March 15, thenthe rights that vest, vest as of March 15th



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Vested Rights

What are vested rights? What does an applicant get with vested rights?

Under Washington law, an applicant gets the right to developunder the zoning and other land use regulations in effect asof the date of a complete application. In the example, the

vesting date was March 15th. In the example, if the City changes its zoning code on April

1st, it won’t affect the developer’s project because it wasvested as of March 15th.

In the example, if the City adopted new building heightregulations on April 1st, those won’t affect the developer’sproject because it was vested as of March 15th



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Vested Rights

What are vested rights? Washington State is one of only about 4

states in the country that grant vested rights

so early in the development process Vested rights are desireable to a developer

because it wishes to have certainty about the

codes it will be developing under



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Vested Rights

What are vested rights? Vested rights are less desireable for a City, for several

reasons: Citizens may want the City Council to change the zoning to

allow or prevent a certain type of development – to promoteeconomic development for example, or to downzone topreserve significant natural features of the environment

Science changes as knowledge improves, causing the needto amend regulations such as those pertaining to the designof storm water ponds

Members of the City Council may desire to amend

development regulations to prevent unintendedconsequences when those come to light



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Vested Rights

What are vested rights? For a City to be prevented from adopting new

zoning, or new development regulations, or

from amending existing regulations is notnecessarily in the best interests of the public



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Vested Rights

Vested Rights and the MPC Code, 18.120 Recall from earlier in the presentation that

MPC Project Approval does not allow anyconstruction to occur, or any subdivision of

land. Therefore, it is not a “building permit” and state law does not require that the codegrant any vested rights.

However, under the MPC code the developeris entirely in control of when vesting occurs



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Vested Rights

Vested Rights and the MPC Code, 18.120 The developer is entirely in control of what

vests, and when because the developer gets

to decide when it wants to submitImplementing Development Permits (IDPs)

The developer can submit one IDP in year

one of the MPC Project approval, or cansubmit all IDPs in year one.



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Vested Rights

Vested rights and the MPC code, 18.120

The developer can submit one IDP in year two of theMPC Project Approval, and submit all the remainingIDP’s in year 9.

Any possible combination can be imagined here, butthe point is: whatever type of IDP is submitted by adeveloper, that IDP vests when the application isdetermined to be complete

The earlier the developer submits each IDP, theearlier it can obtain vested rights.



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Vested Rights

Vested rights and the MPC code, 18.120 Example: MPC Project Approval occurs June

1, 2012

Developer submits all IDPs on March 1, 2013. The IDPs are determined to be complete on

March 15, 2013.

The IDPs are approved November 1, 2013. All IDPs are vested as of March 15, 2013.



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Vested Rights

Vested rights and the MPC code, 18.120 If one of these IDPs was for a 150 lot

preliminary plat, the preliminary plat would bevested to 3/15/2020.

If the preliminary plat proceeds to final platapproval, the final plat is vested to 3/15/2027

This is 14 years of vested rights, during which

any changes to zoning or developmentregulations would have no effect



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Terms of the ILA The City received the County’s objection to sections

of the pre-annexation zoning ordinances on Feb. 7. As previously stated, staff disagrees that there isanything in the Joint Plan (or the Subarea Plan which

adopted the Joint Plan), that addresses vested rights.Why does the Joint Plan not mention vesting? It would never be a part of a comprehensive plan document

to establish vested rights for a development project A planning document like the Joint Plan and Subarea Plan

are planning guidelines for land use, housing, public utilities,etc., meant to guide the adoption of zoning and otherregulations



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Terms of the ILA

There is nothing in the Joint Plan that requiresthe City to adopt a TDR Program

The Joint Plan requires that the City accept upto 200 TDRs, and the MPC code does allow

for that



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Terms of the ILA

It is essentially a policy decision for the City Councilas to whether it wishes to grant vested rights to MPCProject Approval.

Staff does not believe the County’s objectionspertaining to a TDR program have support within thegoals or policies of the Joint Plan.

The Planning Commission considered the vestingissue and did not recommend that MPC Project Approval grant vested rights



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Terms of the ILA City staff continued meeting with County staff after

the PC’s recommendations, and proposed edits to theMPC code, to create an opportunity for a developer toobtain a development agreement with four

guaranteed terms The proposed edits grant greater certainty but there

is less flexibility, so the developer can choose what ismost important: certainty or flexibility

Both the MOA and the ILA had language pertaining tothe need for some flexibility for a developer



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Terms of the ILA If the City does not adopt the County’s

proposed amendments, and instead adoptsthe MPC regulations as currently written, the

Joint Plan will be effective until July 1, 2024. It is not known if the County will continue to

cooperate with annexation of the property if

the City has not adopted a “Compliant Pre-annexation zoning ordinance”



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Terms of the Purchase and Sale Agreement The County’s PSA with the prospective

purchaser requires that the purchaser close

on the property by Feb. 20 of this year If the prospective purchaser does not close on

the property the County will have to decide

whether to market the property as surplus ata public auction



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If the County chooses not to cooperatetoward annexation, the County will haveto adopt comprehensive plan amendments

and zoning amendments that areconsistent with the City’s adopted SubareaPlan for Summit Place, or face a legal

challenge from the City to the GMHB



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Summary

The City asked for an ability to engage in joint planning with the County, beginningin 2007

The City has been engaged in that effortsince the fall of 2008, after executing theMOA



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Summary

The City has carried out all its obligationsunder the MOA and the ILA, even thoughsome goal deadlines were not met on time The City adopted the Joint Plan

The City amended its Comp Plan by adoptingthe Subarea Plan for Summit Place

The City has drafted pre-annexation zoning

The city has drafted regulations to implementpre-annexation zoning



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Summary

The impasse over vested rights is a policyissue, not governed or guided by any goalor policy of the Joint Plan, the Subarea

Plan for Summit Place, King CountyCounty-wide Planning Policies, or theCounty’s Comprehensive Plan.



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Summary

The County has another opportunity toobject to the changes directed by the CityCouncil on February 7 – the deadline is

2/17/11 Staff recommends the Council begin

accepting public testimony tonight, and

continue the public hearing to Feb. 28



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Summary

Those who wish to testify tonight, can doso, or they can wait until the date for thecontinued public hearing, but there will

only be one opportunity for each person’stestimony. Those wishing to testify do notget more than one opportunity to do so.



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Questions?

Pre Annexation Zoning Feb 2011 Ver2

Documents

Transcript of Pre Annexation Zoning Feb 2011 Ver2