Chapter 20.26
DEVELOPMENT APPROVAL – DEVELOPMENT AGREEMENTS
Sections:
20.26.010 Purpose and authority.
20.26.020 Form of agreement, effect and general provisions.
20.26.030 Application requirements.
20.26.050 Processing procedures and appeals.
20.26.060 Discretionary legislative action.
20.26.070 Unauthorized fees prohibited.
20.26.010 Purpose and authority.
The purpose of this chapter is to authorize the use of development agreements, consistent with RCW 36.70B.170 through 36.70B.210. The city may, but under no circumstances is required to, enter into a development agreement with a person having ownership or control of real property within the city. The development agreement may address such project elements as those set forth herein, pursuant to RCW 36.70B.170B(3). The development agreement shall be consistent with the applicable development regulations of the city. The consideration provided by the property owner for the city’s decision to enter into the development agreement may vary, depending on the benefit the development agreement will provide to the city and/or the public in general. (Ord. 030-20 § 3; Ord. 019-17 § 18 (Exh. 1)).
20.26.020 Form of agreement, effect and general provisions.
(1) Form. A development agreement shall set forth the development standards and other provisions that apply to and govern and vest the development, use, and mitigation of the development of the real property for the duration specified in the agreement.
(a) For the purposes of this chapter, “development standards” may include, but are not limited to:
(i) Project elements such as residential densities, nonresidential densities and intensities or building sizes;
(ii) The amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of state law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or dedications;
(iii) Mitigation measures, development conditions, and other requirements under Chapter 43.21C RCW;
(iv) Design standards such as maximum heights, setbacks, landscaping, and other development features;
(v) Affordable housing;
(vi) Parks and open space preservation;
(vii) Phasing;
(viii) Review procedures and standards for implementing decisions;
(ix) A build-out or vesting period for applicable standards; and
(x) Any other development requirement or procedure deemed appropriate by the city council.
(b) In order to encourage innovative land use management and provide flexibility to achieve public benefits, a development agreement adopted pursuant to this chapter may impose development standards that differ from the following development regulations of this code; provided, that any development standards imposed by the development agreement shall be consistent with the comprehensive plan:
(i) Chapter 20.08 POMC, Vesting;
(ii) Chapter 20.12 POMC, Definitions;
(iii) Chapter 20.30 POMC, Introduction to Zoning, Land Uses, and Building Types;
(iv) Chapter 20.32 POMC, Building Types;
(v) Chapter 20.33 POMC, Greenbelt District;
(vi) Chapter 20.34 POMC, Residential Districts;
(vii) Chapter 20.35 POMC, Commercial and Mixed Use Districts;
(viii) Chapter 20.36 POMC, Industrial Districts;
(ix) Chapter 20.37 POMC, Civic and Open Space Districts;
(x) Chapter 20.38 POMC, Overlay Districts;
(xi) Chapter 20.39 POMC, Use Provisions;
(xii) Chapter 20.40 POMC, Site and Lot Dimensions;
(xiii) Chapter 20.41 POMC, Transfer of Development Rights Program;
(xiv) Chapter 20.54 POMC, Nonconformities;
(xv) Chapter 20.68 POMC, Accessory Dwelling Units;
(xvi) Chapter 20.80 POMC, Subdivisions – General Provisions;
(xvii) Chapter 20. 82 POMC, Administration and Enforcement;
(xviii) Chapter 20.84 POMC, Boundary Line Adjustments;
(xix) Chapter 20.86 POMC, Short Subdivisions;
(xx) Chapter 20.88 POMC, Subdivisions – Preliminary Plats;
(xxi) Chapter 20.90 POMC, Subdivisions – Final Plats;
(xxii) Chapter 20.94 POMC, Binding Site Plans;
(xxiii) Chapter 20.96 POMC, Vacation and Alteration of Final Plans and Short Plats;
(xxiv) Chapter 20.98 POMC, Improvements;
(xxv) Chapter 20.100 POMC, Development Standards – Subdivision Design;
(xxvi) Chapter 20.120 POMC, Development Standards – General Provisions;
(xxvii) Chapter 20.122 POMC, Building Elements;
(xxviii) Chapter 20.124 POMC, Development Standards – Parking and Circulation;
(xxix) Chapter 20.127 POMC, Design Standards;
(xxx) Chapter 20.128 POMC, Landscaping;
(xxxi) Chapter 20.129 POMC, Significant Trees;
(xxxii) Chapter 20.132 POMC, Sign Code;
(xxxiii) Chapter 20.139 POMC, Residential Design Standards;
(xxxiv) Chapter 20.162 POMC, Critical Areas Regulations;
(xxxv) Chapter 20.164 POMC, Shoreline Master Program;
(xxxvi) Chapter 20.182 POMC, Impact Fees.
(c) A development agreement shall not modify any provision of this code that is not identified in subsection (1)(b) of this section.
(d) A development agreement may modify the provisions of this code only if the city council determines that the requested modifications are necessary to provide flexibility to achieve public benefits and provide superior outcomes than those that would result from strict compliance with the other applicable development standards.
(e) Any approved development standards that differ from those other applicable development standards shall not require any further zoning reclassification, variance from city standards or other city approval apart from development agreement approval.
(f) Subsequently adopted standards which differ from those in the development agreement shall apply to the subject site where necessary to address a serious threat to public health and safety or where the development agreement specifies a time period or phase after which certain identified standards may be modified. Building permit applications shall be subject to the building and construction codes in effect when the building permit application is deemed complete.
(2) Decision Type. Development agreements are a Type V action and shall be reviewed and approved pursuant to the procedures in Chapter 20.22 POMC and this chapter, except that if the development agreement is consolidated with a new or pending Type I, II, III or IV project permit application as defined in RCW 36.70B.020, the city council’s decision to approve, deny, or modify the development agreement may be appealed pursuant to Chapter 36.70C RCW.
(3) Effect. Development agreements are not project permit applications and are not subject to the permit processing procedures in Chapter 36.70B RCW or Chapter 20.24 POMC. A development agreement shall constitute a binding contract between the city and the property owner and the subsequent owners of any later-acquired interests in the property identified in the development agreement. A development agreement governs the project identified in the development agreement during the term of the development agreement, or for all or that part of the build-out period specified in the development agreement, and may not be subject to an amendment to a zoning ordinance or development standard adopted after the effective date of the agreement, except as set forth in this chapter. A permit or approval issued/granted by the city after execution of a valid development agreement must be consistent with the development agreement.
(4) Limitations.
(a) A development agreement shall be limited to a 20-year term if any provision of the agreement requires the city to:
(i) Refrain from exercising any authority that it would have otherwise been able to exercise in the absence of the development agreement;
(ii) Defer application to the subject property of any newly adopted development regulations that would otherwise apply to the property identified in the agreement; or
(iii) Allow vesting beyond the applicable deadlines for a phased development.
(b) The development agreement shall also contain a proviso that the city may, without incurring any liability, engage in action that would otherwise be a breach if the city makes a determination on the record that the action is necessary to avoid a serious threat to public health and safety, or if the action is required by federal or state law.
(c) The full costs of drafting and processing the development agreement shall be reimbursed by the owner or applicant prior to final city council action on the agreement to the extent such costs exceed the initial application fee.
(5) Developer’s Compliance. The development agreement shall include a clause stating that the city’s duties under the agreement are expressly conditioned upon the property owner’s substantial compliance with each and every term, condition, provision and/or covenant in the development agreement, all applicable federal, state, and local laws and regulations and the property owner’s obligations as identified in any approval or project permit for the property identified in the development agreement.
(6) No Third Party Rights. Except as otherwise provided in the development agreement, the development agreement shall create no rights enforceable by any party who/which is not a party to the development agreement.
(7) Liability. The development agreement shall include a clause providing that any breach of the development agreement by the city shall give right only to damages under state contract law and shall not give rise to any liability under Chapter 64.40 RCW, the Fifth and Fourteenth Amendments to the U.S. Constitution, or similar state constitutional provisions.
(8) Termination, Modification and Extension. Every development agreement shall have an identified, specific termination date. Upon termination, any further development of the property shall conform to the development regulations applicable to the property at the time of permit application. The city shall not modify any development agreement by extending the termination date unless the city council makes legislative findings that the additional benefits to the city provided by the developer in exchange for such extension of the development agreement outweigh the impacts from the development authorized by the extension. In no case shall an extension include the extension of provisions that are inconsistent with state or federal law at the time of such extension. Any request for a modification shall be consistent with the city’s development regulations applicable to the property at the time of the request, not the original execution date of the development agreement. Any extensions granted shall be for no more than a length of 10 years. No more than two extensions of up to 10 years shall be granted. Extensions may not be granted unless an application for an extension is made no later than 180 days prior to the termination date in the development agreement or prior to the termination of any extension of a development agreement. (Ord. 010-23 § 2; Ord. 030-20 § 3; Ord. 019-17 § 18 (Exh. 1)).
20.26.030 Application requirements.
Any owner of real property may, personally or through an agent, apply for a development agreement by filing with the department of community development the following:
(1) Name, address, telephone number and email address (if any) of the property owner. If the applicant is not the property owner, the applicant must submit a verified statement from the property owner that the applicant has the property owner’s permission to submit the application;
(2) Address, parcel number and legal description of the property proposed to be subject to the development agreement;
(3) Recent title report confirming that the property identified in the application is owned by the applicant/property owner;
(4) Identification of any application (project permit application, comprehensive plan amendment application, development regulation amendment application) that is related to the proposed development agreement;
(5) SEPA checklist, if applicable;
(6) Two sets of stamped envelopes, and a list of the same, labeled with the name and address of all current owners of real property, as shown in the records of the county assessor for the subject property, within 300 feet of each boundary of the subject property;
(7) A copy of the county assessor’s map identifying the properties specified in the preceding subsection;
(8) A completed application form and the application fee established by the city for this purpose; and
(9) Any other information requested by the community development director relevant to the processing of the development agreement. (Ord. 030-20 § 3; Ord. 019-17 § 18 (Exh. 1)).
20.26.040 Phasing.
(1) In order to phase a project to extend the vested rights associated with an underlying project permit application, a development agreement is required. This ensures the availability of public facilities and services to all of the property in the identified individual phases, allows tracking of the available capacity of public facilities and utilities during each phase of construction, and with the extension of the vested rights associated with the project, provides certainty to the developer in the subsequent development approval process.
(2) The deadlines in the city’s code relating to each type of project permit application must be consulted to establish the baseline vesting period. The city is not required to extend the vesting period. If the city decides to do so through a development agreement, it must be in exchange for the property owner’s provision of corresponding benefits to the city in the form of, for example, contributions to public facilities and amenities over and above what would normally be required. In any event, the city shall not allow vesting to extend beyond the established 20-year period after approval of the project permit application unless the development agreement is extended in accordance with POMC 20.26.020(8).
(3) A development agreement for a phased development (such as a subdivision) shall include (in addition to all of the information in POMC 20.26.030), all of the following:
(a) Identification of the phasing schedule;
(b) Identification of the number of phases and all lots included in each phase;
(c) Identification of the approximate dates for construction of public streets, public utilities and other improvements in each phase;
(d) Identification of the approximate dates for commencement of development of each lot, lot sales and building occupancy;
(e) Identification of the benefits that the property owner will provide to the city in exchange for permission to phase the development according to the proposed schedule;
(f) Establishment of the deadline for the property owner to submit development applications, including building permit applications, for each phase;
(g) A description of the manner in which each phase is designed such that all site requirements are satisfied independently of phases yet to be given final approval and constructed;
(h) A description of the manner in which the property owner will ensure that adequate public facilities are available when the impact of development occurs. The property owner shall acknowledge in the development agreement that if the demand for public facilities or services needed to accommodate a subsequent development phase increases following the issuance of a development permit for a prior phase in the approval process, or if public facilities or services included in a concurrency or SEPA determination are not constructed as scheduled in the city’s capital facilities plan, final development approval may have to be delayed for future phases pending the achievement of the adopted levels of service. (Ord. 030-20 § 3; Ord. 019-17 § 18 (Exh. 1)).
20.26.050 Processing procedures and appeals.
(1) Development agreements are not “project permit applications” as defined in RCW 36.70B.020(4). Therefore, there is no deadline for processing a development agreement.
(2) A development agreement may be submitted for review in conjunction with a land use and development permit for the underlying project. The development agreement application may be consolidated for processing with the underlying project permit application or other application for approval. Any development plan accompanying the development agreement shall be subject to the applicable project permit/approval application pro-
cess set out in this title. The application shall not be deemed complete until a draft development agreement has been prepared and a development proposal conforming to the parameters of the development agreement and meeting all pertinent requirements has been submitted. If the development agreement is consolidated with a project permit application, the property owner must agree to waive the deadline in RCW 36.70B.080 and POMC 20.24.110 for issuance of a final decision on the underlying application, as well as the prohibition of no more than one open record hearing and one closed record hearing on the underlying project permit application in RCW 36.70B.060(3).
(3) Public Notice and Public Hearing.
(a) Notice of the public hearing shall be provided pursuant to POMC 20.22.070.
(b) If the owner of the real property which is the subject of the development agreement owns another parcel or parcels of real property which lie adjacent to the real property included in the development agreement, notice under this subsection shall be given to owners of real property located within 300 feet of any portion of the boundaries of such adjacently located parcels of real property owned by the owner of the real property included in the development agreement.
(c) The hearing on the development agreement shall be held pursuant to POMC 20.22.070, except that when the development agreement is processed as a legislative matter (i.e., not consolidated with a project permit) the city council shall conduct the hearing itself and forgo a hearing and recommendation by the planning commission. Any requests associated with the project-specific development proposal requiring a public hearing by the hearing examiner shall be heard by the hearing examiner prior to city council action on the development agreement. While the director or hearing examiner may provide a recommendation on a development agreement (even if the director or hearing examiner makes the final decision on the underlying project permit application), the city council shall make the final decision whether to approve a development agreement by ordinance after the public hearing.
(d) Modifications to a development agreement shall be in writing, signed by the duly authorized representatives of the parties, be consistent with this chapter and, where considered substantive as determined by the director, follow the same procedures set forth in this chapter.
(4) Appeal. A development agreement associated with an underlying project permit application may be appealed in the same manner and within the same deadline as the underlying project permit application. A development agreement associated with a legislative approval, such as a comprehensive plan amendment, may be appealed in the same manner and within the same deadline as the legislative approval. A modification of a development agreement pursuant to POMC 20.26.020(8) that is consolidated with a new or pending Type I, II, III, or IV project permit application may be appealed pursuant to Chapter 36.70C RCW.
(5) Recording Against the Property. The city shall record the development agreement against the property with the real property records of the Kitsap County auditor. During the term of the agreement, it is binding upon the owners of the property and any successors in interest to such property. (Ord. 030-20 § 3; Ord. 019-17 § 18 (Exh. 1)).
20.26.060 Discretionary legislative action.
The decision of the city council to approve or reject a request for a new development agreement, a modification to an existing development agreement, or grant an extension of an existing development agreement, shall be a discretionary, legislative act and an exercise of the city’s police power and contract authority. (Ord. 030-20 § 3).
20.26.070 Unauthorized fees prohibited.
Nothing in this chapter is intended to authorize the city to impose impact fees, inspection fees, or dedications or to require any other financial contributions or mitigation measures except as expressly authorized by other applicable provisions of law. (Ord. 030-20 § 3).