Loading...
HomeMy WebLinkAbout1998-045 City development regulations , \._ . , . F __ II . ORDINANCE NO. ' 98'= 45 . AN ORDINANCE ' to clarify the applicability of City development regulations and comprehensive plans to land use and development proposals for which a complete application has been filed with the appropriate City department; amending Ordinance No. 98 -29; and providing for related matters. WHEREAS, by Ordinance No. 98 -29, the City Council provided that land use and development proposals within the City of Yakima shall be reviewed and decided under existing development regulations to the extent such regulations can be applied consistently . with and in a fashion which implements 1997 Yakima Urban Area Comprehensive Plan; and WHEREAS, prior to the enactment of Ordinance No. 98 -29, the policy of the City was to process and decide land use project permit applications (including applications for rezones) under the 1981 Yakima Urban Area Comprehensive Plan, to the extent that consistency with the Yakima Urban Area Comprehensive Plan was required by applicable law; and • WHEREAS, it is in the best interest of the City to amend Ordinance No. 98 -29 to conform to state law regarding the applicability of City development regulations and comprehensive plans to land use and development proposals; • now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: Section 1. Section 1 of Ordinance No. 98 - 29 is amended to read as follows: Effect of City of Yakima Comprehensive Plan on Future Land Use and Development Proposals. On --and after August 5 1-99 - - .... - . ... - - .. . . . - - - - • ...- , Each land use and development proposals (including, without limitation, any rezone proposal) within the City of Yakima for which a complete application was filed with the appropriate City department on or after August 5, 1998 shall.be reviewed and decided under: (1) existing development regulations in effect on the date that complete application was filed with the appropriate City department; . - - - .. - _ :. - -. . - • -. - -- - and(2)to the extent that consistency with the Yakima Urban Area Comprehensive Plan is required by applicable law, - .. , .. • - • - .. . .. • - forth in the 1997 Yakima Urban Area Comprehensive Plan as amended and in effect on the date that complete application was filed with the III appropriate City. department. • Page 1 of 2 Section 2. A new provision' is added to the provisions of Ordinance No. 98 -29 to read as follows: Effect of City of Yakima Comprehensive Plan on Existing Land Use and Development Proposals. Each land use and development proposal (including, without limitation, any rezone proposal) within the City of Yakima for which a complete application was filed with the appropriate City department before August 5, 1998, shall be reviewed and decided under: (1) development regulations in effect on the date that complete application was filed with the appropriate City department; and (2) to the extent that consistency with the Yakima Urban Area Comprehensive Plan is required by applicable law, the 1981 Yakima Urban Area Comprehensive Plan as amended and in effect on the date that complete application was filed with the appropriate City department. For purposes of the preceding sentence, the 1981 . Yakima Urban Area Comprehensive Plan will not be considered amended or rendered ineffective by the adoption of the 1997 Yakima Urban Area Comprehensive Plan pursuant to Ordinance No. 97 -22. Section 3. Section 4 of Ordinance No. 98 -29 is hereby repealed. Section 4. Effective Date. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. Section 5. Severability. If any section, phrase or provision of this ordinance is held illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. PASSED BY THE CITY COUNCIL, signed and approved this r day of c;r , 1998. r John Puccinelli, Mayor ATTEST: d o- - .2 --, --- City Clerk Publication Date: / () 'IS Effective Date: O (— a-a- • Page 2 of 2 • CITY OF YAKEMA • LEGAL DEPARTMENT 200 South Thad Street, Yalcina,washingtm 98901X30 (509)575.6030 Fax (&»)5756160 MEMORANDUM May 5, 1997 TO: Honorable Lynn Buchanan, Mayor, and Members of City Council Dick Zais, City Manager FROM: Larry Peterson, Assistant City Attorney (575 - 6030) SUBJECT: GMA Comprehensive Plan Adoption, Ordinance 97 -22 I have been asked to render a brief opinion regarding the City Council's intent when it passed Ordinance 97 -22 on April 1, 1997, adopting the City of Yakima's Comprehensive 0 Plan (Comp Plan) as required by the Growth Management Act. . The particular concern is what effect, if any, does the 1997 Comp Plan have before new development regulations are adopted. During discussion at the April 1 meeting, and by amendment to the initial motion for passage of the ordinance presented, the City Council deleted the phrase, "in conjunction with the adopted Yakima Urban Area Comprehensive Plan" which appeared at lines 84 -85. "Future land use decisions shall be based upon these ordinances [existing land use regulatory ordinances], as periodically amended." is the operative language from Ordinance 97 -22 as it was passed. , I recall the sense of the City Council's discussion was that until new development regulations, including new zoning ordinances, are adopted, existing land use regulations, including the existing UAZO, shall be applied to land use decisions (including rezones, Class 2 and 3 applications, and subdivisions) according to the 1981 Comp Plan, not the new Comp Plan. This intent clearly motivated deletion of the phrase: "in conjunction with the adopted Yakima Urban Area Comprehensive Plan ". Thus, it is my legal opinion that the City Council's intent, and thus the law of the City of Yakima under Ordinance 97 -22 is: the 1981 Comp Plan, not the new Comp Plan, shall govern and guide any land use decisions, (including but not limited to rezones, Class 2 and 3 applications, and subdivisions" until new development regulations are adopted. 0 Applicants may, at their discretion, follow the new Comp Plan, but under Ordinance 97- 22, they are not compelled or required to do so. _ _ et_ P R E S T O N G A T E S & E L L I S L L P ATTORNEYS MEMORANDUM Privileged and Confidential Attorney- Client Client Communication To: William Cook, Director of Community and Economic Development, City of Yakima From: Eric S. Laschever �. 0 14 7 ' 7 ) Roger D. Wynne OCT 0 7 1998 Date: October 6, 1998 0 11 *46.4 f. Subject: Proposed ordinance to clarify Ord. 98 -29; Applicability of GMA development regulations and comprehensive plans to land use proposals • • - City planning staff and applicants for certain land use proposals in the City have raised questions about the applicability of various versions of the City's comprehensive plan and development regulations to those land use proposals. To address this issue, you asked us to help you prepare a draft ordinance to amend and clarify Ord. 98 -29, which the Council adopted in August. Attached to this memorandum is the draft clarifying ordinance that we prepared in conjunction with the City Attorney's office. The purpose of this memorandum is to explain the source of the current confusion and the legal rationale for the draft clarifying ordinance. I. SUMMARY The Growth Management Act ( "GMA ") requires each local jurisdiction to adopt a comprehensive plan, then to revise its development regulations consistent with that plan. When a jurisdiction is still in the middle of this process, as is the . case with the City, questions can arise over two critical questions: • • Which body of law (the comprehensive plan or development regulations) applies t� land use applications in the City? ' • Which version of those laws controls (the current version or some earlier version)? • A LIMITED LIABILITY PARTNERSHIP INCLUDING OTHER LIMITED LIABILITY ENTITIES ANCHORAGE • COEUR D'ALENE • HONG KONG • LOS ANGELES • ORANGE COUNTY • PORTLAND • SAN FRANCISCO • SEATTLE • SPOKANE • WASHINGTON, D.C, 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104. 7078 206. 623. 7580 FX: 206. 623. 7022 www.prestongates.com Memorandum Privileged and Confidential October 6, 1998 Attorney - Client Client Communication Page 2 State law answers some aspects of these questions: ___ • The City's development regulations should continue to control land use proposals in the City. The City's comprehensive plan remains relevant to these proposals to the extent required by other law, such as where no applicable development regulation exists, or as with site - specific rezones, the development regulations require consistency with the plan. • The ".vested rights" doctrine requires the City to consider each land use proposal under the version of its development regulations and, where applicable to the decision, comprehensive plan in effect on the date a complete application for that proposal was submitted. Although this rule does not apply to site - specific rezone requests as a matter of state law, the City may decide to apply it as a matter of policy. Although Ord. 98 -29 addresses some of these issues, additional questions have arisen regarding several of them. Recommendation: We recommend that the Council adopt the attached draft clarifying ordinance, which would: (1) resolve confusion. regarding the status of applicable land use law in the City and thereby reduce the risk of litigation to resolve that confusion; (2) align the City's land use law more squarely with state judicial and legislative authority; and (3) reaffirm prior City practice while indicating cleanly and fairly the Council's intent to amend that practice. In particular, the draft clarifying ordinance contains the following provisions: • As provided by state law, land use proposals will generally be considered under the City's development regulations rather than its comprehensive .plan. The comprehensive plan may nevertheless apply where otherwise required by law, such as where no applicable development regulation exists or the development regulations require consistency with the comprehensive plan. • In accordance with the state "vested rights" doctrine, land use proposals will be reviewed and decided under land use controls in effect on the date a complete application for that proposal was filed with the City. The 1997 Yakima Urban Area Comprehensive Plan—to the extent that applicable law requires the City to assess a proposal's consistency with a comprehensive plan—will be "in effect" as of August 5, 1998. The 1981 Plan, for this limited purpose, will therefore be "in effect" for all earlier complete applications for land use proposals. • Although the vested rights doctrine does not apply to rezone requests, the City will apply the rule as a matter of policy in recognition of prior City practice. Making all or some of these points through a clarifying amendment can be done consistently with the GMA. The 1997 Plan will continue to serve its GMA- mandated function of 11) Memorandum • Privileged and Confidential - October 6, 1998 • Attorney- Client Client Communication 0 Page 3 guiding changes to the City's development regulations, as it had done since its initial adoption in April 1997. These clarifying amendments would essentially establish August 5, 1998, as the effective date of the 1997 Plan only for the relatively rare instances where other, non -GMA law requires consistency between a land use proposal and a comprehensive plan. II. FACTUAL BACKGROUND On April 1, 1997, the City Council adopted the Yakima Urban Area Comprehensive Plan ( "1997 Comp Plan"), which superseded the 1981 Yakima Urban Area Comprehensive Plan ("1981 Comp Plan"). Ord. 97 -22 § 1 (adding YMC 1.42.050). Ordinance 97 -22 stated that, following adoption of the 1997 Comp Plan, the City's existing land use development regulations found in the Yakima Municipal Code would control future City decisions regarding land use proposals: "All existing land use regulatory ordinances and land use controls shall remain in effect....until such time that these ordinances are amended. Future land use decisions shall be based upon these ordinances, as periodically amended." Ord. 97 -22 § 2 (amending YMC 1.42.070.D). In the wake of Ord. 97 -22, the City retained its practice of applying the 1981 Comp Plan to land use proposals in the City, to the extent that consistency with the City's comprehensive • plan was required for those proposals. See Memorandum from Larry Peterson, Assistant City Attorney, to Mayor and City Council (May 5, 1997). On August 4, 1998, the City Council adopted Ord. 98 -29. That ordinance noted that the City is preparing revisions to its development regulations to achieve greater consistency with the 1997 Comp Plan, and stated that until the City adopts those revisions, future land use proposals "shall be reviewed and decided under existing development regulations to the extent such regulations can be applied consistently with and in a fashion which implements the goals, objectives and policies set forth in the [1997 Comp Plan]." Ord. 98 -29 § 1. III. RATIONALE FOR THE DRAFT CLARIFYING ORDINANCE 1. The source of potential confusion: Which rules, and which versions of those rules, apply to land use proposals while the City is adopting development regulations. The GMA and related land use statutes establish a hierarchy of land use controls. At the • top of the hierarchy is. the .GMA statute itself. It establishes certain goals, parameters, and procedures that local jurisdictions must follow when adopting and amending comprehensive plans tailored to local conditions. The GMA also ensures that a local jurisdiction's comprehensive plan, in turn, controls the content of that jurisdiction's development regulations, which consist of code provisions regarding land use actions, such as conditional use, zoning, and subdivision ordinances, and the zoning map. These development regulations, in turn, control applications for land use approvals, such as conditional use permit, building permit, or 0 subdivision applications. Memorandum Privileged and Confidential October 6, 1998 Attorney- Client Client Communication Page 4 4110 Confusion often results when trying to determine the status of a given jurisdiction's land use law when the jurisdiction has only partly completed these series of changes. ' • This is now the case in the City. The City had amended its comprehensive plan, but has not finished updating its development regulations in response to that amendment. This leaves two essential questions: 1. Which body of law (the comprehensive plan or development regulations) applies to land use proposals in the City? 2. Which version of those laws controls (the current version or some earlier version)? 2. State law answers some aspects of these questions. a. As a general rule, development regulations —not a comprehensive plan- control the decision on a particular land use proposal, but a comprehensive plan might nevertheless be relevant to a land use proposal in certain situations. The Washington Supreme Court recently ruled that, even if a local government • has not revised its development regulations, its pre -GMA development regulations, rather than its comprehensive plan, control a land use proposal: Since a comprehensive plan is a guide and not a document designed for • making specific land use decisions, conflicts surrounding the appropriate use are resolved in favor of the more specific regulations, usually zoning regulations. Citizens v. Mount Vernon, 133 Wn.2d 861, 875, 947 P.2d 1028 (1997). A comprehensive plan might nevertheless be relevant to a land use proposal, such as where no applicable development regulation exists (RCW 36.70B.030(1)) or where the applicable development regulations require consistency with the plan. The Yakima Municipal Code contains an example of the latter situation. When considering an application for a site - specific rezone, the Hearing Examiner must consider a range of factors, one of which is the "extent to which the proposed [rezone is] in compliance with and/or deviate[s] from the goals and policies of the Yakima urban area comprehensive plan...." YMC 15.23.030.E.4. • In sum, Supreme Court authority dictates that the City's development regulations continue to control land use proposals in the City. The City's comprehensive plan remains relevant to these proposals to the extent required by other law, such as where no Memorandum Privileged and Confidential O,;tober 6, 1998 Attorney- Client Client Communication 5 Page 5 applicable development regulation exists, or as with site - specific rezones, the development regulations require consistency with the plan. b. An applicant for a land use action (except a rezone) has a right to have his or her application considered under the land use controls in effect when the complete application was filed. Under Washington law, an applicant for a land use proposal may assert a "vested right" to have his or her application evaluated under the land use controls in effect at the time he or she submitted a complete application for that proposal. See Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 275, 943 P.2d 1378 (1997) (stating the general rule); RCW 19.27.095 (statutory vesting rule for building permits); RCW 58.17.033 (subdivisions). But see WAC 197- 11- 660(1)(a) (establishing a unique vesting rule for the exercise of SEPA substantive authority). To the extent that a comprehensive plan is relevant to a land use proposal (as with site - specific rezones in the City), it would be reasonable to consider the comprehensive plan to be a "land use control" subject to the vested rights doctrine. One exception to this rule is for rezone applications, where courts have held that S an applicant cannot assert a vested right to force a local jurisdiction to process such an application under any particular version of law. Teed v. King County, 36 Wash. App. 635, 644 -45, 677 P.2d 179 (1984); Hale v. Island County, 88 Wn. App. 764, 771, 946 P.2d 1192 (1997). The significance of the vested rights doctrine to the City is that it must consider each land use proposal under the version of its development regulations and, where applicable to the decision, comprehensive plan in effect on the date of a complete application. In the case of rezone requests, the City is not bound to apply this rule, but may nevertheless decide to do so as a matter of policy. See Erickson & Assoc., Inc. v. McLerran, 123 Wn.2d 864, 873, 872 P.2d 1090 (1994) (municipalities may establish local vesting schemes that do not conflict with statutory or common law vesting rules). 3. Questions for which the Council could provide greater clarity. Ordinance 98 -29 answered the question of which version of the comprehensive plan would apply to future land use proposals —the 1997 Comp Plan. Ordinance 98 -29 did not clearly answer the questions discussed below, which the draft clarifying ordinance attempts to address. a. Are land use proposals to be reviewed for compliance with the comprehensive plan or the development regulations? As discussed above, the Washington Supreme Court has held that, where the application of development regulations and comprehensive plan provisions might lead to divergent results for a given land use proposal, the development regulations must control. Memorandum Privileged and Confidential October 6, 1998 Attorney- Client Client Communication Page 6 The final clause of Ord. 98 -29 might be interpreted as contrary to this rule: "land use and development proposals...shall be reviewed and decided under existing development regulations to the extent such regulations can be applied consistently with and in a fashion which implements the...Plan." (Emphasis added). Some might read this clause as authority for asserting that comprehensive plan provisions control notwithstanding applicable development regulations. This was likely not the Council's intent. Given the Supreme Court's recent decision, and the possibility that others may misconstrue Ord. 98 -29 as running counter to that decision, the Council might wish to provide greater clarity on this point. The draft ordinance seeks to conform to the Mt. Vernon decision while still acknowledging that the comprehensive plan may be relevant to land use proposals in certain situations. b. Which version of the development regulations will apply to future land use proposals? As discussed above, an applicant for a land use proposal (other than a rezone) may assert a "vested right" to have his or her application evaluated under the land use controls in effect at the time he or she submitted a completed application for that proposal. • Ordinance 98 -29 states that, after August 5, 1998, "and until such time as revised development regulations are enacted to implement the adopted Yakima Urban Area Comprehensive Plan, land use and development proposals...shall be reviewed and decided under existing development regulations...." This language raises the following issues under the vested rights doctrine: (a) are "existing" regulations those in effect on August 5, 1998, or those in effect at some later date, like the date of a future application; and (b) will the vesting rule established in Ord. 98 -29 still be valid after "revised development regulations are enacted to implement the adopted Yakima Urban Area Comprehensive Plan"? Although the vested rights doctrine would most likely control over any local code language that might diminish vested rights, the Council may wish to avoid possible confusion by considering language that more closely mirrors the vested rights doctrine. The draft clarifying ordinance includes language that essentially restates the vested rights doctrine. Memorandum Privileged and Confidential - October 6, 1998 Attorney- Client Client Communication Page 7 c. Which version of either the comprehensive plan or the development regulations should apply to land use proposals that were complete and pending as of August 5, 1998? ° By explicitly addressing which versions of the comprehensive plan and development regulations apply to development proposals after August 5, 1998, Ord. 98- 29 implies that the 1981 Comp Plan and existing development regulations apply before that date. Although the vested rights doctrine would dictate which version of applicable land use controls would control any existing land use proposal, the Council may wish to provide greater clarity through language that mirrors this doctrine. The proposed clarifying ordinance adds a new section to address proposals pending with the City as of August 5, 1998. d. Does Ord. 98 - 29 apply to proposals for site - specific rezones? Washington courts have held that the vested rights doctrine does not apply to rezone requests. Even though this means that the City is not bound to consider rezones under the law in effect at the time of application, the Council may nevertheless decide to do so as a matter of policy. For example, the Council may decide that existing rezone applicants had a reasonable expectation that their proposals would be considered under the land use controls in effect at the time they filed their applications, even though that expectation may not have been entirely justified under case law. The reasonableness of this expectation was perhaps enhanced by the City's retention of its practice of applying the 1981 Comp Plan to land use proposals in the City, to the extent that consistency with the City's comprehensive plan was required for those proposals, from May 1997 through the adoption of Ord. 98 -29 in August of 1998. See Memorandum from Larry Peterson, Assistant City Attorney, to Mayor and City Council (May 5, 1997). The proposed clarifying ordinance explicitly includes site - specific rezones. 4. Ordinance 98 - 29 and the draft clarifying ordinance comply with the GMA. Nothing in Ord. 98 -29 or in the draft clarifying ordinance renders the 1997 Comp Plan ineffective. The 1997 Comp Plan will continue to serve its GMA - mandated function of guiding changes to the City's development regulations, as it had done since its initial adoption in April 1997. Ordinance 98 -29 and the draft clarifying ordinance simply explain which land use laws, • and which versions of those laws, apply to individual land use proposals in the City. The goal is to reduce confusion by conforming City practice to: (1) Supreme Court authority that maintains Memorandum Privileged and Confidential October 6, 1998 Attorney - Client Client Communication Page 8 that applicable development regulations, rather than a comprehensive plan, control land use proposals; and (2) the state's the vested rights doctrine: Ordinance 98 -29 and the draft clarifying ordinance would essentially establish August 5, 1998, as the effective date of the 1997 Comp Plan only for the relatively rare instances where law other than the GMA requires consistency between a land use proposal and a comprehensive plan. The GMA does not directly control individual land use proposals, and we are aware of no court or Growth Management Hearings Board decision that would prevent the City from explicitly clarifying these issues in this manner. RDW:rdw cc: Raymond L. Paolella, City Attorney Attachment K1257221100005\Ro MRDW M204K BUSINESS OF THE CITY COUNCIL • YAKIMA, WASHINGTON AGENDA STATEMENT Item No. J 1 7 4 For Meeting Of: October 20, 1998 ITEM TITLE: An Ordinance Amending Ordinance 98 -29 to Clarifying the Applicability ,,00ff City Development Regulations and Comprehensive Plan f SUBMITTED BY: `''tD't1i am Cook, Director Department of Community & Economic Development CONTACT PERSON / TELEPHONE: William Cook, Director (575 -6113) SUMMARY EXPLANATION: Background: On April 1, 1997, the City Council adopted the Yakima Urban Area Comprehensive Plan ( "1997 Comp Plan"), which superseded the 1981 Yakima Urban Area Comprehensive Plan ( "1981 Comp Plan"). Ord. 97 -22 § 1 (adding YMC 1.42.050). Ordinance 97 -22 stated that, following adoption of the 1997 Comp Plan, the City's existing land use development regulations found in ID the Yakima Municipal code would control future City decisions regarding land use proposals: "All existing land use regulatory ordinances and land use controls shall remain in effect....until such time that these ordinances are amended. Future land use decisions shall be based upon these ordinances, as periodically amended." Ord. 97 -22 § (amending YMC 1.42.070.D). In the wake of Ord. 97 -22, the City retained its practice of applying the 1981 Comp Plan to land use proposals in the City, to the extent that consistency with the City's comprehensive plan was required for those proposals. See Memorandum from Larry Peterson, Assistant City Attorney, to Mayor and City council (May 5, 1997). Continued on next page Resolution Ordinance_ Contract _ Other (Specify) Funding Source c c� ( APPROVAL FOR SUBMITTAL: �� ` -:=, s City Manager STAFF RECOMMENDATION: Pass Ordinance BOARD RECOMMENDATION:. . ill COUNCIL ACTION: On August 4, 1998, the City Council adopted Ord. 98 -29. That ordinance noted that the City is preparing revisions to its development regulations to achieve greater consistency with the 1997 Comp Plan, and stated that until the City adopts those revisions, future land use proposals "shall be reviewed and decided under existing development regulations to the extent such regulations can be applied consistently with and in a fashion which implements the goals, objectives and policies set forth in the [1997 Comp Plan]." Ord. 98 -29 § 1. The Growth Management Act ( "GMA ") requires each local jurisdiction to adopt a comprehensive plan, then to revise its development regulations consistent with that plan. When a jurisdiction is still in the middle of this process, as is the case with the City, questions can arise over two critical questions: • Which body of law (the comprehensive plan or development regulations) applies to land use applications in the City? • Which version of those laws controls (the current version or some earlier version)? Recommendation: We recommend that the Council adopt the attached clarifying ordinance, which would: (1) resolve confusion regarding the status of applicable land use law in the City; (2) align the City's land use law more squarely with state judicial and legislative authority; and (3) reaffirm prior City practice while indicating cleanly and fairly the Council's intent to amend that practice. In particular, the attached clarifying ordinance contains the following provisions: • • As provided by state law, land use proposals will generally be considered under the City's development regulations rather than its comprehensive plan. The comprehensive plan may nevertheless apply where otherwise required by law, such as where no applicable development regulation exists or the development regulations require consistency with the comprehensive plan. • In accordance with the state "vested rights" doctrine, land use proposals will be reviewed and decided under land use controls in effect on the date a complete application for that proposal was filed with the City. The 1997 Yakima Urban Area Comprehensive Plan—to the extent that applicable law requires the City to assess a proposal's consistency with a comprehensive plan —will be "in effect" as of August 5, 1998. The 1981 Plan, for this limited purpose, will therefore be "in effect" for all earlier complete applications for land use proposals. • Although the vested rights doctrine does not apply to rezone requests, the City will apply the rule as a matter of policy in recognition of prior City practice.