HomeMy WebLinkAbout03/26/2013 03 Built Environment Strategy 9
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 3
For Meeting of: March 26, 2013
ITEM TITLE: Built Environment Strategy
SUBMITTED BY: Steve Osguthorpe, AICP
Community Development Director (509) 575 -3533
CONTACT Steve Osguthorpe, AICP
PERSON /TELEPHONE: Community Development Director (509) 575 -3533
SUMMARY EXPLANATION:
1. Power -point Presentation on Built Environment
2. Discussion of Recommended Follow -up Steps
a. Sign Code Overlay - North 1st Street
b. Amendments to Landscaping Standards
c. Consideration of Zone Transition Issues
3. Model Code Proposal
Resolution Ordinance Other
(specify)
Contract: Mail to:
Contract Term: Amount: Expiration Date: •
Insurance Required? No
Funding
Source: Phone:
APPROVED FOR
SUBMITTAL: r City Manager
STAFF RECOMMENDATION:
BOARD /COMMISSION RECOMMENDATION:
ATTACHMENTS:
Click to download
0 Model Code Proposal
PROPOSAL FOR THE REVISION OF
THE YAKIMA DEVELOPMENT CODE
L PROPOSAL. The proposal is for a Basic Development Code that satisfies legal
requirements and is as simple to understand as possible (for City staff, officials, property
owners, developers and the public).
IL NEED FOR CODE REVISION. A review of the Yakima Municipal Code
discloses that there is a need for a major revision of the Development Code. The
following subsections, A — H, explain the identified need and suggest an approach to
updating the Code.
A. The procedures for processing development permits are in three separate Titles
of the Municipal Code.
In order for City staff to implement and enforce development codes, they need to
understand them. Property owners and developers will have difficulty following
development codes that are not simple and clear.
The first questions that will be posed by the staff, property owner, or member of the
public when considering a proposed development, are: (1) what type of permit is needed;
and (2) what is the procedure for processing that application.
The Code is unclear in terms of both the types of permit applications, and the types of
permit approvals. In terms of permit applications, it establishes application types that are
not familiar to most developers and that have no clear association with established case
law. For example, it uses the terms "Type (2)" and "Type (3)" permits instead of the
more familiar term, "conditional use permit ". This is significant because it is under a
conditional use permit that state vesting laws have effect (discussed more fully below).
In terms of permit approvals, there are two types of approvals described, and it is not
clear how they relate to each other. Specifically, the Code defines a "development
permit" and it defines a "certificate of zoning review ". The procedures for processing of
a "development permit," under Type (1) review are included in Title 15 of the Yakima
Urban Area Zoning Ordinance. The procedures for processing of a "certificate of zoning
review" for uses requiring Type (2) and Type (3) review are also included in Title 15.
Here are the definitions of "certificate of zoning review" and "development permit" in
Chapter 15.02:
`Certificate of zoning review' means that certificate issued by the
appropriate administrative official stating that the proposed use of the
structure or land conforms to the provisions of this title.
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`Development permit' means written authorization for development or
modification of development as defined in this Title. When a building or
other construction permit is required, the building/construction permit
shall serve as the other development permit. If no building /construction
permit is required, the certificate of zoning review shall serve as the
development permit.'
In addition to certificates of "zoning review" and "development permits ", the Code also
uses the term "Project Permit ". Applications for "project permits" are processed under
Title 16, which is titled: "Administration of Development Permit Regulations." Given
that "development permits" are processed under Title 15, this title is confusing. The
definition of "project permit" in Section 16.02.060 is broad enough to include a
"development permit" ( "any land use or environmental permit or license required for a
project action "). The term "project action" is not defined.
The use of multiple terms and definitions creates confusion and is unnecessary -- the
definition of "project permit" in RCW 36.70B.020(4) is very specific — it includes
"building permits, subdivisions, binding site plans, planned unit developments,
conditional uses, shoreline substantial development permits, site plan review, permits or
approvals required by critical areas ordinances, site specific rezones authorized by a
comprehensive plan or subarea plan, but excluding the adoption or amendment of a
comprehensive plan, subarea plan, or development regulation."
Based on the definition of "project permit" from RCW 36.70B.020(4), the
permits /approvals identified in Title 14, Subdivisions, are also project permits. However,
Title 14 includes additional and separate procedures for processing short plats,
preliminary plats, final plats, and binding site plans.
Suggestion: There is no need to have procedures for processing applications in three
separate Titles of the Yakima Municipal Code. All of the processing procedures can be
included in one Title, and then referenced in other sections of the Code as necessary.
It is very important for the Code to identify, specifically, which applications are subject
to project permit processing because it involves additional steps and requires issuance of
a final decision by an established deadline. In addition, if the City doesn't issue timely
final decisions on project permit applications, the City can be sued by the property owner
for damages and recovery of attorneys' fees. By not specifically defining which
applications are subject to project permit processing in the Code, there is a risk that the
City is using this procedure when it is unwarranted, or not using it when it is required.
The public may also be confused about the procedure that will be used by the City for
processing a permit, given the lack of a specific definition.
1 However, this last sentence is contradicted by the language of Section 15.14.060 and 15.15.060: "The
certificate of zoning review is not a building or development permit and does not by itself authorize the
construction or occupancy of any use or structure."
2 RCW 64.40.020.
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B. The Code doesn't list all of the elements of a complete application.
Cities planning under the Growth Management Act are required to establish a project
permit processing procedure in their development codes which includes the required
elements in RCW 36.70B.060. The elements pertinent to this discussion are: (1)
issuance of a determination of completeness to the applicant; (2) a project permit
processing procedure that generally provides for no more than one open record hearing
and one closed record hearing; and (3) issuance of a notice of decision to the applicant
within an established time limit (usually 120 days after issuance of the notice of
completeness).
Once an application has been submitted, the City determines whether it is complete.'
Because the City is required to include all of the materials needed for a complete
application in the Code, the City determines completeness of the application by
comparing the application with the list in the Code. (The City's code must, "for each
type of permit application, specify the contents of a completed project permit application
necessary for the complete compliance with the time periods and procedures. " If the
application is complete, the City sends out a determination of completeness, and the
"clock" starts running on the deadline for the City to issue a final decision on the
application.
In Section 15.11.030, there is a graph listing the application requirements. However,
these application requirements are very basic (name, signature of property owner, parcel
number, description of proposed action, fee). Some information (like size of property,
SEPA checklist, site plan) may be required. In addition, Section 15.11.020(B) includes
language which states that in addition to the basic information, "the administrative
official, at his discretion, may require additional information to clarify the application or
determine compliance with the provisions of this title." In other words, the Code does
not appear to include all of the contents of a complete project permit application
necessary for the complete compliance with the time periods and procedures.
Suggestion: Instead of a chapter with a few general application requirements, include a
detailed list of all of the required elements of a complete application in the same chapter
with the specific permit type. For example, eliminate chapter 15.11, and in the chapter
3 All of the required project permit processing elements are listed in RCW 36.70B.060.
4 As required by RCW 36.70B.070.
5 As required by RCW 36.70B.060(3) and (6).
6 As required by RCW 36.70B.060(7) and RCW 36.70B.080(1).
' See, RCW 36.70B.070.
s RCW 36.70B.080(1).
9 Contrast these requirements with the requirements for short and preliminary plat applications in YMC
Section 14.15.010. The elements of a complete preliminary plat application appear to be in 14.20.030 and
14.20.050.
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dealing with variances, list all of the materials necessary to make an application for a
variance complete.
C. There are two separate titles in the Municipal Code relating to processing of
permits, but neither reference the other.
For example, in YMC Sections 15.13.010, 15.14.010 and 15.15.010, there is the
statement that "this chapter establishes procedures for issuance of a development permit
for uses requiring Type I [II and III] review." Again, if an application for a "project
permit," is the same as an application for a "development permit," it appears that the City
must process the application under the procedures in both Title 15 and Title 16.
The individual sections of Title 15 do not reference Title 16, so the reader would not
know that the provisions of Title 16 must be satisfied, in addition to those in Title 15.
For example, in Sections 15.13.070, 15.14.070 and 15.15.070, there is a statement that:
"Any decision by the administrative official to deny issuance of a permit for a Class 1 [II
and III] use may be appealed to the hearing examiner under the provisions of YMC
15.16.030." Chapter 15.16 does address appeals, but doesn't reference the separate
appeal process in Chapter 16.08.
Suggestion: Combine Title 15 with Title 16 so that there is only one procedure for
processing project permit applications. The new procedure should also specifically
identify which types of permits are not subject to the permit processing procedure.
Eliminate all permit processing procedures from Title 14 and in each section dealing with
the project permit (short plat, preliminary plat, final plat, binding side plan), reference the
new permit processing Title.
D. There are procedural conflicts in the language of Titles 14, 15 and 16.
Procedural conflicts in the Yakima Municipal Code pertain to application completeness
and appeals:
1. Application Completeness. There are at least two procedures for
the City to determine an application complete, and one is contrary to law for project
permit applications. Under Section 15.11.080(A) and 14.15.030, the City reviews the
application and if additional information is required to make the application complete, the
City "refers" or returns the application back to the applicant. Section 15.11.080 doesn't
limit use of this procedure to any type of permit and it is contrary to state law for project
permit applications. That is different than the procedure in Sections 16.04.010, and
14.20.060, which has the City review the application within 28 days after submission and
then send a written notice to the applicant, telling the applicant either that the application
is complete or if not complete, what is needed to make the application complete. Then,
the City waits for the applicant to submit the additional information — the application is
not returned.
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2. Judicial Appeals. There are at least two procedures identified in
the Code for judicial appeals of final land use decisions with different filing deadlines.
Under Section 15.16.060, anyone seeking to appeal a decision by the legislative body is
required to file a writ of "judicial review" from the Yakima Superior Court within 30
days. In Section 14.50.040, the appeal of a decision of the City Council must be filed as
the "appropriate writ of judicial review" in court within 21 days of the decision.
However, in Section 16.08.040, the City's final decision must be filed with the Yakima
Superior Court within 21 days of issuance. The procedure for a writ of review has been
eliminated for "land use decisions" as defined in RCW 36.70C.020. Appeals of final
land use decisions must be filed in superior court within 21 days of issuance of the
decision under RCW 36.70C.040.
3. Administrative Appeals. There are at least three separate
procedures for administrative appeals in Titles 14, 15 and 16. The City Council may
consider additional evidence in its closed record appeal hearing of a decision from the
hearing examiner under Section 15.16.050 and 14.20.110(B), but under Section
16.08.030(C), no new evidence may be presented at this hearing. There is another, more
abbreviated procedure for a City Council closed record appeal in Section 14.50.030.
E. The Code does not clearly explain the appropriate use of certain permits.
There are three areas of confusion over the appropriate use of defined permits:
1. Variance vs. Administrative Adjustment. It is difficult to
understand from reading the Code, when an applicant needs to apply for an "adjustment"
to development standards under the Administrative Adjustment procedure in Chapter
15.10 instead of a variance under chapter 15.21. (It is also hard to understand whether an
"adjustment" is the same as a "development modification" listed in Section 15.11.030.)
There appears to be no criteria for approval for an adjustment (as long as the adjustment
is "consistent with the intent and purposes of the standards" and will accomplish one or
more of certain identified objectives in Section 15.10.020). In contrast, there are strict
criteria that must be satisfied for the City to approve a variance under Section 15.21.030.
If the Code doesn't clearly describe the difference between an "administrative
adjustment" and "variance," all applicants will choose the procedure with the most
flexible standards. This is problematic because, "[z]oning ordinances need to be specific
enough to limit arbitrary and discretionary enforcement of the law." 11
2. Type 1 -3 — Permit or Procedure? It is difficult to understand
whether Type 1 -3 Review is a type of permit or a procedure to obtain a certificate of
zoning review. Is a certificate of zoning review necessary if the City issues a decision on
the underlying permit application? Under Section 15.11.080(H) we read,
"If the decision of the administrative official or legislative body is for
approval, and if all other permits, approvals or actions required under this
10 RCW 7.16.360.
11 Cingular Wireless, LLC. v. Thurston County, 131 Wash App. 756, 777, 129 P.3d 300 (2006).
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title have been secured, the department shall issue a certificate of zoning
review. This certificate of zoning review shall be sent to the department
as authority for issuance of an actual development permit. . . ."
The certificate of zoning review appears to be a hybrid permit and permit processing
procedure. Another problem is that while there are established criteria for approval of the
Type 1 certificates of zoning review, there are none for Type 2 or 3. Instead, it appears
that it is up to the decision -maker for a Type 2 or 3 to merely determine whether the
proposed development is "consistent with the intent of this title, the zoning district, the
development standards and the other provisions of this title." Section 15.14.040(D);
15.15.040(D).
3. Use of Unfamiliar Permit Types. The City should consider the
advantages associated with the use of permits /approvals that are also used by other
jurisdictions (instead of permits unique to Yakima). For example, the City could use a
conditional use permit process instead of a Type 3 certificate of zoning review. This
would allow City staff, property owners, and the public some certainty regarding the
manner in which such permits would be processed and even handled by the courts. There
is a body of case law developed by the Washington courts for conditional use permits.
The courts have also considered whether conditional use permits are subject to the vested
rights doctrine. Also, the Code uses terms that do not directly align with SEPA
exemption policies, e.g., administrative adjustments versus variances. While variances
are specifically named and specified as exempt under SEPA; it's not explicitly clear that
administrative adjustments are likewise exempt.
F. The Code enforcement and revocation procedures should be revised.
It appears that the City could impose criminal penalties (fines, imprisonment or both)
under 15.25.020 for violations of Title 15, and /or a civil penalty (fines) under 15.25.030
for the same violations. If the City issues a notice of violation and the violation is not
corrected by the time established for compliance, then "the building official shall cause a
notice of lien to be filed in the Yakima County Auditor's office ... [and] upon the date of
filing of such notice of lien, a lien shall exist in favor of the city or county to secure the
payment of the civil penalty." Section 15.25.030. In addition, the "lien may be
foreclosed by the county /city in the manner provided by law for the foreclosure of
mortgages."
However, the City doesn't require sufficient notice to the property owner to be able to
impose a lien of this type (pre judgment lien) because the notice of noncompliance is
either served on the "person or persons to whom it is directed" under the procedures for
service of summons and complaints, or by mailing a copy of noncompliance by certified
mail to the person at his last known address. Section 15.25.070(C). In other words, this
procedure would allow the City to send a notice of noncompliance to a violator who is
not the property owner by certified mail, and if this person does not correct the violation,
it allows the City to impose a lien on the property — without ever properly serving the
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notice on the property owner. Or, it would allow the City to send a notice of
noncompliance to a property owner violator by certified mail to his /her last known
address, and if the violation is not corrected, it allows the City to impose a lien on the
property.
While the Notice of Noncompliance may be appealed to the hearing examiner, there also
needs to be a procedure for an appeal of a stop work order, so that a procedural due
process claim would be unsuccessful.
The procedure for revocation of permits or approvals needs to be revised. It appears to
allow the City to revoke or "modify" an issued permit at any time. However, revocation
or modification would be extremely difficult given the Washington court's directive that
"even illegal decisions must be challenged in a timely, appropriate manner. " 13 In other
words, the City would find it very difficult to revoke or modify an issued permit after 21
days have elapsed since the issuance of the final decision.
In addition, the grounds for revocation are insufficient. In Section 15.24.020, the code
allows the City to revoke or "modify" an issued permit if:
"the permit or approval is being or has been recently exercised or used
contrary to the terms or conditions of such permit or approval or in
violation of any other statute, ordinance or law and the department's or
administrative official's efforts have been ineffective."
If a permit has been used contrary to the permit or any applicable law, the enforcement
chapter allows the City to impose criminal penalties, civil penalties, to j ail the offender
and to take appropriate injunctive relief. There is no reason these procedures would not
prove effective. The only situation in which the Washington courts have sanctioned
revocation of an issued permit involved a preliminary plat, and the court held that the
facts supported a finding that revocation was "appropriate ... [where] it is impossible to
satisfy the conditions of approval because of knowing and deliberate violations of
conditions," and where "monetary fines and remediation methods cannot correct the
violations. "
G. Updates are required to comply with law.
The Washington Legislature amended the expiration dates for reliminary and final plats,
requiring updates to the City's Sections 14.20.160, 14.20.180.
12 See, Weinberg v. Whatcom County, 241 F.3d 746 (9 Cir. 2001) (procedural due process required the
county to hold a pre - deprivation hearing before issuing stop work order and vacating approved plats based
on developer's alleged code violations).
13 Habitat Watch v. Skagit County, 155 Wash.2d 397, 407, 20 P.3d 56 (2005).
14 Id.
15 HIS Development, Inc. v. Pierce County, 148 Wash.2d 451, 483 -84, 61 P.3d 1141 (2003).
16 See, RCW 58.17.140 and 58.17.170.
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H. Other Problems and Inconsistencies.
There are a number of other problems and inconsistencies in the Code that are too
numerous to list in this context. Staff has been keeping a record of identified problems
and inconsistencies that could be addressed in a major update to the Code.
IL COORDINATION WITH YAKIMA. This proposal is to provide a Basic
Development Code that satisfies legal requirements. Therefore, the revisions will
concentrate on the legal requirements for process and procedures. In general, Yakima
must identify the zoning districts, allowed uses within the zoning districts, and
development standards in the zoning districts. Yakima may decide that the information
in the existing code will be used, or provide new information.
III. SUBSTANCE OF CODE REVISION. The code revision contemplated by this
proposal will concentrate on those processes and procedures that are required by state law
(and applicable case law) for a Basic Development Code in a city planning under the
Growth Management Act (GMA). It would not be the intent of this update to make
substantive changes to current policies and standards except as such standards may be
found inconsistent with applicable law.
IV. SHARING OF COMPLETED CHAPTERS OF REVISED CODE. Carol
Morris is currently working on a model code for small cities planning under GMA. She
has completed several chapters that were commissioned and paid for by the Association
of Washington Cities Risk Management Services Agency (AWC - RMSA). AWC -RMSA
has authorized Carol Morris to provide these completed chapters to Yakima free of
charge, if Yakima is willing to share with AWC -RMSA (also free of charge) the work on
the Basic Development Code that Carol Morris completes for Yakima under this
proposal. The objective is to allow cities to share in the cost of the completion of the
model code, given that much of the resulting Basic Development Code will be of use to
many cities.
In addition, Edmonds is also interested in the development of a Basic Development Code.
If Edmonds contributes to the development of the Basic Development Code, the cost of
Yakima's contract with Carol Morris will be proportionately reduced, as long as
Edmonds has access to the final version of the Basic Development Code produced under
this contract.
V. COST. The cost for the work described in this proposal' is Fifteen Thousand
Dollars ($15,000.00), as long as Edmonds signs a contract with Carol Morris for a
revised Development Code.
" Not including the exceptions and exclusions noted herein.
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