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HomeMy WebLinkAbout04/20/2021 10 Background Report for Consideration of Site Specific Rezone Standards a\'4\lyy bxk ik 1 PPP PPP g. P A PPPPPP+Pd s' lii it tYlltYlA.\ta. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 10. For Meeting of:April 20, 2021 ITEM TITLE: Background Report for Consideration of Site Specific Rezone Standards SUBMITTED BY: Joan Davenport, Community Development Director Joseph Calhoun, Planning Manager SUMMARY EXPLANATION: At the April 6, 2021 City Council meeting, staff was directed to provide information on the process for amending city codes to require site specific rezones.A short procedural memo is included for Council review, as well as an article published by the Municipal Research Service Center(MRSC) regarding site specific rezones. ITEM BUDGETED: NA STRATEGIC PRIORITY: Public Trust and Accountability APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Provide direction ATTACHMENTS: Description Upload Date Type background I ep rt on Rion-Project rezone Amendment 41 /2021ackup M t ri l process D e fro ME on bite sp ific rezones 4/12/2021 backup Material DEPARTMENT OF COMMUNITY DEVELOPMENT 2 Joan Davenport, AICP, Director Planning Dia i5ioU CITY ©F vl K I M A Joseph Calhoun, Manager 129 North Second Street, 2nd Floor,Yakima,WA 98901 ask.planning@yakimawa.gov • www.yakimawa.gov/services/planning MEMORANDUM April 20, 2021 TO: Honorable Mayor and Members of the City Council Robert Harrison, City Manager FROM: Joan Davenport, AICP, Community Development Director Joseph Calhoun, Planning Manager SUBJECT: Amendment Process to Consider Site Specific Rezone Requirements At the April 6, 2021 City Council meeting, staff was asked to provide information related to the amendment procedures for consideration of site specific rezone. The short answer is that rezone procedures are a portion of the City Zoning Ordinance. (Yakima Municipal Code Title 15). Amendments to the Zoning Ordinance require a public participation process conducted by the Yakima Planning Commission, which will provide a recommendation to the City Council. . Rezones are codified in YMC Ch. 15.23, with text amendments specifically outlined in YMC § 15.23.020: 15.23.020 Text amendments. A. Initiation. An amendment to the text, standards, procedures or other provisions of this title may be initiated by action of the legislative body with jurisdiction or the city planning commission as provided for under Yakima Municipal Code (YMC) Title 16. B. Action by the Legislative Body. Any amendments in this title shall be by action of the legislative body with jurisdiction after a recommendation thereon from the city planning commission. Such action shall occur in accordance with the procedures set forth in RCW Chapter 35.63 and YMC Title 16 as it now exists or is hereafter amended. As you can see, pursuant to the ordinance, a text amendment to the zoning code can be initiated either by a vote of the City Council, or upon the Planning Commission's initiative. In either case, the following process steps need to be followed after the determination to review the code is made. The process steps are as follows: 1. Review and Recommendation by the Planning Commission (YPC) a. The YPC will hold study sessions and schedule a public hearing to hear testimony and comments from the public and interested stakeholders. 3 b. After the public hearing and deliberation they will formalize a recommendation to Council. 2. City Council Public Hearing a. City Council will hold a public hearing to review the YPC recommendation amending the zoning code. At the conclusion of the public hearing the Council will direct staff to bring back the appropriate legislation in the form of an Ordinance. b. At a subsequent meeting the Council will enact an Ordinance adopting their decision reached at the public hearing. 3. The Ordinance then becomes effective 30-days after publication Staff has provided an article published by the Municipal Research Center (MRSC) that provides some additional context related to the concept of Site Specific Rezones. Several Washington State cities have adopted guidelines and criteria for site specific rezones (including Everett, Auburn, Bellevue, Port Orchard, Walla Walla, and Seattle). All of these cities' site specific rezone applications require a Development Agreement, which must be approved by the City Council. No cities were found that limit all rezones to site specific applications. If the City Council chooses to direct the Planning Commission to conduct a public review process related to amendments of the zoning ordinance relative to site specific rezones, the Yakima City Council may wish to add additional guidance or statements of intent to assist the Planning Commission in their deliberations. Yakima dN r&mWh 2015 1994 4 L"ca|c"=mm."t Success � The^���* N�KU����������U^*�� �� ��^�� �����^�^� ���� � ��� _ � ������ , ' '_--- ' _'__ _-_-'__ --' ~~'~~. ~~�~~..... ..~ Rezones ~~~ . . .�. "~~~°~ ������� �=� �� ^�� ��� ����°� �� ������ ��~���� ��^����Z�����^��� Sheet- - - -_ _' x _- —'�� You_ �'__-- -_ Know about --'~-~ .~�~-~......~ March 31,2013 by PhiiOlbnshts Category:Land Use Administration, Planning Advisor 8v Phil 0ibrechts.Oibnechts and Associates, PLU[ We just can't help ourselves.VVe have to categorize everything.Put them into neat little boxes.VVe especially like to do that in the taws we pass. Land use laws are no exception.We start the boxing process for land use taws by throwing an issue in either the"legislative"or"permitting" box.That's usually an easy task.Except for site specific rezones.Sometimes site specific rezones act like a piece of legislation,other times a permit,and more often than not they're a little bit of each.This does not make the legislative bill writers happy,but does keep the lawyers busy and well fed.This article is your cliff notes on dispelling the mysteries and multiple personalities of the ubiquitous site specific rezone.Once you've digested its contents,you will be able to amaze your friends at cocktail partiesi with your in-depth knowledge.Or you can just toss this article into an agenda packet as background material for those times your city council or planning commission is considering a site specific rezone. A Site-S�ec^f^c ��ez��n� ����t b� Adopted b�� Ordinance b�� the �~^t�� �~��unc^U ^ . " x - - x - AKsitespecificrezones for cities must be adopted by ordinance adopted 6va city council. Ordinances are by definition legislative.They can only be adopted by a city council.Zoning maps are required by the Growth Management Act,chapter 36.70A RCW,and all other city planning enabling legislation to be adopted by ordinance.You can only amend an ordinance by another ordinance.Soif you want to amend a small piece ofyour zoning map(i.e.approve a site specific rezone),it must be approved by ordinance,which must be done by your city council. Planning commissions and hearing examiners can make recommendations on site specific rezones,but the final decision must be made 6v the city council. Most people get this.What's not so apparent is that the courts have also ruled that planned unit developments (PUDs)that authorize the approval of densities and uses that are'inconsistent with underlying zoning requirements are themselves considered zoning map amendments2.As zoning map amendments,they must be adopted by ordinance and approved by the city council.A lot of cities don't get this and have PUD review processes that don't involve ordinances or the city council. S^te-*%K�V��'f'K� ��U���K�U���� ���u� «�U�&~^��ct t�� ��4���^���� �~K^t4��^�� U���o�U� if »��V�� �~^tY� Hasn't. " ^ Adopted Any n �The first hint of trouble inthe itbno boxing process is that the courts will apply review criteria tosite � specific rezones whether the city has adopted some or not.Many city codes, prior to the 1990s,had nn � review standards for site-specific rezones.The codes would simply provide that the planning commission was to � make recommendations on site-specific rezones and the city council adopted them by ordinance.The code didn't ^ say anything about under what circumstances the rezones should be approved.With some justification,cities simply believed that site specific rezones were purely legislative acts and no standards were necessary. The courts,however,disagreed.They ruled that a site specific rezone was subject to review standards,regardless of whether or not a city had adopted their own.The courts require that the proponents of a rezone must establish that conditions have substantially changed since the original adoption and that the rezone must bear a substantial relationship to the public health,safety,morals or welfard. If a rezone implements the comprehensive plan,a showing that a change of circumstances has occurred is not required. So even if your city code has no standards for consideration of site specific rezones,you still have to meet the standards imposed by the courts. Be sure those standards are addressed in the findings and conclusions of your final decision. A S^te-S����K�^f^c K�4�����U��� U� ��U�K�^U�ct t�� tU�4� ��K�K�4�GkraU�cV� ��f F�^KU�4��� �������r^U�4� " " �� _' Doctrine Site specific rezones are quasi judicia[4,whichmeansthey are subject to the appearance of fairness doctrine. For the ' uninitiated,the appearance of fairness doctrine requires hearings to appear to be fair so that the public can have faith in an impartial permitting process.It's beyond the scope of this article to get into the issue in any detail,but to keep it simple let's just say that there are scores of court opinions involving situations where land use decisions are thrown out because the review process didn't appear to be fair.For this reason,when you hold a hearing on a site specific rezone you can't participate as a decision maker if there's anything about you that could appear to be biased and you're not allowed to discuss the application outside of the public hearing. Why is this odd? Because just about any other hearing regarding the adoption of an ordinance is not considered quasi-judicial.AR text amendments to a comprehensive plan or zoning code,as well as any"area-widd,rezones are not quasi-judicial because those decisions are considered iegiulati'-S You can beas biased as you want(excluding some instances of self-interest like bribery)and talk as much as you want to anyone you want outside the hearing process. Even more confusing,a comprehensive plan map amendment to a parcel of property is not subject to the appearance of fairness doctrine even though a site specific rezone for exactly the same parcel is quasi-judicial.The comprehensive plan map/site specific zoning map amendment dichotomy on the appearance of fairness highlights the most dysfunctional depths of the multiple personality of a site specific rezone. Site Specific Rezones Must Be Decided within 120 Days and are Limited to One Hearing You can only hold one public hearing on a rezone and you have to issue a final decision within 120 days of the filing of a complete application.The reason is that the Regulatory Reform Act,chapter .definesapnqect permit application to include a site specific rezone-6 and project permits can only be subject to one public hearing and a final decision must be issued within 120 days of the submission of a complete applicationT SuK���r^��� �~��K��t� h��&� E��U��^���� U��^���^��^KD� ��� ������^��� �kKDK�e��Us ��f ��^�&� . ~ " � _ - o �The Land Use Petition Act(,UJpA.). governs the judicial appeal of at[site specific nezonesa � This isa big deal because decisions subject to LUPA are appealed to superior court and the courts can toss those � decisions out ifan appeal isn't filed within 71 days of issuance cf the decision.All other amendments to zoning and � comprehensive plans including area-wide rezones,have to be appealed to the Growth Management Hearings Board � instead of superior court.You get 6O days to file that appeal. � �~�� ���U���� ��� ,��� �kn�K�roM�� GX «���^ «�K���^�'� ����^�U�o� : The Courts~~ Make "~~~" "��°� ~°"=~ Specific "°°�~~ ~ The courts can make you approve a rezone that your city denied,or deny a rezone that your city approved.0PA gives the courts the authority to reverse or remand any[and use decision and as previously discussed,site specific rezones are subject to LUPA.This is in stark contrast to at[other comprehensive plan and zoning code amendments. As noted previously,those amendments can only be appealed to the Growth Management Hearings Board.The Board has no authority to require a city to approve a proposed amendment.All they can do is invalidate or remand amendments. Although site specific rezones behave very much like permit applications when it comes to judiciat review,there are still some vestiges of its legistativeness given some respect by the courts.In a decision issued in 2011,2,the state supreme court recognized that it should give deference to the Growth Management Act policy choices made in a site specific rezone decision.This type of deference would probably not be granted for any other type of permit application,because the objective of all other types of[and use permitting decision is to implement Growth Management Act policy choices that have already been made.That policy deference recognizes that there is still a bit of legislating going on when a site specific rezone is under consideration. Bad Site «%KDec^f^c Rezone Decisions are Not Subject to 64.40 or Section ��%�� U� "°=� Damages just when you get to the point where you're thinking that it's just a fluke that site specific rezones are adopted by ordinance and that they're really permit applications,they act just like legislation when it comes to permitting liability, At least sometimes. Probably the two most common sources of permitting liability are"64.40"and"Section 1983 claims" A"64.40" claim derives from RCW 64.40.010,which provides that a city will be held liable to owners of property for decisions on"an application for a permit"that are arbitrary,capricious,unlawful or exceed[awful authority.The courts recently ruled that a site specific rezone is not"an application for a permit"so 64.40 doesn't applyM. A"Section 1983 claim"refers to a cause of action filed under 42 USC Section 1983.This federal statute allows ptaintiffs to recoup damages against municipalities for violating their federal constitutional rights when that municipality is acting under color of state law.One of the key elements to a Section 1983 claim is that the municipality must have infringed upon a protected federal constitutional right.Our state supreme court ruled a few years ago that one of those protected federal rights under the due process clause is to have a permit application pnocessedunderthetawsthatvveveinpffectwhenacornpieteappUcationwasfiied11.i.e.ifthepernmitappUcation meets applicable permitting criteria,the permit holder has a due process right to have that permit approved.The courts recently ruled that applicants do not have a federal due process right to have a rezone application approved even if it meets local rezone criteriaL2.This is because a rezone applicant isn't seeking to have a permit processed under the laws in effect;the applicant is seeking to change those taws(i.e.the zoning map). In essence,a site specific rezone isn't subject to Section 1983 damages because it fits in the legislative as opposed to permitting box. 7 �Does this mean you can deny rezones with impunity?Absolutely not.There are other limited circumstances inwhich � you can still be held liable.Most ifa rezone meets your code criteria and the applicant makes it known toyou � that heor she has some purchasers for the property ready to write a check once the rezone is approved,you could be � held liable for denying the application under"tordous interference with abusiness Courts often find � some way to make cities pay when they act in disregard of their permitting requirements.Also,as discussed inthe � next section,if it's a really bad decision the courts will reverse your decision anyway. � �� Condition.=� ��� ==���uU~.on a Rezone Like any other permit,you can condition a rezone.That's probably best done through the execution ofa development agreement13.Unlike for a typical permit however,rezone conditions are usually a very bad idea.Typical permit conditions just govern how a specific development is to be constructed and then they disappear,except perhaps with some limitations on the operation of the development.Even under the tatter circumstances,those conditions wit[disappear when the development project disappears(burns to the grounds,stops operating,etc.). Rezone conditions,however,linger.Since they usually address how property is to be used,they outlast whatever development the property owner initially had in mind and then show up 30 years later when they make absolutely no sense given how the property and the vicinity have developed.Just ask any 50+year old city attorney about what they think of rezone agreements.They'll have fonder memories of their colonoscopy. 1.Do people still actually hold cocktail parties?I wouldn't know.No one has ever invited me for some reason. 2.See ^ 83VVn.3dS66.6ZOR2d1]74(197 `Mount j�room,37VVn.App. 214.218. 679P3d4OS (1984); -Skagit Cdunt)�- 37VVn.App.I9S.298.68O P2d439 (1984); Citizens for �Mount'Vernon City of Mount Vernon,133- 2d8-1.874.947P2d1308(1997). 3.See - - T.�Ier,1O5VVn.App.1OI111 (3OD1). 4.See Smith v.SkagiLQyNy,75VVn.3d715(1969) 6.Technically,the site-specific rezone must be"authorized by a comprehensive plan or subarea ptan"to qualify as a project permit.See --~ -~6.70B.020(4). ISee 3 1). B.See 2); 2.See Phoenix Development v, Woodinville,171VVn.2d8I0 (2 } 1). 10. Mamna Funding, LL[ukittitas County,395Pgd1197(203). 11 134VVn.2d947(1992). 12.Manna Funding,LL[u6Jttitas County,29SP3d1197(2O13). ^~.=-See^-_--'-_.~_~.70 �~ MRS[isa private nonprofit organization serving 6ocn/govennnnents/n Washington State. Eligible government agencies in Washington State may use our free,nne-on-oneAsk MRSCservice to getanswers to legal,policy, or financial questions.