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HomeMy WebLinkAbout05/03/2016 07 Powerhouse Villas Development Agreement with DMF Investments, Inc. �• rTh \} BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 7. For Meeting of: May 3, 2016 ITEM TITLE: Public hearing and resolution on the proposed Development Agreement for Powerhouse Villas located in the vicinity of Powerhouse Road and 28th Avenue SUBMITTED BY: Joan Davenport, AICP, Director of Community Development Trevor Martin, Associate Planner (509) 575 -6162 SUMMARY EXPLANATION: William Frodsham, on behalf of DMF Investments Inc., submitted a development agreement for Powerhouse Villas, a 43 lot multi - family residential master planned development located in the vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues. This master planned development and plat received preliminary approval on January 19, 2016, by the Yakima City Council. The Development Agreement codifying all conditions of approval of the master planned development and plat are now ready for Council's consideration and approval. ITEM BUDGETED: STRATEGIC PRIORITY: Neighborhood and Community Building i' APPROVED FOR SUBMITTAL Interim City Manager STAFF RECOMMENDATION: Adopt Resolution BOARD /COMMITTEE RECOMMENDATION: ATTACHMENTS: Description Upload Date Type ❑ Memo to Council _Powerhouse Villas _DevAgmt 4/15/2016 Coker Memo ❑ Resolution _Powerhouse Villas _DevAgmt 4/5/2016 Resolution ❑ Daelopment Agreement _Powerhouse Villas 4/5/2016 Backup Material �.. ■ +.� DEPARTMENT OF COMMUNITY DEVELOPMENT /// I I %% Planning Division P a n n n g 129 North Second Street Yakima, WA 98901 MEMORANDUM TO: Yakima City Council and Jeff Cutter, Interim City Manager FROM: Planning Division Staff SUBJECT: 5/3/2016 Council Agenda item "Public Hearing for Powerhouse Villas Development Agreement" Date: April 22, 2016 On May 3, 2016 the City Council will conduct an open record public hearing regarding the Development Agreement for the Planned Development now known as Powerhouse Villas located in the vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues. BACKGROUND DMF Investments submitted a development agreement for Powerhouse Villas Planned Residential Development, a 43 multi - family lot Planned Development subdivision located in the vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues. This subdivision received preliminary plat approval on January 19, 2016 by the Yakima City Council (Resolution No. R- 2016 -012). During the preliminary long plat process, the City required Conditions of Approval that must be met before the Developer may submit their Final Plat for the proposed residential subdivision, and before the Developer may move forward with building homes. These conditions often include, building or bonding for roads, sewer, and water pipes, and most other infrastructure necessary to serve the homes. One of the Conditions of Approval for the Powerhouse Villas proposal is for a formal Development Agreement between DMF Investments Inc., the owner of the Powerhouse Villas development, and the City of Yakima. This project proposal includes private streets, which require a Development Agreement for the on -going maintenance. The components of a Development Agreement include, but are not limited to: identifying number of lots within the subdivision, lot sizing, phasing plan, setbacks, circulation of traffic, available common areas, and any aesthetic standards or restrictive covenants. The City of Yakima Planning Division has reviewed the submitted development agreement against the Hearing Examiner's Decision and RCW 36.70B.170, and found the development agreement in conformance with the terms and conditions of the Hearing Examiner's Decision and Yakima Municipal Code. ACTION NEEDED The City Council is tasked with processing the Development Agreement by taking one of the following Actions: • Approve the Development Agreement as written, and sign the Resolution authorizing the City Manager to enter into the Development Agreement with DMF Investments Inc. • Approve the Development Agreement with modifications specified in the City Council's Findings of Fact, and direct Staff to prepare written Findings and updated Resolution authorizing the City Manager to enter into the Development Agreement with DMF Investment Inc. • Reject the Development Agreement and outline specific revisions needed to finalize the Development Agreement into an approvable document. 2 RESOLUTION NO. R -2016- A RESOLUTION authorizing and directing the City Manager to execute a Development Agreement with DMF Investments, Inc., (here after "Developer") to provide for the terms and conditions of development of a preliminary plat and planned development to be located in the vicinity of Powerhouse Road and 28th Avenue, in the City of Yakima. WHEREAS, the City of Yakima (here after "City ") is a first class charter city incorporated under the laws of the State of Washington and has the authority to enact laws and enter into agreements to promote the health, safety, and welfare of its citizens and thereby to control the use and development of property within its corporate limits; and WHEREAS, the City has the authority to enter into development agreements with those who own or control property within its jurisdiction pursuant to RCW 36.70B.170- 36.70B.170, YMC Ch. 15.28.050 and YMC 14.10.010; and WHEREAS, pursuant to the Growth Management Act, RCW 36.70A, the City adopted its Yakima Urban Area Comprehensive Plan. Subsequently, the City has revised and updated this plan and has adopted, and continues to adopt, development regulations to implement the plan, including adoption of Yakima Urban Area Zoning Ordnances, which zoned the property Multi - Family Residential; and WHEREAS, Developer has obtained development rights for four parcels of approximately 12 acres on the northeast side of 3105 Powerhouse Road, Yakima, Washington (the "property "). The property is legally described as follows: Lots 1, 2, 3 and 4 of Short Plat recorded under Auditor's File Number 7879993, records of Yakima County, Washington. and incorporated herein; and WHEREAS, on July 24, 2015, DMF Investments Inc. submitted an application for a forty three (43) lot preliminary subdivision and planned development located north west of Powerhouse Road and to the west of N 28 Avenue, (the "Project "); and WHEREAS, on September 2, 2015, the City issued a Notice of Application and Environmental Review for the Project; and WHEREAS, the specific proposed use of the property identified by Developer is that of a multi - family residential master planned subdivision; and WHEREAS, Developer intends to take appropriate steps to comply with environmental and land use requirements related to development of the property; and WHEREAS, the City Planning Division conducted environmental review of the Project under the State Environmental Policy Act ( "SEPA ") and issued a Final Determination of Nonsignificance ( "DNS ") on the Project on October 13, 2015; and WHEREAS, on November 12, 2015, the Hearing Examiner held an open record hearing in consideration of the Project; and WHEREAS, on November 27, 2015, the Hearing Examiner issued his land use recommendation proposing that the Project be approved subject to conditions; and WHEREAS, on January 19, 2016, after notice duly given according to the requirements of the City of Yakima Municipal Code, the City Council held a closed record public hearing and adopted the recommendation of the Hearing Examiner, and directed the City Legal Department to prepare appropriate legislation to approve the preliminary plat and planned development subject to the obligation of the Developer to enter into a development agreement with the City to implement the conditions set forth in the Final Decisions; and WHEREAS, this Agreement is intended to satisfy the obligations as set forth in the Final Decisions for the execution of a development agreement between the Developer and the City to implement the conditions set forth in the Final Decisions; and WHEREAS, the City has determined that the Project is a development for which this Agreement is appropriate, and desires to enter into this Agreement. This Agreement will, amongst other things, implement the conditions in the Final Decision, eliminate uncertainty over development of the Project, provide for the orderly development of the Project consistent with the City's current Comprehensive Plan and zoning for this Property, mitigate environmental impacts, and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached and incorporated Development Agreement. The Yakima City Council, after a duly noticed public hearing, has determined that execution of this Agreement furthers the public health, safety and general welfare, and that the provisions of this Agreement are consistent with the Comprehensive Plan and applicable development regulations. ADOPTED BY THE CITY COUNCIL this 3rd day of May, 2016. ATTEST: Avina Gutierrez, Mayor City Clerk DEVELOPMENT AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON, AND DMF INVESTMENTS, INC. THIS DEVELOPMENT AGREEMENT ( "agreement ") is entered into between the City of Yakima, a Washington municipal corporation ( "City "), and DMF Investments, Inc., a Washington Corporation ( "Developer "). WHEREAS, the City is a first class charter city incorporated under the laws of the State of Washington and has the authority to enact laws and enter into agreements to promote the health, safety, and welfare of its citizens and thereby to control the use and development of property within its corporate limits; and WHEREAS, the City has the authority to enter into development agreements with those who own or control property within its jurisdiction pursuant to RCW 36.70B.170- 36.70B.210, YMC 15.28.050 and YMC 14.10.010; and WHEREAS, Developer has obtained development rights for four parcels of approximately 12 acres on the northeast side of 3105 Powerhouse Road, Yakima, Washington (the "property "). The property is legally described as follows: Lots 1, 2, 3 and 4 of Short Plat recorded under Auditor's File Number 7879993, records of Yakima County, Washington. and incorporated herein; and WHEREAS, Developer is proposing a 43 lot subdivision and creation of a planned development with certain amenities for the property; and WHEREAS, Developer intends to take certain steps to comply with environmental and land use requirements related to development of the property; and WHEREAS, pursuant to the Growth Management Act, RCW 36.70A, the City adopted its Yakima Urban Area Comprehensive Plan. Subsequently, the City has revised and updated this plan and has adopted, and continues to adopt, development regulations to implement the plan, including adoption of Yakima Urban Area Zoning Ordinances, which zoned the property R -3 Multi- family Residential District; and WHEREAS, the parties intend this agreement to guide the current and future uses of the property; now, therefore, IN CONSIDERATION OF mutual benefits, the parties agree as follows: 1. The proposed development. Developer's proposal for the property is hereby acknowledged and warranted to be for the purpose of constructing a residential subdivision and planned development. Developer specifically acknowledges and warrants that the proposal for the property is construction of not more than 43 multi - family structures on separate lots together with accompanying amenities. The Developer's preliminary plat/planned development application has been filed with the City. It has been reviewed and recommended for approval by the Yakima Urban Area Hearing Examiner to the Yakima City Council in the form of a Hearing Examiner's Recommendation dated on November 27, 2015, and incorporated herein by this reference as if set forth in full. The said subdivision and planned development is referred to herein as the "proposed development." 2. Conditions of approval. Developer agrees to abide by the terms and conditions of approval recommended by the Hearing Examiner, including construction of all infrastructure described on the preliminary plat/planned development site plan map and incorporated herein by this reference as if set forth in full, including as the same may be revised to conform with conditions of approval set forth in the Hearing Examiner's Recommendation. Developer agrees that the use of the property pursuant to this agreement shall be consistent with the project description identified in the Washington State Environmental Policy Act Determination of Nonsignificance issued by the City of Yakima on October 13, 2015, and incorporated herein by this reference as if set forth in full (the "DNS "). Developer agrees to abide by the mitigation and other requirements identified as a part of the DNS. Developer agrees to abide by the conditions of such further or additional land use permits or approvals as may be identified in the DNS, or as may otherwise be required by applicable federal, state, and local law including but not limited to the City's Title 12 and all other applicable development standards, all as the same currently exist or may be hereafter amended; provided, however, that the procedures and substantive rules of the City's Master Planned Development ordinances, as codified at Ch. 15.28. Yakima Municipal Code as it existed as of the date of this agreement and incorporated herein by this reference, shall guide and control all matters related to said ordinances and to the planned development aspect of the proposed development until this agreement terminates as provided elsewhere herein. Developer agrees to make future applications or submissions as may be necessary to fully implement any phased review of the proposed development and any specific project proposed therein. 3. Developer's Compliance. Developer agrees to abide by all such conditions as identified as a part of the Developer's Home Owner's Association and Declaration of Covenants, Conditions and Restrictions for the proposed development and incorporated herein by this reference as if set forth in full. 4. Appeals. In the event that any of the permits or approvals associated with the proposed development, including but not limited to SEPA determinations, preliminary plat, or planned development approval, are or may be appealed, then in that event the City' s obligations under this agreement, and under the above - referenced development entitlements, shall be suspended, and may be terminated in whole or in part to the extent that the City reasonably believes necessary to maintain consistency between this agreement (and /or the above - referenced development entitlements) and the conclusion of any appellate proceedings associated with the proposed development. Developer agrees not to appeal any of the previously required permits or approvals associated with the proposed development, including but not limited to SEPA determinations, preliminary plat, or planned development approval. 5. Default/Notice. No party shall be in default under this agreement unless it has failed to perform as required for a period of 30 days after written notice of default to the other party. Each notice of default shall specify the nature of the alleged default and the manner in which the default may be cured satisfactorily. The party not in default under this agreement shall have all rights and remedies provided by law or equity, including without limitation, damages, specific performance or writs to compel performance or require action consistent with this agreement. 6. No third party beneficiary. This agreement is made and entered into for the sole protection and benefit of the parties hereto and their successors and assigns. No other person shall have any right of action based upon any provision of this agreement. 7. Third party legal challenge. In the event any legal action or special proceeding is commenced against the City by any person or entity other than a party to this agreement to challenge this agreement or any provision herein, including any of the permits, approvals, or entitlements associated with this agreement, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer. In such event, Developer shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to reasonable attorneys fees and expenses of litigation and damages awarded to the prevailing party or parties in such litigation. The Developer shall not settle any such tendered lawsuit without the consent of the City, which consent shall not be unreasonably withheld. 8. Term. This agreement shall continue in force for a period of thirty (30) years unless extended or terminated as provided herein or when the property has been fully developed, whichever first occurs, and all the Developer's obligations in connection herewith have been satisfied in the sole reasonable discretion of the City. Provided, however, that termination of this agreement shall not affect any of Developer's obligations to comply with the Yakima Urban Area Comprehensive Plan, any applicable zoning, subdivision, or other municipal codes, or any land use entitlements approved with respect to the property or proposed development. Termination of this agreement shall not affect any of Developer's obligations herein which expressly or by implication are to continue after the termination of this agreement; notwithstanding the generality of the foregoing, the parties expressly agree and covenant that the streets within the proposed development shall be required to be private and shall never be accepted by the City of Yakima as public streets. 9. City's reservation of rights. The parties intend this agreement is interpreted to the full extent authorized by law as an exercise of the City's authority to enter into development agreements pursuant to RCW 36.70B.170. Provided, however, that this agreement shall be construed to exclude from its scope and reserve to the City the authority which is prohibited by law from implementation by mutual agreement with consideration of parties acting under Ch. 36.70B RCW. Without limitation, this shall include the right of the City to impose new or different conditions on the property to the extent required by stormwater development standards and any serious threat to public health and safety. Developer acknowledges that any phased approach to developing the proposed development contemplates and requires the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of additional permit applications under SEPA and other applicable law. Nothing in this agreement shall be construed to limit the authority or the obligation of the City or any of its officials or officers in complying with or applying applicable law during review of specific project proposals or other subsequent phases of the proposed development. 10. Developer's warranties and representations. Developer represents and warrants to City that Developer has a property interest in the property, and that the covenants and obligations of Developer in this agreement and in the permits, approvals, and entitlements associated with this agreement and the proposed development do not violate or constitute a default under or breach of any agreement between Developer and any third party by which Developer is bound. Developer represents and warrants to City that Developer is fully authorized to enter into and perform its obligations under this agreement. Developer represents and warrants to City that there is neither pending nor, to the knowledge of Developer, any threatened legal action, arbitration or administrative hearing before any governmental authority to which Developer is a party and which could enjoin or restrict Developer's right or ability to perform its obligations under this agreement. 11. Modification of an approved master planned development overlay. Modifications to the adopted master development plan and /or development agreement may be requested from time to time. Minor modifications will undergo Type (1) review as defined in YMC Chapter 15.13. The administrative official shall review modifications to adopted master development plan and /or development agreement as a minor modification if it has been determined that: 1. The amendment does not increase the areas identified for any particular land use or increase the residential density approved in the master plan; 2. The amendment does not increase the total area of nonresidential uses by more than five percent; 3. The amendment does not materially change the type and character of approved uses; 4. The amendment does not materially change parking or traffic circulation within the development; 5. The amendment does not materially change setbacks, buffers, landscaping, shoreline, critical areas, or other mitigation measures; 6. The amendment does not materially impact the overall design of the approved master plan; and 7. Other similar changes of a minor nature proposed to be made to the configuration, design, layout or topography of the master planned development which are deemed not to be material or significant in relation to the entire master planned development and are determined not to have any significant adverse effect on adjacent or nearby lands or the public health, safety or welfare. Major modifications will undergo Type (3) review as defined in YMC Chapter 15.15 and shall be referred to the hearing examiner in accordance with YMC 15.15.040. A "major modification" shall be any modification to an approved master development plan or development agreement that is deemed to be more significant than a "minor modification" as described hereinabove. 12. Vesting: The master planned development review shall he vested to development regulations, standards, conditions, and laws applicable at the time the development agreement is recorded, inclusive of specific conditions and standards set forth in said Development Agreement to the extent it complies with applicable Washington law. The vesting period shall be for the "Term" as stated in the development agreement and shall be agreed upon by the parties to the Development Agreement after giving consideration to the extent and complexity of the proposed development as well as specific development planning considerations raised by the developer. 13. Severability. If any provisions of this agreement are determined to be unenforceable or invalid pursuant to a final decree or judgment by a court of law or tribunal with jurisdiction, then the remainder of this agreement not decreed or adjudged unenforceable or invalid shall remain unaffected and in full force and effect. 14. Agreement to be recorded. This agreement may be modified only by written agreement of the parties hereto. This agreement or a memorandum thereof shall be recorded against the property as a covenant with the land which touches and concerns the property and shall be binding upon the City and Developer, their heirs, successors and assigns, and all future owners of the property. Developer shall be responsible for the costs of recording. 15. Agreement approval. This agreement may only become effective upon execution by the City of Yakima following adoption of a resolution approving the same following a public hearing in compliance with Ch. 36.70B RCW. 16. Entire agreement. This agreement constitutes the entire agreement of the parties and incorporates all prior discussions and agreements. AGREEMENT DATED this day of , 2016. CITY OF YAKIMA DMF Investments, Inc., a Washington Corporation By: By: Jeff Cutter William Frodsham Interim City Manager President ATTEST: Sonya Claar Tee City Clerk STATE OF WASHINGTON ) ) ss. County of Yakima ) I certify that I know or have satisfactory evidence that Jeff Cutter, personally appeared before me, signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the City Manager of the City of Yakima, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: , 2016. Notary Public Residing at Commission expires: STATE OF WASHINGTON ) ) ss. County of Yakima ) I certify that I know or have satisfactory evidence that William Frodsham, personally appeared before me, signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the President of DMF Investments, Inc., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: , 2016. Notary Public Residing at Commission expires: