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HomeMy WebLinkAboutCity Council Committees - Planning and Economic Development Committee - 03/05/2000 PAM MOTTRAM %-* V1CTX PLANNING Jim White, Mayor PLANNING COMMITTEE AGENDA This is to inform you that the City Council Planning Committee will meet in Council Chambers East, Kent City Hall, 220 4`h Ave. S., at 5:00 PM on Monday, March 6, 2000. Committee Members: Tom Brotherton, Chair Judy Woods Tim Clark Action Speaker Time 1. Approval of Minutes of February 7, 2000 •2. Urban Separator Countywide Planning Policy YES Fred Satterstrom 10 minutes Attachment: Minutes of February 7, 2000 The Planning Committee meets the first Monday of each month at 5:00 PM in Chambers East, Kent City Hall, 220 4" Ave. South. For agenda information please call Jackie Bicknell at (253) 856-5712 ANY PERSON REQUIRING A DISABILITY ACCOMMODATION SHOULD CONTACT THE CITY CLERK'S OFFICE AT(253)856-5725 IN ADVANCE. FOR TDD RELAY SERVICE CALL THE WASHINGTON TELECOMMUNICATIONS RELAY SERVICE AT 1-800-833-6388. S o Well > t P�}�l(a��q�� g couwdttee - 316 V w r .l i :. COUNTYIM, DE L N IN POLI C, CnTEx To reconmend the Ply rAmmiftee direct the Planning Departenent 660� 4 �:'dis+cussion*with King Cotes rift' pommy in�orde�'to clarify the inert and Policy on local land use do"*F1.0nawng -1h } e i i a. f�4tf r �z r CITY OF , .I Jim White, Mayor --�_t NV ICTA Planning Department (253) 856-5454/FAX(253) 856-6454 James P. Harris, Planning Director STAFF REPORT March 6, 2000 TO: TOM BROTHERTON, CHAIR AND PLANNING COMMITTEE MEMBERS FROM: FRED N. SATTERTSROM, PLANNING MANAGER RE: "URBAN SEPARATOR" COUNTY-WIDE PLANNING POLICY On February 15, 2000, the City Council voted to table two annual plan amendment applications. These two applications were the Caimes amendment (#CPA-99-3A) and the Pacific Industries amendment (#CPA-99-3D). Both of these amendments are located in areas designated as "urban separator" and may be affected by County-wide planning policies related to such designation. Due in large part to their designation as urban separator, the Land Use & Planning Board recommended denial of both proposed plan amendments. The City Council tabled action on these amendments in order to allow time for the Council's Planning Committee to review the urban separator issue and the impact of such a designation on the City's ability to make land use . planning decisions on such lands. Background: All comprehensive plans of cities in King County are required to be consistent with the County- wide planning policies adopted by King County and ratified by the cities. By resolution (#1413), the City of Kent ratified the county-wide planning policies in 1994. These policies were to provide "county-wide framework from which local comprehensive plans were to be developed." One of the county-wide planning policies called for both the County and the cities to implement a land use policy, which would protect "urban separators." Although urban separators were not designated on any maps adopted with or referenced in the county-wide planning policies, by inference this designation referred to areas denoted on the King County Comprehensive Plan Map an "urban separator". The specific policy in the county-wide planning policies that dealt with urban separators is LU- 27. This policy states: Urban separators are low density areas or areas of little development within the Urban Growth area. Urban separators shall be defined as permanent low-density lands, which protect adjacent resource lands, rural areas, and environmentally sensitive areas and create open space corridors within and between urban areas, which provide environmental, visual, recreational, and wildlife benefits. Designated urban separators shall not be re-designated in the future (within the 20 year planning cycle) to other uses or higher densities. The maintenance of these urban separators is a regional as well as a local concern. Therefore, no modification should be made to the development regulations governing these areas without King County review and concurrence. "04th AVI.. SO- /F1.V I %A \SIIIA(,R)S Ov) 11-.I.1,11[10A1:_ Urban Separator County-Wide Planning Policy March 6,2000 Page 2 The King County Comprehensive Plan also contains policy pertaining to the urban separator designation. This policy helps to clarify the definition and purpose of such a designation while encouraging the continuation of low-density development. No specific density limit is mentioned in the County's plan, but King County zoning limits development to one per acre. It should be noted that King County is presently in the process of updating its comprehensive plan and a specific one-unit-per-acre density limit is being suggested for urban separators. Analysis: Attached to this memorandum is a legal analysis prepared by the Kent City Attorney's office on the implications of county-wide planning policy LU-27 on the City's comprehensive planning process. This report was completed after the deliberations of the Land Use & Planning Board and, therefore, was not available to them at the time of public hearings on proposed plan amendments. The conclusion of the legal analysis is that the urban separator policy (LU-27) goes beyond being a framework policy statement by establishing a substantive direction and/or implementing regulation. Therefore, it impinges upon the City's authority to make its own local land use decisions. Alternative Actions: Given the opinion of the City Attorney's office, there are a number of options open to the Council, including: 1. Despite the implications of LU-27 for local land use decision-making, accept it as a valid framework policy statement. 2. Ignore the policy and, based on the City's legal analysis, make future decisions on plan amendment applications in these areas on a case-by-case basis. 3. Seek to change the county-wide policy to allow local discretion on the actual designation and character of urban separators. With two comprehensive plan amendments currently in abeyance pending the resolution of the urban separator issue, it may be difficult for the City Council to consider this issue without considering the merits of the applications. But, this issue is broader than these two applications. Urban separators envelope the eastern part of the City, from the area between Auburn and Kent on the south, north along Soos Creek, and then west between Renton and Kent's potential annexation areas. (Staff will provide a map at the Committee's 3-6-00 meeting). Staff Recommendation: Staff recommends the Planning Committee direct the Planning Department to initiate discussions with King County in order to clarify the policy intent and implications of the policy on local land use decision-making. At the same time, the Committee may also initiate a public process to solicit input on the policy. While this fact-finding process is occurring, the two plan amendment applications will be held in abeyance. Following conclusion of the public process and discussions with King County, the Planning Committee will make a recommendation to the full City Council on a specific course of action. FNS:pm P.adminAurbansep.doc Enclosure cc: James P. Barris,Planning Director Justin Osemene,Ass(.City Attorney • Memorandum PRIVILEGED AND CONFIDENTIAL TO: Jim Harris, Planning Manager Fred Satterstrom, Planning Manager Kevin O'Neill, Senior Planner CC: Tom Brubaker, Deputy City Attorney fl M: Roger A. Lubovich, City Attorney Justin C. Osemene, Assistant City Atto ey Implications of Countywide Planning Polic U-27 "Urban Separators" on the City's He: Comprehensive Plan Amendments in Newly Annexed Areas Date; January 20, 2000 This memorandum is in response to your request for an advisory legal opinion regarding the City's land use powers and its ability to implement comprehensive plan amendments in newly annexed, and prospective annexation, areas with an "urban • separator" land use designation under King County's LU-27 Countywide Planning Policy. BACKGROUND The presumed factual basis for this request is that in 1994 King County adopted and ratified the Countywide Planning Policies ("CPPs") which, among other things, called for both the county and the cities to implement a land use policy denoted as LU- 27: "Urban Separators." Urban separators are designated "low density" areas within the Urban Growth Areas ("UGAs") that are intended to create open space corridors, provide a visual contrast to continuous development, and reinforce the unique identities of communities.- These areas are expected to provide recreational benefits, such as parks and trails, and meet the state Growth Management Act's ("GMA") requirement for greenbelts and open space in the UGAs. Countywide Planning Policy LU-27 specifically provides that: Urban separators are low density areas or areas of little development within the Urban Growth Area. Urban separators shall be defined as permanent low density lands which protect adjacent resource lands, rural areas, and environmentally sensitive areas and create open space corridors within and between urban areas which provide environmental, visual, recreational and wildlife benefits. MEMORANDUM Fred Satterstrom, Planning Manager Kevin O'Neill,Senior Planner January 21,2000 Page: 2 Designated urban separators shall not be re-designated in the future (within the 20 year planning cycle) to other urban uses or higher densities. The maintenance of these urban separators is a regional as well as a local concern. Therefore, no modification should be made to the development regulations governing these areas without King County review and concurrence. (Emphasis added). I The county comprehensive plan also contains several policies pertaining to the urban separator areas. However, the county has not yet clearly defined pertinent aspects of the LU-27 policy, such as what constitutes low density in an urban separator area. It is, however, known that the county has developed a work program to clarify the definition of urban separators and to provide a clearer direction on the designation of these urban separators. The status of this work program is uncertain at this time. CPPs are requited under the GMA. RCW 36.70A.210, which outlines the purpose and process for'CPPs, states in pertinent part that: [A] `county-wide planning policy' is a written policy statement or statements used solely for establishing a county-wide framework from which county and city comprehensive plans are developed and adopted pursuant to this chapter. This framework shall ensure that city and county comprehensive plans are consistent as required in RCW 36.70A.100. Nothing in this section shall be construed to alter the land-use powers of cities. RCW 36.70A.210(l) In 1994, when the City adopted its GMA mandated comprehensive plan, there were no urban separator areas within its designated UGA. There were, however, CPP designated "urban separator" areas with the City's identified Potential Annexation Areas ("PAA"). With the absence of designated urban separator areas in its UGA, the City did not develop, nor was it required to develop, any specific policies for such urban separator areas. Subsequently, in 1996, the City annexed and effected comprehensive plan and zoning map amendments of the first areas in its PAA with designated urban separator areas (the Meridian and Meridian Valley Annexation). When the City annexed the areas, some of these urban separator areas were given higher single-family zoning densities. At the time of the Meridian annexation, City staff was not aware that one of the CPPs precluded higher densities for these areas in perpetuity. Notice of the annexation was, however, served on Kin,g County, as required by state law, and the county did not oppose, nor object, to the proposed higher densities for the parts of the annexed areas in the urban lei separators. �tFMo�;��ouM Fred Satterstrom, Planning.Manager Kevin O'Neill,Senior Planner January 21,2000 Page: 3 The catalyst for this legal analysis is that as part of the City's 1999 annual comprehensive plan amendment process, Planning staff recommended comprehensive plan and zoning amendments of two lots in a newly annexed area within the designated urban separators which, under the King County comprehensive plan, call for one dwelling unit per acre. The first of the two proposed plan amendments was for a 1.18 acre lot proposed to be subdivided for 2 single family dwelling units (Carnes), and the second was for an 8.6 acre lot with a proposal for 4.5 single family dwelling units (Pacific Industries). Each of these lots abuts areas designated as urban separator areas under the CPP-LU-27. Planning staff s recommendation on these two applications was subsequently rejected by the Land Use and Planning Board ("LUPB") due to some citizens testimony that the proposed higher single-family zoning densities are incompatible with the one dwelling unit per acre designation under the county's comprehensive plan. The LUPB's rejection of Planning staffs recommendation, may have been in part, due to the obvious confusion regarding whether the City has the land use powers to change the permissible density standard on lots with a designated "urban separator" area which, under the county's low-density designation, only allows for one dwelling unit per acre. While the members of the LUPB may have been influenced by the sheer number of the public testimonies received against the two comprehensive plan amendment applications, it appears there was confusion on what constitutes a "low density" standard and whether the City is obligated to adhere to the county's one dwelling unit per acre density standard for the urban separator areas even when these areas have been annexed into the City's jurisdiction. The purpose of this legal analysis, therefore, is to examine the effect and implication of LU-27 requirement on the City's ability to assert its land use powers in implementing comprehensive plan amendments in newly annexed, and prospective annexation, areas with urban separator designation. QUESTIONS PRESENTED 1. Whether a specific policy within the CPPs, such as the restrictive language of LU-27, can directly affect and inhibit the regulatory and implementation powers, or other exercises of land use powers of the City, when the City decides to amend the permissible development density standards in its newly annexed areas from the county; and 2. Whether the CPPs on urban separators, which require a low density designation of one dwelling unit per acre and prohibits "future redesignations to other urban uses or higher densities," infringes upon the City's affirmative duty, under the GMA, to plan for and accommodate its allocated share of the regional growth while retaining its land use powers i MEMORANDUM Fred Satterstrom, Planning Manager Kevin O'Neill,Senior Planner'. January 21, 2000 Page: 4 to locate, configure, design and service such anticipated regional growth and development. BRIEF ANSWERS 1. No, a specific policy within the CPPs cannot provide substantive direction that directly affects the provisions of implementing regulations of a city's land use power. RCW 36.70A.210 provides that the CPP is "a written policy statement or statements used solely for establishing a county-wide framework from which county and city comprehensive plans are developed and adopted . . ." and that "[n]othing in this section shall be construed to alter the land-use powers of cities. " (Emphasis added). Under an established three-prong test, a specific policy within the CPP must directly address the comprehensive plan rather than development regulations or other exercises of local land use power. 2. Yes, the countywide planning policy on urban separators, which prohibits j the future re-designation to other urban uses or higher densities, infringes upon the city's land use powers because fundamental to a city complying with a major tenet of the GMA in reducing sprawl is that city's land use element,; including its future land use map, permits appropriate urban-- densities throughout its jurisdiction. Furthermore, specific design standards and scales of development within a city are not legitimate regional;issues that fall within the ambit of countywide planning policies. ANALYSIS In the absence of any pointed judicial opinions on the two questions presented, deference would be given to the precedent rulings of the quasi-judicial Central Puget Sound Growth Manag$ment Hearing Board (the "Board") which, under the GMA, is charged to review and:;adjudicate issues raised by these questions. This is a two-part analysis based upon the questions presented and the Board's reviews, commentaries, and precedent rulings on related issues to these questions. Part I will examine the substantive effects of the CPPs on the City's comprehensive plan amendment, while part II will examine the land use powers of the City to redesignate the development densities for the areas within the City's UGA jurisdiction. I. A specific policv within the Countywide PlanninsZ Policies, such as King County's LU-27 on urban separators, cannot provide substantive direction that directly affects the provisions of implementing regulations of a City's land use power. Perhaps the most instructive opinion on the intricate, and sometimes confusing, relationship between King County adopted CPPs and a city's ability to exercise its land MEMORAN'DL.M Fred SanerStrOm, Planning Manager Kevin O'Neill,Senior Planner January 21,2000 Page: 5 use powers in implementing its comprehensive plan policy is the Board's ruling in City of Snoqualmie v. King County, CPSGMHB Case No. 92-3-0004(c), Final Decision and Order (FDO) (1993). In 1992, the cities of Snoqualmie and Issaquah ("Snoqualmie") filed a Petition for Review with the Board which challenged the CPPs for failing to comply with the GMA. Though tangentially pertinent to the question presented herein but still instructive, was a legal issue raised in this petition. The petition was on whether the county's adopted CPP, specifically King County's LU-26 and LU-271, lawfully required a city's local comprehensive plan to address its policies to specific community characteristics, including design standards and types of businesses or scale of development within the city. The Board, in resolving this and other legal issues raised in the Snoqualmie case, sought to clarify the purpose, nature, and effect of CPPs. Germane to the question presented herein is the third part of the Board's clarification; however, a cursory review of the first two will provide some guidance on the questions presented herein. In regards to the purpose of CPPs, as defined in RCW 36.70A.210(1), the Board states that there is both an immediate and a long-term purpose for CPPs. CPP's immediate purpose was to assure consistency among the comprehensive plans that the GMA required. The long term purpose of the CPPs was to facilitate the transformation of local governance in the UGA so that urban governmental services are provided by cities and so that rural and regional services are provided by counties. Id. at 6 - 7. In regards to the nature of CPPs, the Board notes that while opinions vary on the exact nature of CPPs, some people have claimed CPPs to be policies; meta-policy plans; comprehensive plans; regional plans; or simple guidelines, while others have argued that CPPs are procedural or have substantive effects. The Board, however, held: (a) that CPPs are policy documents, as opposed to land use regulations; (b) that CPPs are not comprehensive plans, rather they are a "framework" for the comprehensive plan; and (c) that the CPPs may be general or detailed, but should always be clear and cogent. See, Snoqualmie, at 9-10. Lastly, in regards to the effects of CPPs on the comprehensive plans, the Board notes that while CPPs certainly have a procedural effect in achieving the consistency requirement of the GMA, they also provide a substantive and directive relationship between the policies in the CPPs and the policies in the comprehensive plans of cities and counties. The Board further held that "the CPPs create no new land use powers, nor do they alter land use powers that presently exist; neither do they provide substantive direction directly to local land use regulations, but rather, that the CPPs are a part of a hierarchy of substantive and directive policy. The Board explains that direction flows first from the • t Note the distinction between the LU-27 referred to in Snoqualmie, which refers to refers to King County Comprehensive Plan Policy on rural communities, and the subject LU-27 on Urban Separators which refers to Countywide Planning Policy(CPP). MEMORANDUM Fred Satterstrom, Planning Mapager Kevin O'Neill, Senicr Planner; January 21,2000 Page: 6 CPPs to the comprehensive plans of cities and counties, which in turn gives substantive direction to the content of land use regulations, and that it is the latter that governs the exercise of local land use powers, including zoning, permitting and enforcement." Id. at 13. While noting that even with the hierarchy of policy described above, the GMA, generally, and the CPPs, specifically, are premised on local government control, the Board held that it is the local governments (cities and counties) that are vested with the authority and responsibility to act jointly to prepare, adopt, and implement the CPPs, and to act singly to prepare, adopt and implement comprehensive plans and development regulations. Id. The import of this holding on the question presented is that CPPs have directive, procedural, and substantive effects only as they relate to comprehensive plan policies, and not on the land use powers of cities to develop regulatory and implementation standards and guidelines for these policies. Perhaps the most pertinent aspect of the Board's holding in Snoqualmie is its review of the limits on the substantive effects of the CPPs on a city's comprehensive plan amendments. While noting that great deference must still be given to local prerogatives and choices under the GMA, and that policies within the CPPs that needlessly or excessively intrude upon local prerogatives can have no substantive effect, the Board states that, in order for is specific policy within a CPP to provide substantive direction to city and county comp>ehensive plans, such intrusion must meet all of the following enunciated three-prong test. The test states: (1) A specific policy within the CPPs must meet a legitimate regional objective. In noting that RICW 36.70A.100 requires coordination and consistency between the comprehensive plans of cities and counties if those cities and counties have "common borders or related regional issues" (emphasis added), the Board acknowledged that while "related regional issues" is not defined, RCW 36.70A.210(3) does, however, explicitly direct that CPPs must address, inter alia, urban growth areas, provisions of urban services, and affordable housing, and that these are directly related regional issues. The Board also went oil to note that RCW 36.70A.100 identifies the "common borders" of cities and counties as circumstances that could give rise to a need for coordination and consistency between comprehensive plans. In conclusion, the Board held that a specific policy within a CPP that addresses common border issues would meet legitimate regional objectives. I i Under this first gong of the test, in order for the City to negate the effect of LU- 27 on its land use powers and ability to propose changes to the density standards of its annexed areas with the urban separators, the City would have to assert that the restrictive language in the LU-27 policy conflicts with the City's GMA imposed duties to plan and development standards that would maximize the efficient use of urban services, to plan I i MEMORANDUM. Fred Satterstrom, Planning Manager Kevin O'Neill,Senior Planner January 21,2000 Page: 7 for future growth, and to encourage a more intensive development and diverse community in the City, since these enumerated duties are intended to promote and meet desired legitimate regional objectives. , (2) A specific policy within the CPPs can provide substantive directives only to the provisions of a comprehensive plans and cannot directly affect the provision of an implemented regulation or other exercise of land use powers. For this second prong of the test, the Board notes that RCW 36.70A.210 defines CPPs as "a written policy statement or statements used solely for establishing a county- wide framework from which county and city comprehensive plans are developed and adopted . . .," and that "[t]his framework shall ensure that city and county comprehensive plans are consistent as required by RCW 36.20A.100. Nothing in this section shall be construed to alter the land use powers of cities." See, Snoqualmie, at 14. The Board translated this definition to mean that CPPs may not intrude upon local prerogatives as to specifically how a legitimate regional objective, which must be addressed in a local comprehensive plan, is to be manifested in a local development regulation or other exercise of land use power (emphasis added). Id. The relevance of • this prong is that while CPPs may suggest details for such standards, they may not dictate them since the recommended comprehensive plan amendment and density standard clearly reflects the city's local circumstances and priorities. (3) A specific policy within the CPPs must be consistent with other relevant provisions of the GMA. Under this third prong of the test, the Board held that CPPs must be consistent not only with the provisions of RCW 36.70A.210, but also with all other relevant provisions of the GMA. The implication of this prong is the obvious conflict between the restrictive policy language of LU-27 and RCW 36.70A. 110(2). While the latter imposes an affirmative duty upon cities, including Kent, to designate lands within their urban growth areas that would permit for appropriate urban densities within its city limits, the former seeks to restrict and infringe upon the city's land use powers to plan and effect its desired development density which would implement its GMA adopted land use elements and comprehensive plan policies. Perhaps more telling of the Board's position on the question presented herein, is when the Board applied this three-prong test to one of the more pertinent legal issues raised in Snoqualmie. That issue was whether a county's adopted CPPs, specifically King County's LU-27, which required cities in rural areas to include, among other characteristics, shopping; employment; residential developments; and design standards %I EiNIORAN DUNI: Fred Satterstrom,Planning Nlainager Kevin O'Neill, Senior Planner January 21,2000 Page: 8 that work to preserve the rural small town character and promote edestrian mobility, was valid. In response to one of Snoqualmie's argument that LU-27 infringes upon a city's authority because "some aspects of a comprehensive plan are . . . fundamentally local in nature . . .," such as deign standards and scale of development, the Board, in acceding to Snoqualmie's arguments, held that adopted CPPs cannot dictate or select specific characteristics for a city to adopt in its comprehensive plan because specific design standards and scale of development within a city are not legitimate regional issues that should be addressed by the CPPs. See, Snoqualmie at 23. Based on the pmeding, it would be correct to state that the implication of the three-prong test enunciated by the Board in Snoqualmie, on the question of whether CPP LU-27 directly affects and inhibits the regulatory, implementation, and land use powers of the City, could be analyzed from two or more perspectives. First, Planning staff could assert and demonstrate(that the proposed comprehensive plan, land use and development density amendments of lots in the newly annexed areas with urban separators is strictly in furtherance of the City's adopted comprehensive plan policy, which aims for a more diversified single and multi-family residential developments in the City. Second, the Planning staff may assert that based upon the enumerated three-prong test, LU-27, as a specific policy within the CPPs, is inconsistent with the legitimate regional objectives of the GMA and the CPP$ objectives for the City which, inter alia, impose an affirmative duty on the City to plan for its allocated share of the anticipated regional growth, as well as to encourage development standards that would maximize the efficient use of urban services and a much higher development density and a more diverse community within the city. A further point to assert is that the CPPs' proscribed low density requirement is inconsistent with the city's policies and development standards for the annexed area because what constitutes low density in the urban separator areas has not been clarified under the CPP and does not conform with city's definition of low density under the its comprehensive plan policies and development standards. Finally, a compelling argument could be made that the'City properly exercised its statutory prerogatives on annexations and zoning authorities under Title 35 and 35A RCW if and when City Council decides to grant approval to the proposed comprehensive plan amendments with urban separators. It should, however, be prudent to anticipate counter arguments by the county to the preceding argument. For instance, the county may argue that the City endorsed the adoption of the CPPs and that as directive, procedural, and substantive tools of the GMA, the City is obligated to adhere to and implement these CPPs including the restrictive requirements of LU-27 on urban separators. While such argument may be facially valid, it would, however, be deemed flawed when critically examined under the Board's precedent rulings on such issue. It appears that the law would support the City's authority to assert its 'land use powers in proposing and adopting higher densities See Footnote I. MEMORANDUM. Fred Satterstrom,Planning Manager Kevin O'Neill,Senior Planner January 21, 2000 Page: 9 standards in areas with urban separators as long as steps are taken to ensure the overriding regional policy objectives of the CPP. II. Under the GMA cities have an affirmative duty to plan and accommodate the growth that their county allocates. However, the cities retain discretion as to how their growth will be located, configured, designed and served. The second question presented is whether LU-27's proscribed low density designation and its prohibition of future redesignation to other urban uses or higher densities of urban separator areas annexed into the City infringes upon the City's land use powers. While this question is answered in the affirmative, it is also important to note that this answer is based upon some affirmative statutory provisions of the GMA, such as RCW 36.70A.110(2) which reads, in pertinent part: [T]he urban growth areas (UGA) of the county shall include areas and densities sufficient to permit the urban • growth that is projected to occur in the county for the succeeding twenty-year period. RCW 36.70A.030(17) defines "urban growth" as: [G]rowth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources. RCW 36.70A.10(2) requires that UGAs "shall permit a range of urban densities and uses." Thus, based on the statutory provisions of the GMA, it is evident that the GMA creates an affirmative duty for cities to plan for and accommodate the growth that is allocated to them by the county's CPP. This duty also means that a city's comprehensive plan must include future land use maps that designate sufficient land use densities and intensifies to accommodate its allocated population and employment base. See, e.g., Hensley v. City of Woodinville, CPSGMHB Case No. 96-3-0031, FDO, (1997) at 9. The Board has, through several rulings and opinions, affirmed the notion that a city enjoys broad discretion in its comprehensive plan to make many specific choices about how growth is to be accommodated within its jurisdiction. These choices are said to include the specific location of particular land uses and development intensities, MEMORANDUM: Fred Satterstrom, Planning Manager Kevin O'Neill,Senior Planner January 21,2000 Page: 10 community character, sales of development and design, among others. See, Aagaard, et al. v. City of Bothell, CPSGMHB Case No. 94-3-0011 (1995); City of Edmonds and City of Lynnwood v. Snohomish County ("Edmonds"), CPSGMHB Case No. 93-3-0005, FDO, (1993) at 27; Association of Rural Residents v. Kitsap County, CPSGMHB Case No. 93- 3-0010 (1994) at 14. LO v. Woodway ("LMI"), CPSGMHB Case No. 98-3-0012, FDO, (1999). Perhaps one of'the most instructive rulings on the subject of what constitutes a permissible urban density is the Board's opinion in Bremerton, et al. v. Kitsap, CPSGMHB Case No. 95-3-0039, FDO, (1995) at 37-38. In a 1995 consolidated case filed by the City of Bremerton and others challenging several aspects of Kitsap County's CPP provisions, one iof which was to appropriate development densities within designated UGAs, the Board, in affirming its previous opinion in Aagaard, reiterated that the specific location, density/intensity, and development standards for accommodating growth within cities is subject to broad local discretion. (citation omitted). Specifically, in reviewing an argument that 1 acre and 2.5 acre lots are neither urban or rural, but instead are "suburban" and as such are permitted in a UGA by the GMA, the Board held that "suburban" is a subset of"urban" and that a pattern of 1 and 2.5 acre lots meets the GMA's definition of urban growth, which is to say that it precludes "the primary use of land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources." RCW 36.70A.030(17). However, the Board also noted that ai pattern of 1 or 2.5 acre lots is not an appropriate urban density either, and that absent persuasive and well documented justification of a unique area- wide circumstance (e.g a major equestrian facility surrounded by "horse-acre lots"•or large areas with very step slopes or wetlands), that an urban land use pattern of 1 or 2.5 acre lots would constitute sprawl. See, Bremerton, at 37-38. Noting that while at the low end of the range of permissible urban densities, it is difficult to draw a universally appropriate maximum urban lot size. The Board acknowledged that several sources in the literature and the experience of growth management-in other states strongly suggest that anything less than seven (7) dwelling units per acre is not supportive of transit objectives and anything less than four (4) per acre is sprawl. Given these variations, the Board resorted to adopt as a general rule a "bright line" that any residential density pattern of four (4) net dwelling units per acre or higher is clearly compact urban development and would satisfy the low end of the range required by the GMA. Id. at 38. The Board, thus;held that any new residential land use pattern within a UGA that is less dense and is not a compact urban development pattern, would constitute urban sprawl and, therefore, $hould be prohibited. It, however, made known that there are exceptions to this general rule, such as when 1 or 2.5 acre lots are configured to avoid excessive development j ressures on or near environmentally sensitive areas. In a later ruling, the Board amplified on this exception to the general rule by stating that when a MEMORANDUM: Fred Satterstrom, Planning Manager Kevin O'Neill,Senior Planner January 21,2000 • Page: II petitioner challenges an urban density of less than four (4) dwelling units per acre, the Board would look to the plan and records to see if adequate justification, such as the presence of highly ranked environmentally sensitive factors, have been presented. See, Benaroya v. City of Redmond, CPSGMHB Case No. 95-3-0072(c) (1997) at 33. When such a "bright line" general standard of review is applied to the LUPB's rejection of the Planning staff's recommended approval of the Carnes' 2 dwelling units on a 1.18 acre lot and the Pacific Industries' 4.5 dwelling units on an 8.6 acre lot solely because of presence of LU-27 urban separators and no discernible high ranked environmentally sensitive factors, then its obvious that such rejection may not be consistent with the above-enunciated "bright line" and may be subject to a legal challenge should City Council uphold the LUPB's recommendation to reject these comprehensive plan amendments. It is important to note that just because an area is designated as an urban separator area does not mean that all land use developments are precluded in the area. Note, even under King County Code, such as KCC 21A.24, the county retains some discretion in approving developments designated highly ranked environmentally sensitive areas either through some conditional use permits or by requiring that some mitigation measures be applied and adhered to, such as requiring maximum development buffer areas and special review of the scale and design of the developments, to ensure compatibility with and transition into the unique characteristics of the surrounding areas. Property Right Concerns A salient, but perhaps equally important, issue not fully explored and addressed by the LUPB before rejecting staffs recommendation of the two comprehensive plan amendments with urban separators is the issue of property rights. While RCW 36.70A.020(6) provides that private property shall not be taken for public use without just compensation having been made, RCW 36.70A.160 specifically directs each jurisdiction planning under the GMA to identify open space corridors within and between urban areas, and to authorize their purchase. The corridors "shall include lands useful for recreation, wildlife habitat, trails, and connections of critical areas" as defined in RCW 36.70A.030. It should also be noted that this section provides that a county or a city shall not restrict the use or management of lands within the corridor for agricultural or forest purposes, the section went on to note that: Restrictions on the use or management of such lands for agricultural or forest purposes after identification solely to maintain or enhance the value of such lands as a corridor may occur only if the county or city acquires sufficient interest to prevent development of land . . . . Nothing in this section shall be interpreted to alter the authority of the MEMORANDUM: Fred Satterstrorn, Planning Mahager Kevin O'Neill, Senior Planner' January 21, 2000 Page: 12 state or county or city, to regulate land use activities. (emphasis added). While the cited statutory provisions relate to forest, open space and agricultural lands, an iriference could be drawn that, to the extent that LU-27's restrictive language is adhered in'prohibiting the use of private properties within designated urban separator areas that has not yet been acquired either by the city, county or state, such outright restriction of development of a private property without formal condemnation or acquisition could constitute an unconstitutional taking. It is unlikely, however, that such an argument would prevail in the present circumstances of the LUPB's denial of approval on the Cames' and Pacific Industries' applications since these properties have not been designated forestry or agricultural lands. CONCLUSION In light of the favorable statutory provisions; precedent Board rulings; and the City's land use, zoning and annexation powers under the GMA, Title 35 and 35A RCW regarding the questions presented herein, it is this offrce's opinion that a specific Countywide Planning tolicy on urban separators cannot provide substantive direction or restrict the City's land use power in proposing comprehensive plan amendments of newly annexed areas, so long as such comprehensive plan amendments are consistent with the goals and objectives of the City's adopted comprehensive plan and with the overall framework of the adopted Countywide Planning Policies. However, in spite of this analysis and conclusion, the Planning Department could decide to leave the current development densities on the Carnes' and Pacific Industries' property below the preferred low urban development density of 4 dwelling units per acre if the Planning Department finds that these properties contain a high level of environmental sensitive factors that would preclude any higher development densities on them. We hope this analysis provides some guidance on this issue. Please do not hesitate to contact thisoffice if you have any questions or if you would like to meet and further discuss this issue. i P:\Civii%OPIMONS\CampPlanAmend-Urbark6cpa on do h: Planning COMMUtml Mah 6,2* in Aftach ,feb F i r ar 000 'Plan C MM - - - 4 4�- O Z y # J • -��� .mot. r.._.�, PLANNING COMMITTEE MINUTES FEBRUARY 7, 2000 COMMITTEE MEMBERS PRESENT: Chair Tom Brotherton, Judy Woods, Tim Clark STAFF PRESENT: Jim Harris, Kevin O'Neill, Fred Satterstrom, Dena Laurent, Tom Brubaker, Justin Osemene, Jackie Bicknell The meeting was called to order by Chair Tom Brotherton at 5:00 PM. The Planning Committee Process Committee Chair Tom Brotherton said one of the things that has to be considered is how to make policy work between the Planning Committee, the Land Use & Planning Board, the full Council, and staff. Staff already has a work plan for the next year, part of which is looking at the Comprehensive Plan and recommending updates. Mr. Brotherton said the Committee should work as hard as possible to get as many citizens and stakeholders involved in that process as soon as possible. He described a recommended three-step review process for topics that would give the Committee background information, include stakeholders' opinions, and engage citizens in a roundtable discussion. The concept is to have two meetings where citizens can gather information and be educated on the process and the issues; then staff would come back to Committee with preliminary recommendations and the issue would be discussed again before a final recommendation was made to the full Council. Council and staff may come up with their own list of policy issues to be reconsidered. The lists would be put together to identify the highest priority issues and a plan laid out for the next two years that reviews the Comp Plan, goes through policy issues with a citizen review process, and then rolls those issues into the full Comprehensive Plan for implementation. Planning Manager Fred Satterstrom said it is extremely important to do what the Council intends to be done. Checking with policy makers up front before undertaking a project, and getting direction from the Council for the goals to be accomplished are extremely important. The advantage of having a Planning Committee separate from Public Works is more time for general early discussions about the work program. Mr. Satterstrom said the process Mr. Brotherton described is essentially the planning process that staff uses. Stakeholder groups are formed of people who have a vested interest in the outcome. A stakeholder may be the Chamber of Commerce, the general citizenry, or developers. By including the stakeholders in the process, criticisms will be known before the public hearing and can be addressed in the proposal. Even if the stakeholders do not get what they want, their concerns have been considered and a reasoned alternative given. Council has the final say, but in many matters, the Land Use & Planning Board will have made a reasoned recommendation beforehand. Tom Brotherton said one of the concepts of putting together a long-term plan is letting • people know ahead what will happen so they can be prepared to address the issues. Committee Member Tim Clark commented that it is very difficult for citizens to accept the changing nature of their neighborhoods, especially if they have been in a particular Planning Committee. 2/7/00 Page 2 state for a long period of time. In recent years the City has had to cope with greater density of housing, smaller lot sizes, and other issues that staff will continue to have to work through. Mr. Clark said his concern was that the process be used as a tool to educate the citizens about what the City is currently doing, and to let them know there will be a struggle in accomplishing solutions to some issues, particularly those dealing with transportation congestion. Mr. Brotherton said it was important to get the priorities straight in the beginning and to decide what the most important things were to consider and do first. Fred Satterstrom noted that the Planning Department puts together a work program for projects. He handed out a copy of the most recent Planning Services Division Work Program and said that although the program is usually an annual schedule, the current one was put together for an 18 month period for the last half of 1999 and the year 2000. Staff uses the target issues, identified by Council at its annual retreat, to formulate the work program, and includes also mandates required by law. The first part of the work program is long range planning that forecasts the number of hours estimated for each project. Mr. Satterstrom described particulars relating to some of the projects such as the Commuter Rail Study, Downtown Zoning, Downtown Strategic Action Plan Revisions and Update, Zoning Code Amendments, the Subdivision Code, Neighborhood Design Strategy, and Downtown District Design Guidelines. He said underlying all of the projects are the target issues that the Council identified in their 1999 retreat. The work program is only a best guess in terms of how much time it will take to complete projects, who might be involved, and how resources will be committed to achieve Council targets and the mandates. Committee Member Judy Woods said more information for the citizens could be given out by using the City's Public TV channel, the Kent Reporter, and other tools such as the City's web page. Updates, meeting times and places, and where certain input would be appropriate could be made available. Letters or email communications would be welcome if people could not come to the meetings. By giving different opportunities for input, more input can be secured and people made to feel more comfortable because formal public settings can be intimidating to some. Tom Brotherton said the process is something that both the Land Use &Planning Board and the Committee should share and integrate together. He asked that staff consider how that could best be worked out, with the next order of business being a work plan to decide topics and dates for new policies. Staff could start soliciting input from effective people as soon as possible. Mr. Satterstrom commented that staff pretty much knows what items will be going to the Land Use & Planning Board and could relay that information to the Committee. New policies or new programs would be completely up to the Council. The Land Use & Planning Board should function as it always has, taking general direction from the Council and carrying that out in the way they best see fit. For example, Council may want to amend the City Code for some reason; they know the objective, but don't necessarily know how to achieve it or how the regulation should be written. The matter • goes to the Land Use & Planning Board who holds hearings and comes up with a recommendation, and with minor modifications, the recommendation may be adopted by • Page 3 Planning Committee,2/7/00 the Council. The Land Use & Planning Board has provided the research and public participation arm so that, hopefully, Council doesn't have to start new deliberations. The Land Use & Planning Board does not create its own work program but carries out the will of the Council. Tom Brotherton said that in setting up the Planning Committee and getting it fully integrated into the existing system, there may be times for public hearings or receiving input by the Committee who would then take that input and make a recommendation based on everything it has learned. Or, maybe the Committee would just consider the recommendation of the Land Use & Planning Board. The information should be put in front of the public and discussed with them before a recommendation is made, and there may be a problem in getting a recommendation from one body before the Committee can receive the public input. Planning Director Jim Harris stated that the Land Use & Planning Board had been set up to be the hearing body, and the Planning Committee should not be conducting quasi hearings. Mr. Hams said it is proper for the Committee to hear from the public, but there is a point to trust that staff knows where the Council wants to go, and to allow them to move forward. Staff moves internally to send things on to the Land Use & Planning Board where there may be a series of hearings. If Staff and the Land Use &Planning Board have done their homework and have done a good job listening to the stakeholders, the hearing will have essentially been held for the Committee. Some people may want more input and it would have to be determined to what degree modifications would need to be made, but the critical mass would have been done by the Land Use & Planning Board. Tom Brotherton agreed with Mr. Harris, but said he wasn't quite clear on the way to accomplish that objective. He suggested sitting down and talking with those who want to participate to find a way to optimize the use of all resources. Mr. Brotherton said the goal for the next meeting would be to come up with an outline of a long term plan, incorporating what the Land Use & Planning Board will be doing and what the Committee and Council will be doing. Judy Woods recommended that staff bring an outline of the work in progress and the already listed workshops and hearings for the Committee to go over to get an idea of what would be anticipated down the road. Five Year Update of the Comprehensive Plan Senior Planner Kevin O'Neill said staff is embarking on the first comprehensive overview and update of the Comprehensive Plan that was adopted by the Council in April, 1995. An update is warranted at this time as there have been several changes in the region since 1995. The Regional Transit Plan has been adopted and Kent will have a commuter rail station operating, hopefully, later this year. The Endangered Species Act has impacted Chinook salmon and will definitely have an impact on land use in Kent, and there have been incorporations and annexations of other cities around Kent such as those of Covington and Maple Valley. The Growth Management Act requires a comprehensive update by the year 2002 and • every five years after that. The Plan is only relevant if it's kept up-to-date, and the City has about 30,000 more population now than in 1995. In the Population Trends and • f 1 Planning Committee,2/7/00 Page 4 Forecast Chapter of the original Plan, the City was projected to be 60,250 people by the year 2010. That was 10 years and 15,000 people off from the actual, as the City is already over 70,000 people. The forecast was correct at that time because the City limits ended at 116`h. The community is also more diverse now than then and socioeconomic factors are different. Mr. O'Neill said Kent is probably the most dynamic community in the Puget Sound Region in terms of changes wrought, and it's necessary to go back and update some of the assumptions of the original Plan such as the basic demographic profile of the City, the projections and forecasts used by City staff and the community in capital improvement planning, and transportation planning. The Comprehensive Plan is also a tool used to show the community and the Council what has been done since 1995. The City has done a good job of implementing the Plan in terms of the annexations and growth that have happened. Household and employment targets outlined in the Plan have happened pretty much on schedule, although they happened faster because the City is bigger. That creates the opportunity to analyze what may need to be emphasized more in the future, or to see what wasn't done as good as it should have been in implementing the Comp Plan. The schedule that staff has laid out anticipates a 15 month process,but that depends on how many issues get flushed out and how much work needs to be done. All of the inner City departments have been briefed on the project and each department will dedicate staff to it so it's not just a Planning Department project. Probably the most important thing being done right now is receiving input from the public. The Growth Management Act identifies docketing as a way of asking people what they think needs to be in the Plan. Staff has prepared a one page docketing form for citizen comments which can address anything from specific changes to the land use plan map to Council's paying more attention to affordable housing. There will be an information article in the next issue of the Kent Reporter due out next week, and staff is putting out a brochure to send to community groups and other agencies that will also be available at the Planning Department counter. Over the next two months, the City will solicit suggestions via e- mail, and information on the update process will go out over the City's Public TV Channel. Staff has identified those things that need to be updated in the Plan and work will start in the next few months on the technical aspect of updating population and employment forecasts. Other things will need to be identified early on so all City departments will have a common understanding of the anticipated growth for the City. Some things may happen that can't be anticipated right now such as annexations that could occur in the next year that would change the population forecasts. As the City limits change, the information has to be updated. Mr. O'Neill suggested that a month or two down the road after receiving comments from the public, that staff should come back and share those comments with the Committee. He also suggested that the Committee might go through a similar process this spring as . was done in 1992, when staff went to the Council with a set of framework policies that led to the more detailed work that was eventually done as part of the Plan. As work plpnn+nn Committee,2/7/00 Pape 5 moves forward, Council and staff would both be looking at the same issues. The first public process of the schedule would extend through the middle of April. After that, more substantive work would be done based on a second round of public processes and open houses. A more formal public hearing process would be held by the end of 2000 or in early 2001. Tim Clark stated that there is an opportunity to amass a great deal of accurate information and make it available in other forms of data such as the GSA Mapping capabilities. He was concerned that the City's struggle with METRO in gaining a workable bus system and the need for alternative transportation other than car, because of the cuts from Initiative 695, would be projected into the Comp update. Kevin O'Neill said that when the Comp Plan was done in 1995, staff worked with the Transit Advisory Board and the Bicycle Advisory Board so that the modeling would take the whole road network into consideration for a 2010 population to look at the impact of growth on roads. One of the biggest factors to assume is what percentage of people should be driving alone, how many walking, biking, or riding the transit system, and how to form policies to force those assumptions to happen. A big part of the project will be rerunning the modeling process for the first time since the Plan was adopted, and a critical decision to make up- front is what assumptions should be used on percentages of single occupancy vehicles versus other modes of transportation. The City is now better positioned programmatically to make some of the assumptions happen as there is a full time Commute Trip Reduction Coordinator, a full time Transportation Demand Management Coordinator, and there will be a new Transportation Engineer Manager. The City will have Sound Transit service which it did not have before, but METRO will be trickiest of all to work with because of the cuts and the general nature of their service to some of the outlying communities. Mr. O'Neill said one of the main points of growth management was to tie land use, planning, and the transportation plan together. Judy Woods asked that staff let the Committee know how it could be helpful as the Planning Department goes through the 12-18 month process of amending the Comp Plan. Tom Brotherton asked how the City had done on the original 14 goals in the Growth Management Act. Kevin O'Neill responded that from a general land use standpoint, the City has been pretty successful. As part of the countywide planning policies, each city was asked to do benchmarking or monitoring on an annual basis, and King County staff has said they consider Kent to be a city that's walked its talk in the management of accommodating housing growth. Kent has been fairly successful at getting senior housing in the downtown area, and the commuter rail should be a generator for other kinds of housing. The harder parts of implementing the Plan come at the infrastructure level like creating livable neighborhoods and/or neighborhoods where higher density housing and services work together. A lot of that has to do not just with land use and growth but with streets and sidewalks and other things. What actually happens on the ground from an infrastructure standpoint is the harder part for most cities, and with some of the programs s_ Planning Committee, 2/7/00 Page 6 that Kent has initiated recently in neighborhood traffic control, etc., it is moving in the right direction. Jim Harris commented that planning is the policy dream and development is the economic situation, and it has been difficult at times to mesh the two and for planning to be partners with the economic side because it costs too much to do some of the planned things. Yet there are some wonderful things that have been done and some that are the pits, and it's not so much the fault of the Comprehensive Plan or of staff, but is the nature of planning and development. Kevin O'Neill remarked that there have been a lot of changes in the City and it's important to make sure that the Comp Plan the Council adopts will do what Council and the community wants when it comes to the future growth and change in the City. In early or mid April after the docketing session and comments from the public have been received, staff will come back and share with the Committee what was heard and will talk about policy framework with the Council. The meeting was adjourned at 5:53 PM. Jackie Bicknell City Council Secretary