Public hearing

DONUT HOLE PRE-ANNEXATION

ZONING AND DEVELOPMENT
REGULATIONS

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2
 HISTORY
 Maple Valley incorporation: 1997
 Donut Hole property not included within new
city boundaries
 Donut Hole property was (and still is) County
owned, was designated rural (zoning allowed 1
home per 5 acres); contains County Roads
facilities, an active gravel mine, and contains the
east 9 holes of Elk Run Golf Course around its
perimeter
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 History
 2007
 County adopts Ordinance 15856, the “unique
circumstances” ordinance.
This ordinance allowed the County to
bypass its own codes involving the
surplus of real property, in order to
engage in negotiations for the sale of
the property rather than offering the property
for sale at a public auction.

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 History
 2007
 The County’s negotiations for the sale of property caused it to
begin a process to change the land use designation from rural to
urban, as urban level densities were one of the reasons
supporting the sale of the property under the “unique
circumstances ordinance”
 The City objected to the County’s re-designation from rural to
urban because the rural designation, and it’s being located
outside the urban growth boundary meant the City had been
legally unable to do any urban level planning for the
development of that site. The City asked the County to be ablt
to participate in urban level planning for land use and zoning

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 History

 2007
 The City began submitting formal responses
to the County about it’s planning efforts for
the Donut Hole, arguing:
 The City will be the ultimate service provider once
the property is developed (police, public works)
 Surrounding neighborhoods are zoned R-4 and R-
6, and the County’s plans would allow for much
higher density (45x that of the rural density)

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 History

 2007
 The City strongly believed it should be the
beneficiary of sales tax and excise tax
revenue, which could only happen if the City
annexed the property
 The City supported the re-designation from
rural to urban, but wanted to be involved in
planning for the level of density

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 History

 2007
 The City asked the County for a coordinated
planning effort
 No other urban service providers had done any
planning for urban development either: sewer
district, water district, fire district, school district,
electric and gas utility providers

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 History
 2007
 The City objected to the County’s issuance of a DNS.
The City stated its belief that re-designation of the
land from rural to urban would have a “significant
environmental impact.”
 Specifically, no transportation impacts had been analyzed;
impacts on park and recreation facilities had not been
analyzed, needs for urban services had not been analyzed, and
the site sits on a critical aquifer recharge area.
 The City requested an interlocal agreement to give
the City co-lead agency status for environmental
review under SEPA

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 History
 2007
 The City’s formal comment letter to the County
objected to certain changes in County code that
would allow a reduction in acreage for Urban Planned
Developments. This proposed change was solely to
allow a UPD development on the Donut Hole
property.
 The City objected to the County’s plans to rezone the
property as R-8 zoning, and requested instead that
the County rezone the property to R-4 until such time
as coordinated planning could occur

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 History

 2007
 The City’s formal comment letter indicated its
belief that the County was ignoring its own
policies as set forth in the County-wide
Planning Policies, and its Comprehensive Plan

Summary: in 2007 the City asked the County to

engage in a joint planning effort for the site.

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 History
 2008
 The City’s efforts to gain co-lead agency status with
the County for environmental review did not result in
an interlocal agreement, despite meetings, and drafts
that were circulated.
 The County began holding public hearings on its
Comprehensive Plan amendments, including re-
designating the Donut Hole property from rural to
urban, and rezoning the property

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 History

 2008
 The City engaged in its own planning effort in
the Spring of 2008 because it’s efforts to
engage in joint planning with the County were
unproductive
 The City hired R.W. Thorpe & Associates to
study and produce a feasibility report for the
urbanization of the Donut Hole property

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 History
 2008
 The Thorpe feasibility study was accepted by
the City Council in July, 2008, and a copy was
provided to the County Council during a
County Council meeting that same month
 The Thorpe study analyzed urban
development under the County’s plans, and
also analyzed urban development as if the site
were designated R-6 under city code

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 History

 2008
 The Thorpe report was later used by the City
as a basis for “Alternative 2” of the subarea
plan for Summit Place (aka Donut Hole). The
subarea plan was studied by the City’s
Planning Commission, and adopted by the
City Council in February, 2010.

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 History

 2008
 The County’s plans to re-designate the land
from rural to urban required a
recommendation from the GMPC (Growth
Management Planning Council)
 The City successfully lobbied cities to object
to the County’s re-designation of the land
without joint planning with Maple Valley

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 History
 2008
 When the vote on the re-designation by the GMPC
came to the floor, Mayor Iddings was present to
testify. City staff were there to meet with city
representatives of the GMPC. City members of GMPC
spoke against the County’s plans. The vote was
placed on hold because the “No” vote would have
been the majority vote.
 During the next two weeks, intense negotiations
between the County and the City occurred.

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 History

 2008
 The negotiations resolved the issues before
the GMPC, with an understanding that in
exchange for a “yes” vote by city members on
the GMPC, the County would engage in joint
planning with Maple Valley.

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 History
 2008
 On October 2, 2008, the MOA (Memorandum of
Agreement) was signed by:
 Maple Valley, County Executive Sims, and Brian Ross
(YarrowBay Holdings, prospective purchaser of the property)
 The MOA obligated the County and the City to enter into
joint planning for the Donut Hole site
 The MOA specifically references the GMPC involvement in a
successful resolution of the stalemate

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 History
 2009
 City staff met for many weeks with County
staff, and with the prospective purchaser to
draft a joint planning document, now referred
to as the “Joint Plan.”
 The MOA required that the joint planning
document be approved by interlocal
agreement, requiring legislative action by
both the City Council and the County Council

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 History

 2009
 In February, the County entered into a
Purchase and Sale Agreement with Summit
Place 156, LLC (aka YarrowBay Holdings) for
the sale of the Donut Hole property for $51
million

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 History

 2009
 The City Council adopted the Joint Plan, and
by Resolution, authorized the City Manager to
sign the interlocal agreement (ILA) adopting
the Joint Plan, but only if the County Council
also adopted it, unchanged
 The ILA was transmitted to Executive Kurt
Triplett in June, 2009

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 History

 2009
 City staff began working with the City
Planning Commission in the summer of 2009,
to take the next step required under the MOA
- to adopt pre-annexation zoning for the
Donut Hole

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 History

 2009
 When it became apparent that the County
was not going to take action any time soon on
the ILA to adopt the Joint Plan, the City
shifted its planning efforts:
 City staff put aside pre-annexation zoning efforts,
and instead began focusing on adopting the
subarea plan for Summit Place. This was a duty of
the City under the MOA

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 History
 2009
 The subarea plan contains three “alternatives” for the
Donut Hole site:
 Alternative 1: no change. The County’s road and gravel
mining operation continues
 Alternative 2: urban development occurs at medium density,
consistent with the 2008 R.W. Thorpe feasibility study
 Alternative 3: higher density urban and commercial
development is allowed, but only if the County adopts the
ILA to adopt the Joint Plan

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 History

 2009
 The City Planning Commission forwards its
recommendation on the subarea plan to the
City Council

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 History
 2010
 The City Council considers, and holds a public
hearing on the Planning Commission’s
recommendation for the subarea plan, and for
various amendments to the Comprehensive
Plan
 The City Council adopts the subarea plan, and
other Comp Plan amendments in February
2010.

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 History

 2010
 In February, the prospective purchaser seeks
an amendment to the PSA; the amendment
allows the purchaser to have an extra year to
engage in “feasibility” review before deciding
whether to close on the property
 The PSA is amended

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 History
 2010
 The amendment to the PSA between the County and
the purchaser, caused a need to amend the 2008
MOA.
 All three parties sign an amendment to the MOA in
February.
 The amendment means that neither the County or the
purchaser can submit land use development applications, or
legislative amendments during the “waiver period.” The
County’s waiver period has an expiration date of 2/20/12.
The purchaser’s waiver period is until the property annexes
to the City.

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 History

 2010
 The County requests amendments to the ILA
to adopt the Joint Plan
 The City negotiates with the County about the
various amendments.
 The City signs the ILA in June

 The County also signs the ILA in June

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 History

 2010
 After the ILA is in place, the City returns to its
efforts, first begun in the summer of 2009, to
draft pre-annexation zoning and development
regulations for the Donut Hole.
 This is a requirement under the MOA
 The ILA addresses pre-annexation zoning as well,
and sets a goal for annexation to occur by
December, 2010

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 History

 2010
 The City Planning Commission forwards its
recommendation on pre-annexation zoning to
the City Council on 12/15/10
 The Planning Commission recommendation
includes a new land use zoning district “Master
Planned Community”
 The new zoning district would allow the site to be master
planned. It also allows for the continuing operation of
the County’s road and gravel mining operations

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 History

 2011
 The City Council holds a public hearing on the
Planning Commission’s recommendations on
1/3/11. A second public hearing is required by
law and is scheduled for 2/14/11.
 The City Council continues to consider and
discuss the PC recommendations during
January and early February

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 Next steps
 Adopt pre-annexation zoning for the site; adopt
development regulations consistent with the
adopted zoning
 The ILA requires the City to adopt zoning and
development regulations that are consistent with
the goals and policies of the Joint Plan (now also
adopted into the Comprehensive Plan, in the
form of a subarea plan) – in order to arrive at a
“Compliant Pre-annexation Zoning Ordinance”

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 Next steps

 Terms of the ILA

 The ILA is largely concerned with these
issues:
 Establishing a time line to annex the property into
the City; and
 Establishing a process for the City to work with the
County to adopt pre-annexation zoning and
development regulations that are consistent with
the Joint Plan

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 Next steps

 Terms of the ILA

 Once the City is ready to adopt pre-
annexation zoning and development regs, it
must:
 Send a copy of the ordinances to the County, at
least 15 days in advance of the City’s scheduled
action on the ordinances
 The City complied with this requirement on 1/27/11

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 Next Steps

 Terms of the ILA

 If the County objects to the ordinance it must
provide a “Notice of Objection” to the City at
least 3 business days before the City’s
scheduled action on the ordinances
 The County objected on 2/7/11
 The County’s ability to object to the
ordinances is limited

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 Next Steps
 Terms of the ILA
 If the County objects, it must:
 Identify which part or aspects of the ordinance(s)
are inconsistent with the Joint Plan
 Provide a justification of the objection that cites to
specific language within the Joint Plan and within
the ordinances that demonstrate how the
ordinances are inconsistent with the Joint Plan and
 Propose amendment(s) to the ordinance(s) that
resolve the inconsistency(ies).

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 Next Steps

 Terms of the ILA

 Once the City receives a “Notice of Objection”
from the County, it can
 Decide to include all the County’s proposed
amendments to the ordinance(s). If it does this,
the City has a “Compliant Pre-annexation Zoning
Ordinance”
 Alternatively, the City can decide to adopt different
amendments to its ordinances

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 Next Steps
 Terms of the ILA
 If the City decides not to adopt the County’s
proposed ordinances, and to adopt other
amendments, it must again give the County
notice, and delay taking action on the
ordinances for 5 business days. The County
then has three business days to provide
another Notice of Objection.
 The City provided a second notice to the County
on 2/11/11

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 Next Steps

 Terms of the ILA

 If the City adopts the pre-annexation zoning
ordinances, and also does not adopt the
County’s proposed amendments received with
a “Notice of Objection,” then the City does not
have a “Compliant Pre-annexation Zoning
Ordinance” under the ILA.

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 Next Steps

 Terms of the ILA

 The City provided all the ordinances to the
County on January 27 – more than 15 days
prior to the 2/14 public hearing
 The County objected to the ordinances in a
letter dated February 7, signed by Kathy
Brown, Division Director, Facilities

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 Next

 Terms of the ILA

 The City Council directed revisions to three of
the ordinances on February 7
 These changes caused the need to send another
Notice to the County of the amendments, and
causes a need for the Council to delay action on
the ordinances for 5 business days. The County
has 3 business days to provide another Notice of
Objection – due 2/17/11

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 Next Steps

 Terms of the ILA

 City staff recommends that Council open the
public hearing tonight, take testimony, and
continue the hearing to February 28 in order
to comply with the terms of the ILA

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 Pre-annexation Zoning

 Ordinance O-11-436 establishes “Master

Planned Community” (MPC) as a new
zoning district in the City
 What is pre-annexation zoning?
 It is a zoning designation that is adopted in
advance of annexation of property, so that
once annexation occurs, there is zoning
established for the property

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 Pre-annexation Zoning

 MPC zoning has no effect if annexation

does not occur
 The County’s current zoning for the site is
Urban Reserve, with a Urban Planned
Development Overlay. If the property
does not annex, this is the zoning that will
govern development, unless the County
changes the zoning
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 Pre-annexation Zoning

 Because the City adopted the Subarea

Plan for Summit Place, and Alternative 3
of the Subarea Plan is the Joint Plan, and
because the County did not object to the
Subarea Plan, the County must adopt
zoning consistent with the Subarea Plan or
the City will have cause to file a petition to
the GMHB
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 MPC Development Regulations

 Ordinance O-11-439 would add a new

chapter to Title 18 of the municipal code,
Ch. 18.120, “Master Planned Community”
 18.120 establishes the application process
to master plan on the Donut Hole site.
Under MPC zoning, master planning is not
required. If a developer wants to master
plan the site, however, it can do so.
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 MPC Development Regulations
 Ch. 18.120
 If a developer wants to master plan the Donut Hole
site, it does so by applying for “Master Planned
Community Project Approval” (MPC Project Approval)
 MPC Project Approval is a conceptual plan:
 It shows how streets will connect to streets outside the site and
what the general internal circulation will be for traffic;
 It shows generally where trails, and open space will be located;

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 MPC Development Regulations
 Ch. 18.120
 MPC Project Approval is a conceptual plan:
 It will contain proposed sites or areas for any public facilities
 It will contain the general location and areas, acreage, unit
counts, for residential housing and commercial buildings
 It will identify the approximate location of various easements
for utilities, and for park and ride facilities
 It will identify any sensitive areas that are protected from
development

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 MPC Development Regulations
 Ch. 18.120
 The conceptual plan, in order to allow
flexibility, will not contain a requirement for:
 A reliable depiction of development that shows
property lines, and local streets.
 It will not identify the precise location or
configuration of developments, uses, building
types, signage, utilities or public improvements,
landscape areas, open space and recreation
areas/facilities.

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 MPC Development regulations

 Ch. 18.120
 The MPC Project Approval goes to the Hearing
Examiner for approval as a Process 3 decision
 The MPC Project Approval is not a building
permit, and does not authorize any
construction, or subdivision of land (this is a
key component involved in vesting)

52
 MPC Development Regulations

 Ch. 18.120
 The MPC Project Approval is valid for 10 years
 Once the MPC Project Approval is granted, the
developer can get approvals for applications
that do allow construction or subdivision of
land to occur. These types of permits are
called “Implementing Development Permits”
(IDPs).

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 MPC Development Regulations

 Ch. 18.120
 IDPs are such things as: applications for
preliminary plats; binding site plans, or design
review (commercial buildings)
 Each IDP application has its own review
process under City code
 Each IDP, if approved, “vests” according to
state law and city code

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 MPC Development Regulations
 Ch. 18.120
 What rights does an applicant get with MPC Project Approval?
 Ability to achieve a greater level of development flexibility, intensity
and density than any other zoning district in the City.
 Greater flexibility on zoning setbacks, building heights, landscape
areas, tree canopy coverage, impervious surface standards, and
similar requirements.
 Greater flexibility to choose the location, configuration and types of
residential, commercial and public uses than any other zoning
district in the City.
 Ability to achieve even higher densities through the provision of
amenities and use of transferable development rights (TDR’s)
 Ability to achieve regulatory assurances to certain aspects of the
code that are critical to the overall conceptual plan, through a
development agreement.

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 Terms of the ILA
 The County’s Notice of Objection
 The County has essentially made two objections to
the City’s pre-annexation zoning ordinances:
 The County believes the Joint Plan requires the City to grant
“vested rights” to an applicant as part of MPC Project
Approval. Since Ch. 18.120 does not grant vested rights, the
County believes this ordinance is inconsistent with the Joint
Plan
 The County believes the City is required to adopt a TDR
program and since it has not, Ch. 18.120 is inconsistent with
the Joint Plan

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 Terms of the ILA

 Ch. 18.120
 The County’s Notice of Objection was
provided by Kathy Brown, Division Director,
County Facilities Division on 2/7/11
 The letter is included in the materials
provided to Council for tonight’s public
hearing, P. 187

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 Terms of the ILA
 Ch. 18.120
 The City Manager has responded to the
County, setting forth his disagreement with
the County’s Notice of Objection:
 The City’s letter to Kathy Brown indicates that
nothing in the Joint Plan addresses providing
“vested rights” to a developer. (Note: in addition,
the Joint Plan was incorporated into Alternative 3
of the subarea plan and the County did not
challenge the subarea plan.)

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 Terms of the ILA

 Ch. 18.120
 Since the Joint Plan’s goals and policies were
adopted into Alternative 3 of the subarea
plan, word for word, the County had 60 days
from 2/1/10 to challenge the subarea plan to
the Growth Management Hearings Board, and
did not do so

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 Terms of the ILA

 Ch. 18. 120

 The City’s response letter also pointed out
that nothing in the Joint Plan requires the City
to develop a TDR program

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 Vested Rights
 What are vested rights?
 In Washington State, “vesting” occurs when
an applicant submits a complete application
for a building permit or for a plat . RCW
19.27.095; 58.17.033.
 Washington courts have consistently held that
only applications for building permits gain
vested rights upon submission of a complete
application.

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 Vested Rights

 What are vested rights?

 Each jurisdiction’s code may specify what
constitutes a “complete” application for a
building permit.

How does this work in reality?

Say a developer submits an application for a
35 lot preliminary plat on March 1st.

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 Vested Rights

 What are vested rights?

 If the City approves the preliminary plat
application on June 15, the rights that “vest”
date back to the date the application was
determined to be complete.
 If the application was determined to be
complete under city code on March 15, then
the rights that vest, vest as of March 15th

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 Vested Rights
 What are vested rights?
 What does an applicant get with vested rights?
 Under Washington law, an applicant gets the right to develop
under the zoning and other land use regulations in effect as
of the date of a complete application. In the example, the
vesting date was March 15th.
 In the example, if the City changes its zoning code on April
1st, it won’t affect the developer’s project because it was
vested as of March 15th.
 In the example, if the City adopted new building height
regulations on April 1st, those won’t affect the developer’s
project because it was vested as of March 15th

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 Vested Rights

 What are vested rights?

 Washington State is one of only about 4
states in the country that grant vested rights
so early in the development process
 Vested rights are desireable to a developer
because it wishes to have certainty about the
codes it will be developing under

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 Vested Rights
 What are vested rights?
 Vested rights are less desireable for a City, for several
reasons:
 Citizens may want the City Council to change the zoning to
allow or prevent a certain type of development – to promote
economic development for example, or to downzone to
preserve significant natural features of the environment
 Science changes as knowledge improves, causing the need
to amend regulations such as those pertaining to the design
of storm water ponds
 Members of the City Council may desire to amend
development regulations to prevent unintended
consequences when those come to light

66
 Vested Rights

 What are vested rights?

 For a City to be prevented from adopting new
zoning, or new development regulations, or
from amending existing regulations is not
necessarily in the best interests of the public

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 Vested Rights
 Vested Rights and the MPC Code, 18.120
 Recall from earlier in the presentation that
MPC Project Approval does not allow any
construction to occur, or any subdivision of
land. Therefore, it is not a “building permit”
and state law does not require that the code
grant any vested rights.
 However, under the MPC code the developer
is entirely in control of when vesting occurs

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 Vested Rights

 Vested Rights and the MPC Code, 18.120

 The developer is entirely in control of what
vests, and when because the developer gets
to decide when it wants to submit
Implementing Development Permits (IDPs)
 The developer can submit one IDP in year
one of the MPC Project approval, or can
submit all IDPs in year one.

69
 Vested Rights
 Vested rights and the MPC code, 18.120
 The developer can submit one IDP in year two of the
MPC Project Approval, and submit all the remaining
IDP’s in year 9.
 Any possible combination can be imagined here, but
the point is: whatever type of IDP is submitted by a
developer, that IDP vests when the application is
determined to be complete
 The earlier the developer submits each IDP, the
earlier it can obtain vested rights.

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 Vested Rights

 Vested rights and the MPC code, 18.120

 Example: MPC Project Approval occurs June
1, 2012
 Developer submits all IDPs on March 1, 2013.
 The IDPs are determined to be complete on
March 15, 2013.
 The IDPs are approved November 1, 2013.
 All IDPs are vested as of March 15, 2013.

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 Vested Rights
 Vested rights and the MPC code, 18.120
 If one of these IDPs was for a 150 lot
preliminary plat, the preliminary plat would be
vested to 3/15/2020.
 If the preliminary plat proceeds to final plat
approval, the final plat is vested to 3/15/2027
 This is 14 years of vested rights, during which
any changes to zoning or development
regulations would have no effect

72
 The County’s Notice of Objection

 Terms of the ILA

 The City received the County’s objection to sections
of the pre-annexation zoning ordinances on Feb. 7.
As previously stated, staff disagrees that there is
anything in the Joint Plan (or the Subarea Plan which
adopted the Joint Plan), that addresses vested rights.
Why does the Joint Plan not mention vesting?
 It would never be a part of a comprehensive plan document
to establish vested rights for a development project
 A planning document like the Joint Plan and Subarea Plan
are planning guidelines for land use, housing, public utilities,
etc., meant to guide the adoption of zoning and other
regulations

73
 The County’s Notice of Objection

 Terms of the ILA

 There is nothing in the Joint Plan that requires
the City to adopt a TDR Program

 The Joint Plan requires that the City accept up

to 200 TDRs, and the MPC code does allow
for that

74
 The County’s Notice of Objection

 Terms of the ILA

 It is essentially a policy decision for the City Council
as to whether it wishes to grant vested rights to MPC
Project Approval.
 Staff does not believe the County’s objections
pertaining to a TDR program have support within the
goals or policies of the Joint Plan.
 The Planning Commission considered the vesting
issue and did not recommend that MPC Project
Approval grant vested rights

75
 The County’s Notice of Objection

 Terms of the ILA

 City staff continued meeting with County staff after
the PC’s recommendations, and proposed edits to the
MPC code, to create an opportunity for a developer to
obtain a development agreement with four
guaranteed terms
 The proposed edits grant greater certainty but there
is less flexibility, so the developer can choose what is
most important: certainty or flexibility
 Both the MOA and the ILA had language pertaining to
the need for some flexibility for a developer

76
 The County’s Notice of Objection

 Terms of the ILA

 If the City does not adopt the County’s
proposed amendments, and instead adopts
the MPC regulations as currently written, the
Joint Plan will be effective until July 1, 2024.
 It is not known if the County will continue to
cooperate with annexation of the property if
the City has not adopted a “Compliant Pre-
annexation zoning ordinance”

77
 The County’s Notice of Objection

 Terms of the Purchase and Sale

Agreement
 The County’s PSA with the prospective
purchaser requires that the purchaser close
on the property by Feb. 20 of this year
 If the prospective purchaser does not close on
the property the County will have to decide
whether to market the property as surplus at
a public auction

78
 The County’s Notice of Objection

 If the County chooses not to cooperate

toward annexation, the County will have
to adopt comprehensive plan amendments
and zoning amendments that are
consistent with the City’s adopted Subarea
Plan for Summit Place, or face a legal
challenge from the City to the GMHB

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 Summary

 The City asked for an ability to engage in

joint planning with the County, beginning
in 2007
 The City has been engaged in that effort
since the fall of 2008, after executing the
MOA

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 Summary
 The City has carried out all its obligations
under the MOA and the ILA, even though
some goal deadlines were not met on time
 The City adopted the Joint Plan
 The City amended its Comp Plan by adopting
the Subarea Plan for Summit Place
 The City has drafted pre-annexation zoning
 The city has drafted regulations to implement
pre-annexation zoning

81
 Summary

 The impasse over vested rights is a policy

issue, not governed or guided by any goal
or policy of the Joint Plan, the Subarea
Plan for Summit Place, King County
County-wide Planning Policies, or the
County’s Comprehensive Plan.

82
 Summary

 The County has another opportunity to

object to the changes directed by the City
Council on February 7 – the deadline is
2/17/11
 Staff recommends the Council begin
accepting public testimony tonight, and
continue the public hearing to Feb. 28

83
 Summary

Those who wish to testify tonight, can do

so, or they can wait until the date for the
continued public hearing, but there will
only be one opportunity for each person’s
testimony. Those wishing to testify do not
get more than one opportunity to do so.

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 Questions?

85