MEMORANDUM Clallam County Department of Community Development Date: April 27, 2007 To: From: Subject: Planning Commission Selinda Barkhuis, Senior Planner May 2, 2007 Planning Commission Work Session Enclosed in your packet are the following items: 1) Agenda for the May 2, 2007 meeting. 2) Draft of April 18, 2007 Meeting Minutes. 3) DRAFT 07-04c of proposed ordinance to amend Chapter 29.43 CCC, Boundary Line Adjustments and Lot Combinations, with attached thereto the following: RCW 58.04.007, which is the relevant Boundary Line Agreement section; The Attorney General s Opinion on this subject; and Surveyors proposed changes to Chapter 29.43 CCC received to date (submitted to staff on April 24, 2007). Surveyors may submit additional changes after their next meeting on April 30, 2007 which is just a couple of days before the May 2, 2007 Planning Commission meeting date. If this is the case, copies will be provided at the Planning Commission meeting. 4) DRAFT 07-04 of proposed ordinance to amend Chapter 29.45 CCC, Alterations & Vacations, with attached thereto the surveyors proposed changes to Chapter 29.45 CCC received to date (submitted to staff on April 17, 2007). 5) DRAFT 07-04 of proposed ordinance to amend Chapter 29.03 CCC, Definitions, with attached thereto the surveyors proposed changes to Chapter 29.03 CCC received to date (submitted to staff on April 17, 2007). The upcoming meeting will focus on the following major item: Third work session of first phase to amend Title 29 CCC, Subdivisions. Amendments to Title 29 CCC, Subdivisions. DCD has been faced with a number of requests that, when reviewed in light of relevant state statutes and case law, have revealed a need to review and revise certain sections in Title 29 CCC, Subdivisions. Furthermore, there is a desire to clarify certain review processes, and to improve efficiency. Because Title 29 CCC is so extensive, the plan is to accomplish its amendment in two phases. The first phase would amend those provisions that are presenting DCD with the 1
most significant problems. Upon resolving these problems, the plan is to proceed with review and revision of the remaining chapters of Title 29 CCC. The first phase would include amendments to the following chapters: A proposed ordinance to amend Chapter 29.05 CCC, Application Requirement and Review Process, to update application requirements and create a new section, Determining legal lot status; A proposed ordinance to amend Chapter 29.43 CCC, Boundary Line Adjustments and Lot Combinations, to amend the sections regarding Boundary Line Adjustments and Lot Combinations, and to create a new section, Boundary Line Agreements; A proposed ordinance to amend Chapter 29.45 CCC, Alterations and Vacations, to amend the sections regarding Alterations and Vacations; A proposed ordinance to amend Chapter 29.03 CCC, Definitions, to amend definitions in conjunction with the above first-phase ordinances and to otherwise update definitions. The second phase would include amendments to the following chapters, and perhaps other chapters, as deemed necessary upon closer review: A proposed ordinance to amend Chapter 29..01 CCC, Purpose and Authority; A proposed ordinance to amend Chapter 29..05 CCC, Application Requirements and Review Process, to amend sections not updated in first phase; A proposed ordinance to amend Chapter 29.19 CCC, Preliminary Approval Authorization and Expiration; A proposed ordinance to amend Chapter 29.20 CCC, Final Plan Requirements and Process; A proposed ordinance to amend Chapter 29.30 CCC, Standards for Subdivisions, Short Subdivisions, and Large Lot Divisions; A proposed ordinance to amend Chapter 29.03 CCC, Definitions, to amend definitions in conjunction with the above second-phase ordinances, as necessary. Input and feedback from surveyors. Notice was previously provided to all local surveyors and land use attorneys. Local surveyors have apparently been meeting as a group on Monday evenings, and to date have provided comments to Chapters 29.01, 29.03, 29.43, and 29.45 CCC, which are attached hereto (except for the comments to Chapter 29.01 CCC, which will be addressed during the second phase). Staff has considered all changes proposed by the surveyors, and, where deemed appropriate, has incorporated them as indicated in staff reports. Process status. This is the third work session regarding the first phase, and will focus on proposed amendments to Chapters 29.03, 29.43, 29.45 CCC. A subsequent work session will include final review of the first-phase, consisting of proposed ordinances amending Chapters 29.03, 29.05, 29.43, and 29.45 CCC, and will likely include a request that the Planning Commission proceed with calling a public hearing on the same. 2
DRAFT 07-04c of Chapter 29.43 CCC, Boundary Line Adjustments and Lot Combinations. Please refer to the Memo for the April 4, 2007 Planning Commission meeting with details on the proposed amendments, as the text below does not repeat the background for the need of the proposed amendments, but is limited to discussing comments received at or since the April 4, 2007 Planning Commission meeting and changes made to DRAFT 07-04b to produce DRAFT 07-04c. Despite the surveyors having had available to them DRAFT 07-04b of Chapter 29.43 CCC since March 30, 2007, the comments received from them so far have been limited to rejecting boundary line agreements because these are not subject to the provisions of RCW 58.17 and see RCW 58.04, and rejecting Lot Combinations or Lot Covenants, because they find no reference to [them] in RCW 58.17, and it is a function of the building permit review process. The Supreme Court in HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451 (2002) held as follows regarding Chapter 58.17 RCW: Local jurisdictions may enact ordinances upon subjects already covered by state legislation if their enactment does not conflict with state legislation. This court will consider an ordinance to be constitutionally invalid on grounds of conflict if the ordinance 'directly and irreconcilably conflicts with the statute.' If, however, the ordinance and statute can be harmonized, no conflict will be found. Unconstitutional conflict occurs when an ordinance permits what is forbidden by state law or prohibits what state law permits. [citations omitted]. Staff explained in her memo for the April 4, 2007 Planning Commission meeting that, according to an opinion by the Washington State Office of the Attorney General (which is attached hereto), a county s regulation of RCW 58.04.007 agreements for the purpose of ensuring that such agreements are used consistent with the statutory exemption does not unconstitutionally conflict with the statute. Staff believes that DCD s proposed ordinance is in accordance with the Attorney General s opinion. During the April 4, 2007 Planning Commission meeting, the Planning Commission asked surveyors to explain their position opposing DCD s proposed section in writing. No such writing has been received by staff as of April 26, 2007. As to Lot Combination Covenants, the fact that there is no reference to Lot Combination Covenants in Chapter 58.17 RCW simply means that there is nothing in Chapter 58.17 RCW to conflict with DCD s proposed ordinance. Section 1. Applicability. (1) Boundary Line Adjustments. The word per was changed to pursuant to. The phrase minimum requirements for width and area as a building site was changed to minimum requirements for width and area as specified in this chapter. While the RCW uses the phrase building site in defining boundary line adjustments, the phrase building site is not defined by the RCW. The Appeals Court in Mason v. King County, 134 Wn.App. 806 (2006), held that 3
local governments are free to define the dimensions of a building site so long as that definition is consistent with applicable local zoning requirements. The Court in that case held that to interpret building site to mean minimum lot area for construction would allow land owners to use the boundary land adjustment process to obviate the broader constraints of the zoning regulations, which result would be contrary to the dictates of RCW 58.17.040(6). Because some of the County s other land use codes use the term building site to basically describe the minimum lot area for construction, it was necessary to substitute the term building site with the indicated reference, to ensure compliance with the intent of Chapter 58.17 RCW. (3) Lot Combination Covenants. The phrase binding unto the landowner was changed to binding upon the landowner. The phrase an interest to the lots was changed to an interest in the lots. Section 2. Boundary Line Adjustments. The phrase site map was changed to plot plan which is being defined in Chapter 29.03 CCC, definitions as a neat and approximate drawing to scale showing the general layout of specified items. Plot plan, unlike site map is used in some of the County s other land use codes, and is not associated with a surveyed map. The phrase right-of-ways was changed to rights-of-way (two other instances in the document were corrected as well). The requirement that applicants submit title reports was added, as these contain valuable information that is difficult to locate by planning staff but routinely accumulated and efficiently provided by title companies. For this purpose, title reports are already routinely required as part of other land division processes (albeit currently only at the final plat stage, which DCD is proposing to change to the preliminary application stage as part of its proposed ordinance amending Chapter 29.05 CCC, to be discussed at the next work session). The sentence that read Any restrictions affecting the properties subject to the proposed boundary line adjustment, with a description of purpose and referenced by the auditor s file number and/or recording number; was replaced with A copy of any declaration of covenants, conditions, and restrictions (CC&Rs), deed restrictions, lot combinations, or any other covenants that run with the land, or any portion thereof; to remain consistent with the phrase that will be added to Chapter 29.05 CCC. The phrase submit with their application was changed to submit with the application. Section 3. References to buildable lot that were added in previous drafts were deleted because the term is confusing. The question arose of why a Boundary Line Adjustment may not be used to separate an accessory dwelling unit (ADUs) from the primary dwelling unit (number 11). The reason for this is that ADUs are designed to function with the 4
primary dwelling unit as one development (i.e. shared road access). As such, separating them requires resolution of the resulting complications that are best achieved through a short plat process. Section 4. The phrase and pursuant to the provisions of Chapter 26.10 CCC, Consolidated Development Permit Process, was added to the first sentence. The phrase does not comply with the above was changed to does not comply with any of the above. The phrase is appealable in accordance with Chapter 26.10 CCC was changed to is appealable to the Hearing Examiner pursuant to Chapter 26.10 CCC. Section 5. Added was the requirement to provide a supplement to the title report, to verify that ownerships have remained the same since the application. Title Reports run about $85, Supplements about $10. Commissioner Bell stated that the Code should specify it is the responsibility of the landowner to record the documents. Mr. Wengler, surveyor, stated that it is the responsibility of the surveyor to ensure recording of the survey within ninety days, pursuant to RCW 58.09.040. During the last few years, DCD has been coordinating with landowners to ensure that they pay the recording fees and then transporting the documents from the DCD office to the Auditor s office. This has resolved problems DCD has experienced in the past of documents being altered between leaving DCD and arriving at the Auditor for recording, as well as documents not being recorded by landowners who fail to follow through. The current County Code does not specify this process, leaving it open to policy, and the proposed ordinance would continue to leave this process open to policy. DCD objects to including a provision that it will be the responsibility of landowners to record the documents, because such a provision would both be contrary to RCW 58.09.040, and likely result in the return of the above-explained problems. Section 6. Boundary Line Agreements. During the April 4, 2007 Planning Commission meeting, the question arose why the letter authorizing recording would be submitted to the Assessor s Office. The answer is that copies of land division decisions are routinely provided to the Assessor s Office, pursuant to various state laws. Because other laws govern this chain of paperwork, it was removed from this section. Lot Combinations. The phrase lot combination covenant was capitalized in the title of this section. The sentence that read Any restrictions affecting the properties to be combined, with a description of purpose and referenced by the auditor s file number and/or recording number; was replaced with A copy of any declaration of covenants, conditions, and restrictions (CC&Rs), deed restrictions, lot combinations, or any other covenants that run with the land, or any portion thereof; to remain consistent with the phrase that will be added to Chapter 29.05 CCC. 5
The phrase Pursuant to the provisions of Chapter 26.10 CCC, Consolidated Development Permit Process, was added to subsection (4). The phrase is appealable in accordance with Chapter 26.10 CCC was changed to is appealable to the Hearing Examiner pursuant to Chapter 26.10 CCC. DRAFT 07-04 of Chapter 29.45 CCC, Alterations and Vacations: Section 1. The most significant change DCD is seeking to achieve is the applicability section for alterations. Chapter 58.17 RCW preempts the creation, alteration, and vacation of subdivisions. RCW 58.17.215 specifies the process to be followed by any person interested in the alteration of any subdivision or the altering of any portion thereof. The term alteration is not defined anywhere in RCW 58.17, nor has it been interpreted by the courts. Absent a specific definition in a statute, common terms should be given their customary meaning. The plain meaning of the word "alteration" includes any change or modification, and certainly would include something as significant as the creation of additional lots within a subdivision. References contained within RCW 58.17.215 support this interpretation. For instance, RCW 58.17.215 provides for an equitable levy of outstanding assessments on lots resulting from the alteration (emphasis added). Also, specifically exempted from the provisions of RCW 58.17.215 are such minor items as boundary line adjustments and the granting of easements of ingress or egress over public open space in very specific situations as identified in RCW 58.17.225 (implying that the granting of any other easements within an existing subdivision plat would be subject to the alteration process). Accordingly, there appears to be no justification for Clallam County to exclude the creation of either additional lots or easements in existing subdivisions from the alteration process. It is important for the County to process all changes to subdivisions as alterations pursuant to the intent of the legislature in adopting RCW 58.17.215, because RCW 58.17.215 requires the County to provide notice to ALL landowners within the subdivision. In contrast, under the current County Code, creation of new lots within an existing subdivision is processed as either a short subdivision (4 lots or less) or new subdivision (5 lots or more), which does not require notice to all landowners within the underlying subdivision. The legislature presumably requires all landowners within a subdivision to receive notice, because if there are any restrictive covenants relevant to the proposed alteration, it is the landowners within the subdivision who would have the power to enforce them. The Supreme Court has consistently upheld and enforced restrictive covenants. For instance, in Olympia v. Palzer, 107 Wn.2d 225 (1986), the Supreme Court stated the following: Restrictive covenants are imposed as part of a common plan of development to benefit all of the grantees of the developer. The ability of homeowners to enforce restrictive covenants against original and subsequent property owners helps ensure that the community will be able to maintain its planned character and provide the lifestyle sought by its residents in making their homes there. 6
The purpose of the RCW 58.17.215 requirement (enacted 1987) may well be the legislature s attempt at reducing the need for landowners to resort to the courts for relief. Under the alteration process of RCW 58.17.215 (and proposed ordinance amending Chapter 29.45 CCC), the County is only responsible for providing notice to all the landowners within the subdivision. It is the applicant s responsibility to submit the CC&Rs and procure the requisite signatures and agreements. Because all landowners in the subdivision will receive notice, they will be able to alert DCD and the hearing examiner of any contrary CC&Rs and thus the requirement that the applicant procure the necessary signatures and agreements. When the CC&Rs are unclear, it would be up to the hearing examiner to interpret the CC&Rs and decide whether to condition approval of the alteration on the applicant procuring the requisite signatures and agreements, which decision would then be appealable by either the applicant or the landowner(s). Any resulting court dispute would then be between the applicant and the landowner(s) and focus on the interpretation and applicability of the CC&Rs. Section 2. RCW 58.17.215 preempts the plat vacation process and this section has been modified to mirror the language at RCW 58.17.215. Section 3. This section has been modified to mirror the language of RCW 58.17.212 (vacation) and RCW 58.17.215 (alteration) with one minor change. While RCW 58.17.215 provides that the notice ( to all owners of property within the subdivision ) shall either establish a date for a public hearing or provide that a hearing may be requested, DCD will automatically establish a date for a public hearing in all cases, so as to avoid having to provide subsequent notice. Chapter 58.17 RCW does not refer to the term affected party and both its definition and references were removed from Title 29 CCC, where they were also used inconsistently. See definitions below for more information. Furthermore, the current code (incorrectly) includes the alteration for binding site plans under the alteration processes of both subdivision and short subdivision. It was retained under the alteration process of subdivisions, and deleted from the alteration process of short subdivisions. It was retained under the alteration process of subdivisions because the County may at some point adopt an ordinance approving the use of binding site plans to include the creation of lots for sale, in which case it would be more appropriate for the alteration of binding site plans to mirror the alteration of subdivisions. RCW 58.17.212 and.215 place an affirmative duty on an applicant who submits an application for either a plat vacation or plat alteration to submit an agreement signed by all parties subject to a restrictive covenant that would be violated providing that the parties agree to terminate or alter the relevant covenant to accomplish the purpose of the alteration of the subdivision or portion thereof. This language mirrors the language of the RCW. See discussion under section 1 above. 7
Section 4. The changes proposed in Section 4 will result in alterations and vacations of short subdivisions and large lot divisions to be processed as Type 2 permits (requiring notice to be mailed). Currently, alterations and vacations of short subdivisions and large lot divisions may be processed without any notice. Notice will be mailed to give landowners an opportunity to notify DCD of the existence of any contrary CC&Rs. CCC 26.10.210 and 220 will need to be amended to reflect this change, once adopted. Section 5. The changes proposed in Section 5 will ensure that review meets the requirements as preempted by State statute (2) and provides a standard for review when considering alterations to non-conforming lots (3). Old section (2) was deleted because the reference to Chapter 29.10 CCC under section (1) made is duplicative. Section 6. The additions to Section 6 do not constitute a change, but merely reflect what the law already requires (see i.e. the referenced sections), and are included for clarification purposes. DRAFT 07-04 of Chapter 29.03 CCC, Definitions: Aliquot part. Proposed by surveyors and acceptable by DCD. Affected party. This term is being used in Chapter 29.45 CCC but inconsistent with its definition at Chapter 29.03 CCC. Because the subject of who has standing to appeal is covered in Chapter 26.10 CCC, Consolidated development permit process (administrative appeals) and Chapter 36.70C RCW, Judicial review of land use decisions (judicial appeals), there is no need for defining the term here. The term was deleted from Chapter 29.45 CCC without any substantive effect. Alteration. To specify what constitutes an alteration, to include the creation of new lots and the addition of easements, both important changes to plats that should be treated as plat alterations. See discussion of alterations above. Binding site plan DCD is reviewing this definition in light of the provisions in Chapter 58.17 RCW as well as the surveyor s proposed change to this definition (which would extend the use of binding site plans to create lots for sale), and will discuss this item in the next work session. Boundary line adjustment To mirror the definition contained in Chapter 58.17 RCW. Block Changed to reflect that the term camper vehicle sites is being used in Title 29 CCC, rather than the term campsites. Building Site Included for clarification purposes. A lot or legal lot is created according to applicable regulations in effect at the time it is created. Under current regulations, lots can only be created if they contain a building site. However, many lots were legally created at a time when applicable requirements for creating a lot were different. To be developed, these pre-existing non-conforming lots must still be able to meet the requirement for a building site under regulations in effect that applicable development applications become vested. Community on-site sewage disposal system Changed to mirror definition at CCC 41.20.020, Definitions, at Clallam County s Board of Health on-site sewage system regulations. 8
Critical areas Critical areas are defined in detail in the referenced chapter, and any example or attempt to define them here would be limiting and confusing, and, if Chapter 27.12 is ever modified, might end up wrong. Dedication Reviewed and adjusted to mirror definition contained at Chapter 58.17 RCW. Density Removed because the term is sufficiently defined in the only section of this Title where it is used, to wit, CCC 29.35.100. Dry site Removed as it is used nowhere in Title 29 CCC. Dwelling unit Modified to be consistent with Zoning Code (Title 33) definitions, except that reference to family was removed, per suggestions made at March 7, 2007 Planning Commission meeting. Easement Changed to mirror definition contained in Black s Law Dictionary. Final plat Edited to mirror definition of plat contained in Chapter 58.17 RCW. Final plat alteration. New term used in Chapter 29.45 CCC. Individual on-site sewage disposal system Changed to mirror definition at CCC 41.20.020, Definitions, at Clallam County s Board of Health on-site sewage system regulations. Land Deleted and included as synonymous under lot. Land division Clarified. Large lot division Suggested by surveyors and acceptable to DCD. Legal access Suggested by surveyors which is consistent with Black s Law Dictionary and acceptable to DCD. Legal description Suggested by surveyors and acceptable to DCD. Lot Expanded to include synonyms (for the purpose of this Title) Lot, parcel, tract or site size The phrase was shorted to size and moved accordingly. Permanent control monument Suggested by surveyors and acceptable to DCD. Person Suggested by surveyors and acceptable to DCD. Plat. Included to clarify that term means the same as final plat. Plot plan New term used in Chapter 29.43 CCC. Preliminary Plat Both the term preliminary plat and preliminary land division are used throughout Title 29 CCC and the definition should refer to both. Recreational vehicle Changed to reflect that the terms RV and camper vehicle are being used in Title 29 CCC but not recreational vehicle. Recreational vehicle park Changed to reflect that the terms RV park and camper vehicle park are being used in Title 29 CCC but not recreational vehicle park. Redivision Modified to clarify the term. Short subdivision The surveyors are suggesting to expand the use of short plats to nine lots within UGAs, as authorized pursuant to Chapter 58.17 RCW. DCD will review this proposal, and will discuss this item in the next work session. Site registration Changed to mirror the description of the term at Chapter 41.20 CCC, the chapter which contains Clallam County s Board of Health on-site sewage (septic) system regulations. Size of lot Changed to refer directly to Title 33 CCC, Zoning, to eliminate confusion. Split-zoned lot Included to clarify that term. 9
Street Modified to include publicly owned easement, making this definition consistent with the definition for that term contained in Title 33 CCC, Zoning, which definition meets the approval of the County s Lead Right-of-Way agent. Pursuant to Title 36 RCW, alleys are streets except that they are used as a means of access to the rear of residences and as such not designed for general travel. Also pursuant to Title 36 RCW, highways include every way, lane, road, street, boulevard, and every way or place in the state of Washington open as a matter of right to public vehicular travel both inside and outside the limits of incorporated cities and towns. As such, these terms are indeed synonymous with streets, and the surveyor s suggestion to include these terms is accepted. Title 36 RCW defines private road as every way or place in private ownership and used for travel of vehicles by the owner or those having express or implied permission from the owner, but not by other persons. Private roads are generally either owned in fee or as easements, and as such they are provided for throughout Title 29 CCC. DCD therefore declines the surveyors suggestion to expand the definition of street to include private vehicle ways. DCD also declines the surveyors suggestion to expand the definition of street to include unrecorded and unwritten rights as these terms are too broad. Vacation Added for clarification purposes. Wet site Removed as it is used nowhere in Title 29 CCC. Cc Project file John H. Miller, Director 10