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Sep 20, 2022

Today we welcome: Kent Scott & Joe McMillan

We discuss the current proposal from Bethany Lutheran Church to give land for the purpose of providing affordable housing to the city of Bainbridge Island.

Here is a sample of a letter addressed to the City of Bainbridge Island & the Planning Commission, as well as others in our community:
      With respect to the Bethany Lutheran proposal and the draft ordinance that we understand you will be presenting to the City Council, we think it important to make a few observations that we hope will inform your approach and your presentation at the City Council meeting on July 26:
  • First, the Council should be informed that COBI is already in compliance with the Washington State statute that seems to have prompted the recent activity around the Bethany Lutheran proposal and the perceived need for a new city ordinance.  The key language from the Washington statute, RCW 36.70A.545, purporting to impose an obligation on cities and counties is as follows:
Increased density bonus for affordable housing located on property owned by a religious organization.
(1) Any city or county fully planning under this chapter [the GMA] must allow an increased density bonus consistent with local needs for any affordable housing development of any single-family or multifamily residence located on real property owned or controlled by a religious organization . . . .
  • COBI already has such an ordinance.  Specifically, BIMC 18.21.030 (Optional residential density bonus for affordable housing) provides up to a 50% density bonus for both rental and “for-purchase” affordable housing, “when each of the additional units is provided for households whose incomes are at or below low income.”  Thus, the Council should not be led to believe that it must enact a new ordinance in order to satisfy a new statutory requirement.  That conclusion is bolstered by the language in RCW 36.70A.545 that any action by the city or county be “consistent with local needs,” which leaves a significant measure of discretion to local authorities, as “local needs” is undefined by the statute.  In our case, we do not believe “local needs” require the construction of a high-density housing development in an R-0.4 zone that is part of the Conservation Area under our current Comprehensive Plan.  Moreover, we understand that Bainbridge is on track to accommodate the population growth that it is required to plan for under the Growth Management Act (“GMA”), based on its existing zoning scheme.  In other words, no up-zoning of the sort required by the Bethany Lutheran proposal is needed to fulfill our obligations under the GMA.  
  • In addition, our existing density bonus provision (BIMC 18.21.030) has the significant advantage of being neutral with respect to the secular vs. non-secular character of the property owner.  Thus, it avoids the serious Establishment Clause issues associated with any new ordinance based on RCW 36.70A.545.  As you may know, COBI has already received several letters from a national non-profit organization, Americans United for Separation of Church and State (“AU”), warning that implementation of RCW 36.70A.545 would violate the First Amendment of the US Constitution and may trigger litigation.  We hope that COBI will act prudently to avoid the needless and wasteful expense associated with such a challenge.  The April 28, 2022, letter from AU to COBI is attached for your reference.  We encourage you to consult with the City Attorney regarding that issue before presenting any draft ordinance based on RCW 36.70A.545 to the City Council.
  • In discussions at the Planning Commission and the City Council earlier this year regarding a possible density bonus for the Bethany Lutheran property, one of the first steps in assessing what would be appropriate has been to determine what the existing permissible Density for the property is under the current Code.  In this regard, we think there have been some positions advanced that are inaccurate, e.g., the claim advanced by the current Chair of the Planning Commission (at the 6/7/22 Study Session of the City Council) that the Code currently permits a Density of 12 residences on the 8.43 acres at issue (which are split into two separate parcels). 
  • That calculation of 12 residences is predicated on what we believe are at least two separate errors in interpreting the Code.  First, it ignores the fact that the north parcel (comprising slightly more than half of the total 8.43 acres owned by Bethany Lutheran) is already fully developed, containing a large church building, a meeting hall, and an extensive parking lot (all built pursuant to a conditional use permit for this R-0.4 zoned lot).  Ms. Sutton has referred to the definition section of BIMC 18.12.050 (which, among other terms, provides a general definition of “Density”) to conclude that all that development should be ignored in determining the density that is permitted, as if the entire 8.43 acres was completely undeveloped.  She has further analogized the situation to the “Mixed Use” zones identified in BIMC Title 18 (the Code’s zoning provisions), saying that in those mixed commercial/residential areas, we disregard the commercial space in assessing the number of residences permitted.  We believe that applying that approach drawn from the Mixed Use zones (all of which are relatively high-density areas, e.g., Winslow) to an R-0.4 residential zone in the Island’s Conservation Area, is a serious mistake, as it treats zones with markedly different purposes as though they were the same.  The express language of the Code makes clear that an R-0.4 zone has an open, natural character that must be protected, with entirely different purposes than those served by Mixed Use zones. 
  • According to the Code, the purpose of residential zones, and R-0.4 zones in particular, is as follows (emphasis added):

18.06.020 Purpose of individual residential districts.

The purpose of the residential districts is to provide for housing at various densities while preserving the unique character of the island, promoting sustainable development, and minimizing negative impacts of new residential development on surrounding areas.
A. Residential 0.4 (R-0.4). The purpose of the R-0.4 zone is to provide low-density housing in an environment with special Island character consistent with other land uses, such as agriculture and forestry, and the preservation of natural systems and open space. The low density of housing does not require the full range of urban services and facilities.
  • By contrast, the purposes of the various Mixed Use zones are as follows:

18.06.030 Mixed Use Town Center zone.

A. Purpose. The purpose of the Mixed Use Town Center zone is to implement the Mixed Use Town Center sections of the comprehensive plan. The Mixed Use Town Center should strengthen the vitality of downtown Winslow as a place for people to live, shop and work, to provide a strong residential component, and to encourage a lively community during both the day and night. The Mixed Use Town Center zone includes five overlay districts that allow diverse types of housing, shopping, civic facilities, recreation and employment. The mix of land uses promotes a pedestrian atmosphere, enhances the viability of the town center, and allows development in a manner that is harmonious with the scale of the town center.

18.06.040 High School Road zone I and II districts.

A. Purpose. The purpose of the High School Road I and II zones is to provide commercial uses that complement downtown Winslow and benefit from automobile access near the highway, while creating a pedestrian-friendly retail area. A variety of commercial uses are allowed that offer goods and services for the convenience of Island residents and that may have an auto orientation and a drive-through facility.

18.06.050 Neighborhood center

A. Purpose. The purpose of the neighborhood center is to provide a mix of neighborhood-scale residential, commercial, and service activity that is compatible with the scale, character, and intensity of the surrounding residential neighborhood . . . .
  • Under the Code, Mixed Use commercial/residential zones are not allowed in R-0.4 zones and are restricted to higher density areas – R-8, R-14, and the various commercial districts that the Code identifies.  See BIMC Table 18.09.020, identifying permitted uses in the various zoning districts.
  • Thus, a density determination that ignores the very substantial pre-existing development of the north parcel of the Bethany Lutheran property based on an analogy to Mixed Use areas is a flawed interpretation of how the Code should be applied.  This is further evident when one considers that the Code itself directs that it be interpreted to apply the most restrictive requirements in making land use decisions:
18.03.070 Minimum requirements.
In their interpretation and application, the provisions of this code shall be held to be the minimum requirements for the promotion of the public health, safety, morals, comfort, convenience, prosperity, and general welfare. Where the conditions imposed by any provision of this code upon the use of land or buildings or upon the bulk of buildings are either more restrictive or less restrictive than comparable conditions imposed by any other provision of this code or of any other law, ordinance, resolution, rule, or regulation of any kind, the regulations that are more restrictive or that impose higher standards or requirements shall govern. When one title of the BIMC is silent on the issue and another title contains explicit regulations, the explicit regulations shall govern. When one title of the BIMC contains general regulations and another contains more detailed regulations on the same topic, the more detailed regulations shall govern. (Ord. 2011-02 § 2 (Exh. A), 2011). 
  • Likewise, reliance on the definitions section of BIMC 18.12.050 to ignore the pre-existing development on the north parcel is also misplaced.  The brief definition of “Density” provided there (“’Density’ means the number of dwelling units allowed in the lot area, not including accessory dwelling units. In zones that use floor area ratio (FAR) in place of units per acre, “density” means the maximum floor area allowed.”) is merely a high-level explanation that positions the term in a general way, and does not speak to the many variables (including zones, bonuses, or restrictions imposed by other Code provisions) that may be involved in assessing the density appropriate for any particular parcel.  It is not an instruction to disregard pre-existing development built pursuant to a conditional use permit when assessing residential density in the Island’s Conservation Area.  Such an approach, aggregating one type of development on top of another, is entirely antithetical to the purpose of the R-0.4 residential zones and the Conservation Areas identified by the Comprehensive Plan.  The Code must be interpreted in a manner consistent with the Comprehensive Plan, not in a manner that disregards its clear objectives. 
  • A second misinterpretation of the Code that leads to the mistaken view that 12 residences are currently permitted on the Bethany Lutheran property is the inappropriate reliance on Accessory Dwelling Units (”ADUs”) to act as a 2X multiplier when calculating density in this context.  That inappropriately transforms what the Code contemplates as “accessories” for the benefit of property owners into stand-alone residences that are entirely separate from the rights that accrue to the property owner under our existing Code.  That is inconsistent with the language and intent of the Code, which describes ADUs as “subordinate” uses of the property – not primary uses, as would be the case if they were entirely stand-alone properties.  See the Code provision on Accessory Dwelling Units (BIMC 18.09.030.I.5, limiting ADUs to 900 sq. ft., among other things).  Indeed, the plain meaning of the term “accessory” (per the Merriam Webster dictionary) is “an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else.”  (Emphasis added.)  Thus, an ADU adds to the convenience or utility of a property owner’s holding; it attaches to that holding.  It does not serve as a basis for multiplying any density determination by two and creating entirely separate property interests.  To use it in that way would be to nullify the meaning of the word “accessory.”  The term “accessory” is not defined in the Code.  Under such circumstances, the Code provides that the common usage of the term should be applied.  See BIMC 1.04.030:      

1.04.030 Interpretation of language.

All words and phrases not defined in the ordinances of the city shall be construed according to the common usage of the language, but technical words and phrases and such others as may have acquired a specific and appropriate meaning in the law shall be construed and understood according to such technical or specific meaning. (Ord. 2003-24 § 17, 2003: Ord. 82-05 § 3, 1982)
  • The “common usage” of the term “accessory” refers to something that “adds to the beauty, convenience, or effectiveness of something else,” not to a stand-alone entity.  Accordingly, in this context, relying on the ADU provision to multiply the Bethany Lutheran density calculation by a factor of two is a plain violation of the language and intention of the Code.  We urge you to reject that tendentious misinterpretation.
  • If the points set forth above are properly considered, we believe that the Base Density calculation for the Bethany Lutheran property would exclude the north parcel (which is already developed in a manner that should not be exceeded for an R-0.4 zone, unless the intention of the owner is to remove all the pre-existing structures), exclude any multiplier effect for ADUs, and be limited to one or two residences for the south parcel (which is less than 4 acres, while R-0.4 zoning allows one residence per 2.5 acres, approximately).  With that baseline established, the discussion of whether, and to what extent, the City should allow for added density can proceed without the distortion of supposing that the Code would already permit 12 residences on those 8.43 acres.     
Thank you for carefully considering the concerns set forth above.  We hope you will share them with the members of the City Council during your presentation on July 26.  We look forward to working with you on the Bethany Lutheran proposal and would welcome the opportunity to meet with you again to discuss these concerns or answer any questions you may have.   
Best regards,
Joseph McMillan

Sign the petition against this current proposal 


The B.I.STANDER Podcast is a conversational podcast unique to Bainbridge Island and Seattle Washington, that covers Society &  Human Interest stories, music and arts.

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