Chapter 18.110
DEVELOPMENT AGREEMENTS

Sections:

18.110.010    Authority.

18.110.020    General provisions.

18.110.030    Development standards – Flexibility.

18.110.040    Enforceability.

18.110.050    Processing procedure.

18.110.060    Status, recording and amendment of development agreement.

18.110.010 Authority.

The City may consider and enter into a development agreement with the owners of real property within the City, or with persons having control of real property within the City if the owners of such real property execute an authorization for such real property to be subject to and bound by the development agreement. In this chapter, the term “owner” shall include both the owner of such real property and such person having control of such property. Per RCW 36.70B.170, the execution of a development agreement is a proper exercise of City police power and contract authority. A development agreement must set forth the development standards and other provisions that shall apply to and govern and vest the development, use and mitigation of the development of the real property for the duration specified in the agreement. The decision of the city council to approve or reject a request for a development agreement is a proper exercise of police power and contract authority and shall be a discretionary, legislative act. [Ord. 15-0395 § 1 (Att. A); Ord. 12-0347 § 1 (Att. A).]

18.110.020 General provisions.

A. In this chapter, the term “development regulations” shall have the meaning set forth in KMC 19.10.070.

B. A development agreement shall be consistent with the applicable policies and goals of the City’s comprehensive plan.

C. Any departure requested by the owner from the development standards of this code through a development agreement shall be offset by the owner’s provision of a benefit to the City of equal or greater value relative to the departure requested, as determined by the City.

1. Equivalent value need not be measured monetarily and the proposed benefit need not be of the same type as the existing development standard requirement. For example, the benefit of a public open space dedication may be considered against the benefit of a required street improvement.

2. In considering equivalency for the P-suffix and special district overlay regulations, the scope and scale of the proposed development shall be considered. The P-suffix and special district overlay regulations were applied as mitigation for a major mixed use development and they may be modified or eliminated through the development agreement process.

In no case shall a departure from the development standards be granted if no equivalent benefit to the City is provided.

D. A development agreement may be proposed and approved only for properties in the downtown commercial (DC), regional business (RB), waterfront commercial (WC), urban corridor (UC), downtown residential (DR), community business (CB), neighborhood business (NB), public and semi-public (PSP), parks (P) and golf course (GC) zones.

E. A development agreement does not supplant any other required land use decision per KMC 19.25.020, including but not limited to a rezone, a shoreline permit, a site plan review, or an environmental review under Chapter 19.35 KMC. Such land use decisions shall be reviewed in conjunction with the development agreement.

F. As applicable, the development agreement must specify the following:

1. Project components which define and detail the permitted uses, residential densities, nonresidential densities and intensities or building sizes;

2. Design standards such as architectural treatment, maximum heights, setbacks, landscaping, drainage and water quality requirements and other development features;

3. Parking;

4. Provisions for affordable housing, if applicable;

5. Parks and common open space preservation;

6. Amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of State law, any reimbursement provisions, other financial contributions by the property owner, inspection fees or dedications;

7. Mitigation measures, development conditions and other requirements of Chapter 43.21C RCW;

8. Phasing;

9. Build-out or vesting periods for applicable standards; and

10. Other appropriate development requirements or procedures which are based upon a City policy, rule, regulation or standard.

G. A development agreement may obligate a party to dedicate land or easements, or fund or provide services, infrastructure or other facilities.

H. Subsequently adopted development standards which differ from those of an approved development agreement shall apply to the property subject to the development agreement only where necessary to address a serious threat to public health and safety. Subsequently adopted development standards which differ from those of an approved development agreement also shall apply following expiration of any phase or time period specified in the development agreement during which identified standards cannot be modified. [Ord. 15-0395 § 1 (Att. A); Ord. 14-0392 § 1; Ord. 14-0391 § 2 (Exh. 1); Ord. 12-0347 § 1 (Att. A).]

18.110.030 Development standards – Flexibility.

A. A development agreement shall be consistent with applicable development regulations to the fullest extent possible. Provided, however, a development agreement may allow for development standards that are different from those standards otherwise imposed under this code in order to provide flexibility to achieve public benefits, respond to changing community needs, or authorize modifications which provide the functional equivalent or adequately achieve the purposes of otherwise applicable development standards.

B. A development agreement cannot authorize deviations from uses, residential densities, floor area ratio limitations, or maximum structure height – whether required by zoning district provisions, property-specific development standards, or special district overlay requirements – unless the city council approves the deviation by a vote of a majority plus one of the whole city council after a minimum of two public hearings on the agreement.

C. A development agreement cannot authorize deviations from the following development standards:

1. KMC Title 15, Buildings and Construction;

2. KMC Title 16, Environment;

3. Chapter 18.55 KMC, Critical Areas; and

4. Chapter 13.35 KMC, Surface Water Runoff Policy, and Chapter 13.45 KMC, Water Quality.

D. Any approved development standards that differ from those in this code shall not require any further variance from development standards or use permit apart from development agreement approval. The development standards as approved through a development agreement shall apply to and govern the development of the property subject to the development agreement in lieu of any conflicting or different standards or requirements elsewhere in this code. [Ord. 15-0395 § 1 (Att. A); Ord. 14-0391 § 2 (Exh. 1); Ord. 14-0391 § 2 (Exh. 1); Ord. 12-0347 § 1 (Att. A).]

18.110.040 Enforceability.

The development agreement shall be binding on the parties and their successors. Unless amended or terminated by agreement of both parties to a development agreement, the agreement is enforceable during its term by a party to the agreement. Except as provided in KMC 18.110.020(H), a development agreement and the development standards in the agreement govern during the term of the agreement, or for all or that part of the build-out period specified in the agreement. The development agreement shall not be subject to an amendment to a development regulation or a new development regulation adopted after the effective date of the agreement, except as provided in KMC 18.110.020(H). Applications for building permits and other permits subject to KMC Title 15, Buildings and Construction, shall be considered under the provisions of KMC Title 15 that are in effect at the time of submittal of a valid and fully complete application. Any land use decision issued by the City pertaining to the property subject to the development agreement after the execution of the development agreement must be consistent with the agreement. [Ord. 15-0395 § 1 (Att. A); Ord. 12-0347 § 1 (Att. A).]

18.110.050 Processing procedure.

A. An application for a development agreement shall be filed by the owner of real property within the City on forms provided by the department. An application shall be accompanied by an application fee pursuant to the City’s current fee schedule and a signed agreement on forms provided by the department to reimburse the City for fees of the city attorney pursuant to the City’s current agreement with the city attorney. The development agreement may provide for assignment of a portion of the application fee to other permit fees if a development agreement is ultimately approved by the city council.

B. The city council shall make a threshold decision on each application for a development agreement at a regular meeting of the city council. If a majority of the whole council approves further review of the development agreement, the agreement shall be processed as described in this section.

C. Before voting on a proposed development agreement, the city council shall hold a public hearing on the development agreement. Consistent with KMC 18.110.030(B), two public hearings shall be held on the development agreement if deviations from uses, residential densities, floor area ratio limitations, or maximum structure height – whether required by zoning district provisions, property-specific development standards, or special district overlay requirements – are requested. The city council shall approve, disapprove or modify a development agreement by ordinance adopted by the vote of a majority plus one of the whole city council. The ordinance, if approving or modifying the development agreement, shall authorize the city manager to execute the development agreement on behalf of the City.

D. The city manager shall prepare a recommendation to the city council on a proposed development agreement. The city manager shall provide the recommendation to the city council, and make it available to the public, at least 10 calendar days prior to the public hearing on the proposed development agreement.

E. If a development agreement is associated with a Type 5 land use decision such as a comprehensive plan amendment, the development agreement shall be processed concurrently with the Type 5 land use decision. A recommendation of the planning commission to the city council on the Type 5 land use decision shall be issued at least 10 calendar days prior to the public hearing on the proposed development agreement.

F. If the owner files an application for a Type 2, 3 or 4 land use decision or a Type 1 land use decision subject to SEPA, the City shall review and process the application concurrently with the development agreement, and the owner shall sign a written waiver of the deadline for issuance of the final land use decision. A final decision of the city manager or hearing examiner on such types of land use decisions shall become effective on the date that the city council passes the ordinance for the development agreement. The period for appealing such final decision shall commence on the date that the city council passes such ordinance. A recommendation of the city manager or hearing examiner to the city council on such types of land use decisions shall be issued at least 10 calendar days prior to the public hearing on the proposed development agreement.

G. The City shall give notice of the meeting at which the city council considers a proposed development agreement, or amendment thereto, and of the public hearing(s) on the proposed development agreement, or amendment thereto, as follows:

1. Not less than 10 calendar days prior to the public hearing date, a notice of the public hearing shall be sent to property owners within 1,000 feet of the property subject to the development agreement and to others who have submitted comments and/or requested notice.

2. Notice of the public hearing shall be posted on the property subject to the development agreement not less than 10 calendar days prior to the hearing date. Notice shall be posted in the manner required by KMC 19.25.065.

3. Notice of the city council meeting and public hearing shall be published in the City’s official newspaper not less than 10 calendar days prior to the meeting or hearing date.

4. All costs associated with the public notice shall be borne by the owner.

5. All notices shall state that the city manager’s recommendation on the proposed development agreement is available for review at the front desk of City Hall and on the City’s website.

H. Any subsequent land use decisions shall be reviewed for compliance with the terms of the development agreement and any associated land use decisions. [Ord. 15-0395 § 1 (Att. A); Ord. 14-0391 § 2 (Exh. 1); Ord. 12-0347 § 1 (Att. A).]

18.110.060 Status, recording and amendment of development agreement.

A. Development agreements are not “project permit applications” as defined in RCW 36.70B.020(4). Therefore, there is no deadline for processing a development agreement.

B. The city attorney shall review and approve a proposed development agreement as to form at least 30 calendar days prior to the public hearing on the development agreement. The owner shall sign the development agreement before the public hearing on the development agreement. If a person or corporation has a “substantial beneficial interest in the property” as specifically described below, the owner shall submit to the city manager with the request for development agreement a document stating that such person or corporation concurs in the request and will not object to, contest or appeal any terms and conditions of the approved development agreement. A person or corporation having a “substantial beneficial interest in the property” shall include easement holders, lessees with a lease of one year or more, and persons or corporations with a recorded deed of trust or mortgage on the real property subject to the development agreement. The city manager shall have the authority to determine whether other persons or corporations with an interest in the real property subject to the development agreement have a “substantial beneficial interest in the property.” Within 20 calendar days of receiving written notice that the city manager has determined that other persons or corporations have a “substantial beneficial interest in the property,” the owner shall submit to the city manager the document described above for each such person or corporation.

C. The term of development agreements and extensions thereof shall be as follows:

1. Development agreements may be approved for a maximum period of 20 years.

2. In determining the appropriate term for a development agreement, the city council should consider the type, size and location of development and phasing if proposed. The city council may consider shorter terms with extensions.

3. If extensions are authorized in a development agreement, the owner must request the extension at least 90 calendar days prior to expiration of the term or any extension. For development agreements associated with land use decisions, the city manager may grant an extension for up to five years if the owner can satisfactorily show that, for a residential project, at least 50 percent of the residential units are constructed, or for nonresidential and mixed use projects, at least 50 percent of the gross floor area is constructed. All other requests for extensions shall be reviewed by the city council, unless another process is expressly provided for in the development agreement.

D. The City shall record an approved development agreement with the King County recorder’s office, at the cost of the owner.

E. The owner may request an amendment to a development agreement. Before voting on the amendment, the city council shall hold a public hearing. The city council shall approve, disapprove or modify an amendment by ordinance adopted by the vote of a majority plus one of the whole city council. The ordinance, if approving or modifying the development agreement, shall authorize the city manager to execute the amendment on behalf of the City. The city council shall not approve or modify an amendment unless it is consistent with any associated land use decisions and approved modifications thereto. [Ord. 15-0395 § 1 (Att. A); Ord. 12-0347 § 1 (Att. A).]