staff report no. 041a-17 - vancouver, washington...section 2. the covenant recorded under clark...

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STAFF REPORT NO. 041A-17 TO: Mayor and City Council DATE: 5/8/2017 FROM: Eric Holmes, City Manager 5/15/2017 Subject: Covenant release and adoption of a development agreement with Thunderbird Investments, LLC. Key Points: Thunderbird Investments, LLC, is requesting release from a 1970 rezone covenant restricting

the subject site to a maximum of 182 dwelling units so that up to 18 additional units may be added per the site’s current R-18 zoning designation.

A development agreement is proposed to mitigate the impacts of that development and related concerns expressed by neighbors.

Objective: To approve a request by Thunderbird Investments, LLC to execute a covenant release, and adopt a development agreement. Present Situation: In 1970, a covenant running with the land was recorded as part of a zone change of the subject site from AR to RD. The site is located at 4601 East 18th Street. The covenant restricts the property to a maximum of 182 dwelling units, which is below the 210 units that the current R-18 zoning allows. The current owners wish to construct up to a maximum of 18 units on the property in addition to the existing 180 units, for a total of 198 units. A development agreement is proposed to mitigate impacts of the future development. City staff met with the applicant and Island Park Condominium Association representatives on April 24, 2017. Substantial agreement was reached on changes to building design and privacy screening as well as on the construction of privacy and vegetation screening. Thunderbird agreed to an 8-foot wall, but that will require a variance issued by City staff with an appeal to the Hearing Examiner. The development agreement provides that no building permit shall be issued unless the variance has been obtained to ensure that the mitigation will take place. Advantage(s): 1. Allows the property owner to utilize their property pursuant to current zoning. 2. Expands the number of rental housing units on the market. 3. Expands the city tax base. Disadvantage(s): Increases potential impacts from additional dwelling units. These impacts will be evaluated during the site plan review process and mitigated pursuant to applicable regulations. In addition, the new development will be subject to the requirements of the proposed development agreement. Budget Impact: There will be no impact on the City budget created by the adoption of the proposed ordinance.

Staff Report 041A-17 5/8/2017 5/15/2017 of 2 Prior Council Review: A Council workshop was held March 27, 2017. Council conducted a public hearing on April 17, 2017, after which Council remanded the ordinance to allow for final negotiation between the developer and the neighboring condo association regarding mitigation of the impacts of construction. Action Requested: 1. On May 8, 2017, approve ordinance on first reading, setting date of second reading and

public hearing for Monday, May 15, 2017. 2. On May 15, 2017, subject to second reading and public hearing, approve the ordinance. Attachments:

A. Ordinance B. Development Agreement C. Ordinance M-1193 with Covenant D. Public comments

.

To request other formats, please contact: City Manager’s Office (360) 487-8600 | WA Relay: 711 [email protected]

ORDINANCE - 1

05/08/17 05/15/17

ORDINANCE NO. M-__________

AN ORDINANCE relating to planning and zoning; approving release of a recorded

covenant related to a prior rezone of property in the City of Vancouver at 4601 East 18th Street;

approving a development agreement, and establishing an effective date.

WHEREAS, the City Council adopted Ordinance No. M-1193 on Oct. 27, 1970, which

ordinance rezoned 11.69 acres of property located at 4601 East 18th Street, Parcel Nos. 29310000

and 29286000, from AR to RD, with the restriction that no more than 182 dwelling units shall be

built on the property, formalized in a covenant recorded under Auditor’s File No. G568983 with

the Clark County Auditor’s Office; and

WHEREAS, the covenant established specific development conditions for the subject

property; and

WHEREAS, the site’s current zoning is R-18, allowing 210 dwelling units on the property;

and

WHEREAS, market demand for rental units has risen dramatically in the region;

WHEREAS, a development agreement between the City and the property owner has been

written to address impacts to neighboring property; and

ORDINANCE - 2

WHEREAS, a duly-advertised public hearing was held before the City Council on May 15,

2017; and

WHERAS, after close of the public hearing, the City Council approved the requested

covenant release and development agreement as in the public interest;

NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF VANCOUVER:

Section 1. The legal description of the lands referred to in this Ordinance is as follows: #7

and #34 Edward Moore DLC, in the NE ¼ of SEC 25, T2N, R1E, WM, more particularly

described in Auditor’s File No. G568983.

Section 2. The covenant recorded under Clark County Auditor’s File No. G568983 is

hereby released.

Section 3. A development agreement between the City of Vancouver and Thunderbird

Investments, LLC is hereby approved.

Section 4. EFFECTIVE DATE. This Ordinance shall go into effect five days after final

passage.

Read the first time:

Ayes: Councilmembers:

Nays: Councilmembers:

Absent: Councilmembers:

ORDINANCE - 3

Read the second time:

PASSED BY THE FOLLOWING VOTE:

Ayes: Councilmembers:

Nays: Councilmembers:

Absent: Councilmembers:

SIGNED this ________ day of _____________________, 2017

________________________________ Anne McEnerny-Ogle, Mayor Pro Tem

Attest:

________________________________ R. Lloyd Tyler, City Clerk By: Carrie Lewellen, Deputy City Clerk

Approved as to form:

________________________________ E. Bronson Potter, City Attorney

ORDINANCE - 4

SUMMARY

ORDINANCE NO.____________

AN ORDINANCE relating to planning and zoning; approving release of a recorded

covenant related to a prior rezone of property in the City of Vancouver at 4601 East 18th Street;

adoption of a development agreement, and establishing an effective date.

The full text of this ordinance will be mailed upon request. Contact Raelyn McJilton, Records

Officer at 487-8711, or via www.cityofvancouver.us (Go to City Government and Public

Records).

Thunderbird Apts Development Agreement 1

RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Vancouver/City Clerk's Office PO Box 1995 Vancouver, WA 98668-1995

DEVELOPMENT AGREEMENT

Document Title: Development Agreement for Thunderbird Apartments Covenant Release and Development Grantor: City of Vancouver, Washington, a municipal corporation Grantee: Thunderbird Investments, LLC

Abbreviated Legal: #7 EDWARD MOORE DLC 6.73A, #34 EDWARD MOORE DLC E 4.96A Parcel Nos: 29286000 and 29310000 Reference Numbers(s) of Related Documents: G568983

___________________________________________________________________________ Effective Date: ______________________

Parties: THUNDERBIRD INVESTMENTS, LLC 9 SE 3rd Ave, #100 Portland, OR 97214 And CITY OF VANCOUVER, WASHINGTON a municipal corporation City of Vancouver PO Box 1995 Vancouver, WA 98668-1995


This Development Agreement ("Agreement") is entered into by and between the CITY OF VANCOUVER, a Washington Municipal Corporation (hereafter referred to as the "City") and Thunderbird Investments, LLC, a limited liability company of Oregon (who shall be collectively referred to herein as THUNDERBIRD"), and shall be effective as of the last signed date below.

RECITALS

A. WHEREAS, Thunderbird owns eleven and sixty-nine hundredths of an acre (11.69) of real property referred to herein as "Thunderbird", located at 4601 East 18th Street, west of General Anderson Ave. and south of East 18th Street in the City of Vancouver, Washington, which location is attached hereto (Exhibit A) and incorporated by reference herein (hereafter, the "Property"); and

B. WHEREAS, Thunderbird is proposing a development project (hereafter, the “Project”) for Thunderbird Apartments, which will include the addition of up to 18 new dwelling units constructed on the empty southeast corner of the Property. The Project limits are shown in Exhibit B; and

C. WHEREAS, Thunderbird Apartments was originally constructed in 1971 as a 182-unit apartment complex. In 1970, the Property was rezoned per Ordinance M-1193 to allow this density, and the City and Property Owners entered into an agreement and recorded A Covenant Running With The Land (Auditor’s recording number G568983; hereafter, the "Covenant"); which permitted the development of 182 units and 26 buildings; and

D. WHEREAS, the current zone for the property is R-18 (Higher Density Residential District) which allows for a greater density than the current 182 units; and

E. WHEREAS, in order to construct additional units on the Property, the covenant must be released by the City; and

F. WHEREAS, Thunderbird has requested the covenant release through permit PRJ-149020/LUP-51844, and it was placed on the City Council agenda June 20, 2016 (Item No. 8 – Covenant Release for Thunderbird Investments, LLC), in which the City Council required Thunderbird to enter into a Development Agreement and address concerns from the adjacent neighbor to the east of the Project at 4613 E. 18th Street, Vancouver, WA, 98661, Island Park Condominiums (hereafter, the “IPC”); and

G. WHEREAS, Thunderbird representatives met with IPC on October 17, 2016 and on April 24 and April 30, 2017 to discuss the concerns, and have set conditions as part of this Agreement in an effort to address the concerns of IPC.

NOW, THEREFORE, based on the foregoing Recitals, the parties agree as follows:


AGREEMENT

1. Development Agreement: This Agreement is a Development Agreement to be implemented in accordance with RCW 36.70B.170 through RCW 36.70B.210 and VMC Ch. 20.250. It shall become a contract between Thunderbird and the City upon the City's approval by ordinance following a public hearing as provided for in RCW 36.70B.170 and VMC 20.250.050. The recitals above are hereby adopted as findings in support of this Agreement.

2. Effective Date and Duration of Agreement: This Agreement shall take effect immediately upon its adoption by the City Council and execution by all parties; provided that any time periods specified in this Agreement shall be tolled pending any appeals of any city, state or federal land use decisions necessary to commence or complete development. This agreement shall expire 30 years after taking effect.

3. Purpose: For purposes of this Agreement,

3.1 The City releases the Covenant dated Oct. 15, 1970 recorded as document G568983.

3.2 The City will permit any future development on the subject Property under the City codes and development standards in effect at the time of application subject to the conditions provided for in Paragraph 3.3.

3.3 The City will permit a Project that is generally consistent with the site plan shown in Exhibit B and design details shown in Exhibit C as modified by the provisions in this Paragraph 3.3 subject to the following conditions below and subject to the codes and development standards in effect at the time of permit application:

(a) The expansion project shall be limited to the construction of:

i. A three-story apartment building with nine units (West Building).

ii. A two-story apartment building with six units (East Building).

iii. Three additional units may be built within the Thunderbird Apartment site as long as none of the units are within 100 feet of the east property line or within direct view of the Island Park Condominium Campus (IPC).

(b) In order to provide privacy for the IPC property, Thunderbird shall:

i. Place privacy screens on all decks of the East Building.

ii. Place privacy screens on the decks of the West Building where such decks face the IPC campus.

iii. Construct upper units with ½ privacy glass on windows (lower half of the glass will be frosted) with the exception of units that have windows facing directly south.


(c) The driveway leading to the proposed buildings will be a one-way road with cars traveling south to the new buildings constructed pursuant to this Development Agreement if such road is consistent with City development standards.

(d) Parking will be provided according to the conceptual site plan attached hereto as Exhibit B. Twenty parking spaces will be added north and west of the proposed buildings. Any additional parking added by Thunderbird will be restricted to areas west of the east building.

(e) A concrete sound barrier wall with a minimum height of eight feet will be placed along the east property line of the Thunderbird Apartments. The wall will begin at the southeast property line with IPC and extend north 240 feet to the north end of unit 28. The existing arborvitae, hedge, and fence shall be replaced. Because of the lower elevation of units 25-28, the wall will extend to height of eight feet to maintain a privacy screen. This condition is subject to the variance process provided for at Chapter 20.290 of the Vancouver Municipal Code because fences higher than six feet require a variance. Thunderbird agrees to apply for such variance. No building permits for the additional units authorized by this Development Agreement shall issue until the variance has been obtained. Nothing in this Agreement shall be construed to require the City to issue such variance. Any extension of the barrier wall by Thunderbird along the shared property beyond the end of the arborvitae hedge north that produces any significant landscaping disturbance will be restored by Thunderbird.

(f) Thunderbird agrees to replace the pine tree located at Unit 24 on the east side of the fence line with a tree to like kind and quality if it is compromised due to the proposed expansion project. Further, Thunderbird agrees to replace the landscaping on the condominium side of the wall if any of its construction activities damage such landscaping.

(g) The IPC irrigation system may be impacted due to the expansion project provided for herein. If IPC provides a commercially reasonable professional assessment of the impact of the wall construction on the irrigation system and repair cost estimate, Thunderbird will review such assessment and determine whether to repair the irrigation system at its expense or pay IPC for such repairs or whether the two properties should share in the expense. Thunderbird agrees to resolve the irrigation system matter in good faith.

(h) Plants shall be placed on both sides of the wall provided for in Paragraph (e). The plants shall provide screening roughly comparable to existing screening. Arborvitae shall be planted on the east side of the wall. Thunderbird will be responsible for replacement of any plants directly affected by the construction of the wall whether located on the east or west side of the wall.

(i) Future Thunderbird access to the IPC sewer line, if any, will be subject to future agreement between IPC and Thunderbird.


i If changes and modifications are required in 3.3 above as part of the land use permit for entitlement and the building permitting process, the City of Vancouver shall have the right to modify the conditions as part of the permit process.

B. Upon release of the covenant, the Property shall be permitted for any future development per the adopted City zoning, development and building codes in effect at the time of permit application. Conditions in 3.C are intended for the proposed Project in the southeast corner only.

C. In the event that the Project is not constructed or developed, it is the intent of the conditions set forth in section 3.3 above that they shall apply to the eastern boundary of Thunderbird and IPC for any future development. Additionally, Thunderbird must address concerns for visual, noise, and neighborhood impacts in coordination with the City and in accordance with City codes and standards.

4. Vesting: The Project shall not be vested. At time of application the Project will be required to adhere to the current use and development standard set by the City codes and regulations.

5. Project Alterations: Any changes or alterations to the Project shall be processed under the post decision review standards set forth at Vancouver Municipal Code Section 20.210.140.

6. Ownership and Warranty of Authority: The Property described in Exhibit A is currently owned

by or under the control of Thunderbird. Thunderbird warrants to the City that it is authorized to commence negotiation of this Development Agreement and to bind the Property covered herein and to bind any other entities and their heirs and assigns who have, or seek to obtain, an ownership interest in the Property.

7. Successors: This Development Agreement and all of its provisions shall be binding upon the City,

Thunderbird, and any and all of its assigns and successors in interest and any obligations made herein by Thunderbird shall be enforceable against all of its assigns and successors in interest into whose ownership the Properties may pass, and all of them, except as this Development Agreement shall expressly provide to the contrary.

8. Waiver: Failure by either party at any time to require performance by the other party of any of the

provisions hereof shall in no way affect the parties' rights hereunder to enforce the same, nor shall any waiver by the party of the breach hereof be held to be a waiver of any succeeding breach or a waiver of this non-waiver clause.

9. Severability: If' any provision of this Development Agreement, or the application of the provisions

herein to any person or circumstance, is declared invalid, then the rest of the Development Agreement or the application of the provision to other persons or circumstances shall not be affected.

10. Controlling Law: In the event of any litigation arising hereunder, or with respect hereto, the law of the State of Washington will control, and all signatories hereto, do hereby submit themselves personally to the jurisdiction of the courts of the State of Washington, and do hereby agree that any action arising hereunder may be instituted in Clark County Superior Court, if the parties are served, including anywhere not within the State of Washington, by any method authorized by Washington law.


11. Construction: This Development Agreement sets forth the entire agreement of the parties. This Development Agreement shall be construed as a whole. No amendment, change or modification of any provision of this Development Agreement shall be valid unless set forth in writing and signed by both parties. Approval of any such change by the City requires approval by the City Council after such public process as require by law. To the extent of any conflict with any City regulations which may otherwise govern the Properties, the terms and conditions of this Development Agreement shall prevail.

12. Term: No Term proposed. Once the Covenant is released, the subject Property will adhere to the codes and development standards required at the time of application.

13. Required Public Hearing: This Development Agreement is authorized by a resolution of the City Council of the City of Vancouver following a hearing as required by RCW 36.70B.170.

14. Threat to Public Health and Safety: Nothing contained in this Development Agreement shall preclude the City from exercising any and all rights it has under RCW 36.70B.170(4) to impose new or different regulations to address issues of public health and safety.

15. Binding Effect: This Development Agreement, or a summary thereof, shall be recorded against the Property and shall run with the land, subject only to the express conditions or limitations of this Development Agreement, and shall be binding upon and inure to the benefit of the respective successors and assigns of Thunderbird. Upon assignment of this Development Agreement or the conveyance of any parcel of the Property to which this Development Agreement is applicable, the assignee/grantee shall be deemed to assume all rights, obligations and liabilities set forth in this Development Agreement as they relate to such parcel.

16. Amendment: This Agreement may only be amended by mutual agreement of the parties. Agreement of the City requires approval by the City Council.

17. Duty of Good Faith: Each party shall cooperate with the other in good faith to achieve the objectives of this Agreement. The parties shall not unreasonably withhold requests for information, approvals or consents provided for, or implicit in this Agreement. The parties agree to take further actions and execute further documents, either jointly or within their respective powers and authority, to implement the intent of this Agreement and any subsequent Development Agreement.

18. Notices: All communication, notices and demands of any kind which a party under this Agreement is required to, or desires to, give to any other party shall be in writing and either delivered personally or deposited in the U.S. mail, certified mail postage prepaid, return receipt requested and addressed as follows:

To the Thunderbird Investments, LLC: Spencer Noecker, Managing Member 9 SE 3RD Ave. Portland, Oregon 97214 To the City: Chad Eiken, CED Director City of Vancouver PO Box 1995


Vancouver, WA 98668 DATED this _________ day of __________________, 2017.

CITY OF VANCOUVER, WASHINGTON, a Washington municipal corporation By___________________________ ERIC J. HOLMES Title City Manager_____________

THUNDERBIRD INVESTMENTS, LLC, a Limited Liability Company of Oregon By___________________________

Title__________________________

Attest: _____________________________ R. Lloyd Tyler, City Clerk By: Carrie Lewellen, Deputy City Clerk Approved as to form: _________________________________ Brent Boger, Assistant City Attorney


STATE OF WASHINGTON ) )ss. County of Clark ) I certify that I know or have satisfactory evidence that _________________________ is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the City Manager of the City of VANCOUVER, Washington, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.

Dated this _______ day of _____________________

____________________________________ Notary Public in and for the State of Washington, residing in ______________________________ My appointment expires: _____________________

STATE OF WASHINGTON ) ) SS. County of Clark ) I certify that I know or have satisfactory evidence that ___________________________ is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Executive Managing Member of the NBP Capital, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.

Dated this ________ day of ______________________

____________________________________ Notary Public in and for the State of Washington, residing in _______________________________ My appointment expires: _____________________

Exhibit A

Vicinity Map

Exhibit B Proposed Site Plan

Exhibit C

Design Details