HomeMy WebLinkAbout2026-09-14-cds-study-session-supporting-docs KITTITAS COUNTY COMMISSIONERS
CDS Study Session
Regular Meeting
Monday September 14, 2026 - 2:30 PM
BoCC Auditorium
205 West 5th Room 109 - Ellensburg
1. Call to Order
2. Citizen Comments (1 min. time limit)
3. Code Enforcement Upate
4. TDR Workplan Task 1: Technical Memo
5. Other Business - No Action to be taken
6. Concluded
Created on 9/9/2026 11:58:09 AM
KITTITAS COUNTY
COMMUNITY DEVELOPMENT SERVICES
2026 STUDY SESSION S'I'AFF REPORT'
STUDY SESSION DATE: September 14, 2026
TOPIC: Code Enforcement Update
ACTION REQUESTED: None:
BACKGROUND: KCCDS Code Enforcement Officer Laura Kukes, our
current code enforcement officer, took over the code
enforcement division in January of 2024,with 350 plus
open cases.
These current open cases span from 2008 to 2026.
• Remaining Open Backlog Cases prior to 2024: 58
• 2024-26 Current Open Cases: 38
• 2026 Possible Abatements: 1
INTERACTION: CDS.
RECOMMENDATION: None.
HANDLING: None.
ATTACHMENTS: Code Enforcement Progress Report
LEAD STAFF: Chad Bala, CDS Director&
Laura Kukes, Code Enforcement Officer
Board of County Commissioners J Updated through 2026 case activity
346 238 129 96
CASES CLOSED 2+YEAR CASES 5+YEAR CASES CURRENT CASELOAD
2024-2025 CASES CLOSED CLOSED All non-closed statuses
68.8%of cases closed in 2024-2025 had been open more than two years.Of the current 96-case caseload,60.4%predates 2024.
300 140 Age of Cases Closed 2024-2025
120
250
100
200
80
150
60
100
f 40 I
50 20
i
0 0
2024 2025 2026 0-180 days 181-365 days 1-2 years 2-5 years 5+years
Current Caseload by Opened Date 96 Cases
CURRENT CASELOAD
58 cases 1 60.4%
38 Cases Opened before January 1,2024
(39.6%) 58 Cases 38 cases 1 39.6%
Opened January 1,2024-Present
The combined historical and 2026 data contains 96 current non-
closed cases:74 marked Open and 22 in other active statuses such as
On Hold,Violation,Compliance Agreement,or Move to Violation.58
of the 96 current cases predate 2024.
Opened before Jan.1,2024 Opened Jan.1,2024—Present
Code Enforcement Notes:
2024-2025,two abatements under a superior court warrant have been completed
Mountain River Trails code enforcement case has been closed and completed
Looking forward:
One possible abatement in 2026
■ Five cases are in various stages of litigation proceedings
KITTITAS COUNTY
COMMUNITY DEVELOPMENT SERVICES
2026 STUDY SESSION STAFF REPORT
STUDY SESSION DATE: September 14t'', 2026
TOPIC: TDR Workplan Task 1: Technical Memo
ACTION REQUESTED: Direction
BACKGROUND: This technical memorandum fulfills the Task 1
deliverable of the Work Plan adopted as Exhibit A to
Resolution 2026-133.
Task 1 required staff to complete research, analysis,
and legal review of the TDR program codified in
Kittitas County Code(KCC)17.13.
Items within the technical memo include a Gap
Analysis, Inventory of existing TDR Activity,
Comparative/Best Practices review,&Legal review.
INTERACTION: CDS.
RECOMMENDATION: None.
HANDLING: None.
ATTACHMENTS: Technical Memorandum.
LEAD STAFF: Chad Bala, CDS Director &
Jeremy Johnston, Long Range Planner
KITTITAS COUNTY COMMUNITY DEVELOPMENT SERVICES
411 N.Ruby St.,Suite 2,Ellensburg,WA 98926
CDS@CO.KITnTAS.WA.US
Office(509)962-7506
"Building Partnerships—Building Communities"
HI371 rA5[:Ullll'y
MEMORANDUM
To: Board of County Commissioners &Planning Commission
From: Community Development Services
Date: September 15, 2026
Subject: Task 1 Staff Technical Memo—Research, Analysis &Legal Review
Transfer of Development Rights (TDR)Program
Work Plan under Resolution 2026-133 (Exhibit A)
1.Purpose
This memorandum fulfills the Task 1 deliverable of the Work Plan adopted as Exhibit A to Resolution
2026-133. Task 1 required staff to complete research, analysis, and legal review of the TDR codified in
Kittitas County Code (KCC)17.13, and to the Board of County Commissioners and Planning
Commission with a technical summary of findings and preliminary options .
Completion of this memo satisfies Task 1 and positions the County to proceed to Task 2: option
development and stakeholder engagement.
2.Work Completed under Task 1
Staff completed the following Task 1 work elements
• Gap analysis—Staff conducted a detailed comparison of KCC Chapter 17.13 against the
Washington State Department of Commerce comment letters dated March 27, 2026, and May 22,
2026, as well as relevant Growth Management Act(GMA)provisions, including RCW
36.70A.020,RCW 36.70A.030(38),RCW 36.70A.070(5), RCW 36.70A.090, and RCW
36.70A.110.
• Inventory of existing TDR activity—Staff compiled available records of TDR certificates
issued, letters of intent, and related activity. See attached Application/Certificate Inventory
Summary).
• Comparative/best-practices review—Staff examined TDR program structure,
implementation,utilization in King,Pierce, Snohomish, Kitsap, Thurston, and Whatcom
Counties.
• Legal review—The Prosecuting Attorney's Office evaluated vested-rights consideration,
potential takings exposure, and transition issues associated with substantial revision or
prospective repeal of the TDR program.
COMMUNITY PLANNING•BUILDING INSPECTION•PLAN REVIEW•ADMINISTRATION•PERMIT SERVICES•CODE ENFORCEMENT
3.Key Findings
A. Gap Analysis—Consistency with Commerce Comments and the GMA
The gap analysis identified structural concerns focused primarily on the receiving-site component of the
program:
In particular:
• KCC 17.13.015 and 17.13.030(1)(g) authorize all Rural Lands as receiving sites.
• KCC 17.13.030(1)(e) and(f)permit certain unincorporated planned unit developments (PUDs)
and long plats that increase density to serve as receiving sites.
• KCC 17.13.080(5) establishes a 1:1 exchange rate for"Rural Development."
• Collectively, these provisions create a pathway for rural-to-rural density transfers.
The Department of Commerce stated that these program features may produce the opposite of a TDR
program's intended outcome by encouraging additional growth in rural areas rather than directing it
toward incorporated cities and urban growth areas (UGAs).
Staff s analysis further indicates that the rural receiving-site framework raises consistency questions
under GMA goals and requirements addressing:
• Concentration of urban growth within UGAs;
• Reduction of sprawl;
• Protection of rural character; and
• Preferential location of urban growth within UGAs where urban services are available or can be
provided efficiently.
The Sending-site provisions of KCC 17.13, including farm, forest, and critical-area criteria, were found
to be generally consistent with conservation objectives and were not the primary focus of Commerce's
comments.
B. Inventory of Existing Activity
Available records indicate that the TDR program has experienced limited utilization for most of its
history. The program was adopted in 2009 and subsequently amended. Current records reflect
approximately 322 certificates. A substantial portion of those certificates were issued between 2024
and 2026. Several recent applications relied on provisions later identified by the Department of
Commerce as problematic.
C. Comparative Analysis of Other Washington Counties
Review of peer programs indicates that sustained private-market TDR activity has occurred primarily in
high-growth Puget Sound markets,most notably King County. Counties with more rural development
patterns,limited receiving-area demand,or fewer municipal partners have generally experienced modest
transaction volumes.
Several peer jurisdictions have responded by:
• Substantially revising their TDR programs;
■ Shifted emphasis to public purchase of development rights or conservation easements;
• Using TDR as a limited or residual conservation tool rather than a primary growth-management
mechanism; or
• Maintaining programs with limited activity due to restricted market demand.
Kittitas County's development pattern, available infrastructure capacity, and limited number of city
partners with active TDR frameworks more closely resemble jurisdictions with limited program
than the high-volume King County model. The absence of a TDR bank and limited interlocal
agreements with incorporated cities further constrain the ability of a private TDR market to function
effectively.
D.Legal Review—Vested Rights, Takings Exposure, and Transition
The Prosecuting Attorney's Office provided the following guidance, summarized for policy
consideration:
• Issuance of a TDR certificate does not vest a future receiving-site development application to the
regulations in effect when the certificate was issued. Vesting for the receiving-site project occurs
when a complete project application is submitted under the regulations in effect at that time.
• Previously issued certificates retain the TDR credit established through the completed sending-
site transaction, including the certificate's validity and quantity. However, issuance of a
certificate does not preserve prior receiving site regulations for future development proposals
They do not carry the prior code forward for future receiving-site projects.
• Previously issued certificates must remain redeemable. Eliminating a practical means of
redemption may create a takings concern.
• The County may amend receiving-site rules,provided the amendments do not make existing
certificates essentially un-redeemable.
• The County may prospectively repeal the TDR program if it adopts a"legacy certificate"
provision that establishes an enforceable transition framework for already-issued certificates.
Such a provision could apply the receiving-site rules in effect at the time of certificate issuances
or another clearly defined and legally supportable framework.
This legal guidance confirms that either substantial program revision or prospective repeal may be
legally feasible,provided that the County adopts appropriate protections for holders of existing TDR
certificates .
4. Preliminary Options
Consistent with the Work Plan, staff evaluated two primary paths.
Option A—Comprehensive Revision of KCC Chapter 17.13
This option would retain a TDR program but require substantial amendments to address structural and
GMA-consistency concerns. Potential amendments would include;
• Redefining eligible receiving sites,primarily limiting them to incorporated cities and UGAs with
adequate urban services capacity;
• Removing or significantly conditioning rural receiving site opportunities;
• Removing or revising receiving-site provisions applicable to certain unincorporated planned unit
developments and long plats;
• Revising and clarifying the exchange rate table, including the 1:1 rate for"Rural Development";
• Updating definitions,purpose statements, and implementation standards; and
• Consolidating or updating related Comprehensive Plan policies for internal consistency.
This option would also require carefully crafted transition provisions for previously issued certificates.
Continued administration would require ongoing staff capacity for tracking, certificate administration,
receiving-site coordination, and potential interlocal coordination with cities.
Option B—Repeal of the TDR Program with Transition Provisions
This option would discontinue the TDR program prospectively while establishing a legacy framework
for certificates already issued. Under this approach;
• No new TDR applications would be accepted after the effective date of repeal.
• Existing certificate holders would retain a defined and practical mechanism to redeem previously
issued credits.
• The legacy-certificate provision could apply the receiving-site rules in effect at the time of
certificate issuance or another specifically defined transition framework.
• Concurrent Comprehensive Plan amendments would remove or revise TDR policy references to
maintain internal consistency.
This option would directly eliminate the rural receiving-site framework identified by Commerce while
preserving the value and redeemability of existing certificates.
5. Staff Observations
The Task 1 findings support the following practical observations:
• The principal GMA-consistency concerns identified by Commerce are structural and are
concentrated in the program's receiving-site framework.
• Program utilization remained limited during most of the program's history. Certificate activity
increased primarily following the 2023 code revisions that are associated with the current
Commerce concerns.
• Peer-county experience suggests that private-market TDR programs face sustained demand
challenges outside high-growth urban markets.
• Legal review indicates that repeal is feasible if accompanied by a properly structured legacy
provision that protects the ability of existing certificate holders to redeem their credits.
• Maintaining a substantially revised program would continue to require administrative capacity,
tracking, and staff resources, and potentially, additional coordination with incorporated cities.
The County currently has no city participants suggesting a future program of limited potential, as
was demonstrated in the years preceding the stated changes flagged by the Department of
Commerce letters.
Both options remain available to the Board. The analysis indicates that Option B, implemented with
appropriate transition and legacy provisions, would more directly resolve the specific deficiencies
identified by Commerce,reduce future administrative complexity,ensure GMA compliance, and reduce
staff resources toward a consistently underutilized program,while still safeguarding the rights of
existing certificate holders.
6. Recommended Next Steps
Staff recommends that the Board provide direction on the preferred path:
1. Option A: Comprehensive revision of KCC Chapter 17.13; or
2. Option B: Prospective repeal of KCC Chapter 17.13 with transition and legacy certificate
provisions.
Upon Board direction, staff will proceed with Task 2 work, including detailed option development,
drafting of necessary code and Comprehensive Plan amendments, stakeholder engagement, and
coordination with the Planning Commission.
Attachments:
1. Gap Analysis of KCC Chapter 17.13
2. TDR Application/Certificate Inventory Summary
3. Comparative Analysis of Washington County TDR Programs
4. Legal Review Memorandum (Vested Rights, Takings Exposure, and Transition Issues)
KITTITAS COUNTY COMMUNITY DEVELOPMENT
SERVICES
411 N.Ruby St.,Suite 2,Ellensburg,WA 98926
CDS gCCO.KITTITAS.WA.US
"Building Partnerships—Building office (509)962-7506
1ClTi]YAti COlP.V71'
GAP ANALYSIS
Kittitas County Transfer of Development Rights (TDR) Program
Executive Summary
This gap analysis evaluates every relevant subsection of Kittitas County Code (KCC) Chapter 17.13 —
Transfer of Development Rights against the specific concerns raised by the Washington State Department
of Commerce in:
• March 27, 2026 Letter —Comprehensive Plan comments, including the recommendation to
consolidate TDR goals and policies under a dedicated TDR section in the Rural Element.
• May 22, 2026 Letter —Development regulations comments focused on TDR definitions (KCC
17.13.015),receiving sites (KCC 17.13.030(e), (f), and(g)), transfer process, and the exchange
rate table in KCC 17.13.080.
This gap analysis also includes a review of Kittitas County Code, Chapter 17.13 in reference to general
standards and guidance established under the Washington State Growth Management Act. CDS staff
found the following sections applicable to this evaluation;
• RCW 36.70A.020 (planning goals)
• RCW 36.70A.030(38)(rural character)
• RCW 36.70A.070(5)(rural element)
• RCW 36.70A.090(innovative techniques)
• RCW 36.70A.110 (urban growth areas)
Primary Finding: KCC 17.13.015 and KCC 17.13.030(1)(g) expressly authorize all Rural Lands as
receiving sites. KCC 17.13.080(5)provides a 1:1 exchange rate for"Rural Development."Together these
provisions allow rural-to-rural density transfers, which Commerce states"may have the opposite effect by
encouraging growth in rural areas" and which conflict with the GMA purpose of TDR programs—to
direct growth toward cities and UGAs while protecting rural character and resource lands. Commerce
recommends amending or rescinding the program.
Background, Code Framework, and Commerce Concerns
This section is an examination of the code framework being assessed in this gap analysis. It includes a
brief review of the primary elements of the Kittitas County TDR program and the specific issue noted by
the Washington State Department of Commerce.
Purpose—KCC 17.13.010:
"The purpose of the transfer of development rights (TDR) is to provide public benefits by permanently
conserving ruf al farm and forest land through acquisition and extinguishment of the development
rights on those lands designated as `sending sites.' ... Transfer through conversion of the acquired
development rights to density credits redeemable on eligible sites, designated as `receiving sites'per
KCC§17.13.030(l), shall be accomplished as set out herein."
The purpose correctly frames conservation, but the operational reference to receiving sites under
§17.13.030(l) incorporates the rural eligibility later identified as problematic.
Sending Sites—KCC 17.13.020
Sending sites must contain a public benefit. Eligibility is presumed if the site meets criteria 1, 2, 3, or 4:
• 17.13.020(1)Farm and Agricultural Land: Must satisfy(a)4d): zoning in Commercial
Agriculture,Ag-20,Ag-5,Forest&Range,or R-5; minimum five(5)acres; located within the
Agricultural Production District;proof of commercial agricultural income under RCW 84.34.
• 17.13.020(2)Forest Land: Must satisfy(a)—(d): zoning in Commercial Forest, Forest&Range,
Rural Recreation, or R-5; minimum five (5) acres; not publicly owned;Timber Management Plan
compliant with Department of Revenue guidelines.
• 17.13.020(3)Frequently Flooded Area 1 Critical Area: As defined in KCC §17A.02.140 or Title
17A; any lot wholly or partially impacted is eligible.
• 17.13.020(4): Lands designated as eligible sending sites in a TDR agreement with a city.
• 17.13.020(5)-(8): Must be located in Kittitas County; multiple lots must be contiguous; after
transfer the property is maintained consistent with the qualifying criteria via TDR easement;
publicly owned property is ineligible.
Note: Sending-site provisions are generally consistent with conservation objectives and are not the
primary focus of Commerce's criticism.
Receiving Sites—KCC 17.13.030 (Core Problem Area)
KCC 17.13.030(1) states in full relevant part:
"Eligible receiving sites shall be those sites as listed below and shall be located within Kittitas
County. ...
• (a) Cities where new growth is or will be encouraged under the GMA and Countywide Planning
Policies.
• (b)All city receiving sites shall be designated pursuant to an agreement with the County.
• (c) Sites within Urban Growth Areas, with a density greater than six (6) dwelling units (du)per
acre ...
• (d)LAMIRDs.
• (e)Unincorporated sites for which a Planned Unit Development(PUD) designation amendment to
the zoning map has been requested ... when such amendment results in an increase in density.
• (f)Unincorporated sites for which a long plat has been requested increasing the density above the
underlying zone's density ...
• (g) "All parcels designated as Rural Land shall be eligible to be a receiving site."
Commerce specifically flags subsections (e), (f), and (g) in the May 22, 2026 letter as creating"broad
ability to transfer development rights from one rural area to another."
Receiving Site Development Limitations—KCC 17.13.055
KCC 17.13.055(2)-(4):
"(2) The density within the established boundary may be increased over the underlying zone by the
number of TDR Density Credits. This means that the parcel sizes within the boundary may be
decreased.
"(3)No parcel with the project boundary shall be reduced in size below one-half acre except in a
Planned Unit Development as provided_for in KCC Chapter 17.36 or within a City, UGA or LAMIRD.
"(4) TDR Density Credits may be used to increase density in the following county actions; Boundary
Line Adjustments, Long Plats, Planned Unit Developments, Short Plats and Cluster Plats."
Exchange Rates—KCC 17.13.080(5)
Receiving Sites Exchange Rate
Urban Growth Areas 1 TDR Credit=3 Additional Units
Planned Unit Developments 1 TDR Credit=2 Additional Units
Rural Development 1 TDR Credit= 1 Additional Unit
In their May 22, 2026, letter the Department of Commerce described ambiguity associated with how the
table is applied. The concern centered on a lack of transparency regarding the application of additional
density credits, specifically whether the additional units described in the table are in addition to or
including the underlying density allowance.The intention of the table is to reflect the additional credits
allowed beyond the base density. The table will need to be amended to clarify this intention.
GMA Consistency Analysis
TDR's are authorized as an innovative technique under RCW 36.70A.090. The rural element(RCW
36.70A.070(5)(b))permits density transfer only to the extent resulting densities and uses "are not
characterized by urban growth and that are consistent with rural character." This section examines the
Kittitas County TDR program in relationship to general GMA standards and guidance.
Conflict with Urban Growth and Sprawl Goals—RCW 36.70A.020(1)—(2)
Goal 1 requires encouragement of development in urban areas where adequate public facilities exist or
can be efficiently provided. Goal 2 requires reduction of the inappropriate conversion of undeveloped land
into sprawling, low-density development. KCC 17.13.030(1)(g)and the rural development exchange rate
in KCC 17.13.080(5) allow additional residential units on rural lands,working against both goals.
Conflict with Rural Character—RCW 36.70A.030(38) and .070(5)(c)
Rural character requires that open space and natural landscape predominate, that urban governmental
services generally not be required, and that inappropriate conversion to sprawling low-density
development be reduced. KCC 17.13.055(2)—(3) expressly authorizes decreased parcel sizes (down to
one-half acre)when TDR credits are applied. On rural receiving sites this produces a more intensive built
pattern inconsistent with the statutory definition of rural character.
Conflict with Service Levels—RCW 36.70A.110
RCW 36.70A.110 directs that urban growth be located preferentially inside UGAs that already have or
will have urban facilities and services. By making every rural land parcel a potential receiving site(KCC
17.13.030(1)(g)), the code bypasses this direction.
Limits of the Innovative-Techniques—RCW 36.70A.070(5)(b) and .090
Density transfer is permitted only when the result remains consistent with rural character and is not
characterized by urban growth.A program whose definitions and receiving-site list systematically
authorize additional units on any rural land exceeds the intent of the TDR tool.
Summary of Gaps with Code Citations
Exact Code iProvision
Date)
G-1 17.13.015 (Receiving All rural lands eligible; no RCW 36.70A.020(1)--(2); .110;
site; TDR density credit); infrastructure differentiation .070(5)(c); .030(38)
17.13.030(1)(g) (May 22)
G-2 17.13.030(1)(e) and(f) PUDs and long plats increasing RCW 36.70A.070(5); .030(38)
density as receiving sites (May
22)
G-3 17.13.080(5)Rural rate; Unclear application of RCW 36.70A.030(38);
17.13.055(2)—(3) "additional units"; rural 1:1 rate .070(5)(c)
(May 22)
G-4 17.13.015 definitions Definitions lack capacity/urban RCW 36.70A.110; .090
criteria(May 22)
G-5 17.13.010 (purpose Purpose does not constrain Internal consistency; RCW
references 17.13.030(1)) receiving sites to urban/UGA 36.70A.090
G-6 Comp Plan (scattered No consolidated TDR section in RCW 36.70A.070(5)policy
TDR references) Rural Element(March 27) clarity
G-7 17.13.030(1)(d)—(e) + PUD spans urban/rural; RCW 36.70A.070(5)(d); .360
PUD/LAMIRD code LAMIRDs undifferentiated(both
letters)
Recommended Code Revisions to Close Identified Gaps
Commerce's May 22 letter offers two procedural paths: amend or rescind the program, and/or adopt a
temporary moratorium under RCW 36.70A.390. Kittitas County enacted a TDR moratorium on June 8,
2026,pursuant to the Department of Commerce recommendations. Substantive revisions that would
resolve the cited gaps include:
• Amend KCC 17.13.015: Redefine "Receiving site" to exclude the phrase "all the Rural Lands"
and to require location within a city(per agreement), a UGA with demonstrated urban services
capacity, or a specifically designated Type I LAMIRD under controlled infill standards. Redefine
"TDR density credit"to remove"or land with a Rural Land designation."
• Amend KCC 17.13.030(1): Delete or substantially rewrite subsection(g). Revise (e) and(f) so
that only PUDs and long plats located inside UGAs(or cities)qualify as receiving sites, or impose
absolute rural density ceilings consistent with the County's adopted rural character definition.
• Amend KCC 17.13.080(5): Remove the "Rural Development— 1 TDR Credit= 1 Additional
Unit"row, or replace it with a provision that TDR credits may not be used to increase density on
lands designated Rural outside UGAs/LAMIRDs. Clarify that"Additional Units"means density
above the underlying zoning maximum and only in designated urban/UGA receiving areas.
• Amend KCC 17.13.055: Limit the authority to decrease parcel sizes and increase density via TDR
to projects located in cities,UGAs, or Type I LAMIRDs.
• Amend KCC 17.13.010: Add language stating that density credits are redeemable only on
receiving sites that direct growth into cities and UGAs, so the purpose and operational sections are
consistent.
• Comprehensive Plan: Create a dedicated TDR subsection within the Rural Element consolidating
goals and policies, as recommended in the March 27 letter.
Conclusion
The sending-site provisions of KCC 17.13.020 are generally consistent with GMA resource-land and
critical-area conservation objectives. The receiving-site side of the program is not. The combination o£
• KCC 17.13.015 definitions authorizing use on "all the Rural Lands" and"any ... land with a Rural
Land designation,"
• KCC 17.13.030(1)(g) declaring"All parcels designated as Rural Land shall be eligible to be a
receiving site,"
• KCC 17.13.030(1)(e)—(f) allowing density-increasing PUDs and long plats in unincorporated
areas,
• and KCC 17.13.080(5)providing a 1:1 exchange rate for Rural Development,
creates a lawful pathway for rural-to-rural density transfers. Commerce has identified these provisions as
ambiguous and potentially contrary to the purpose of TDR under the GMA. The gaps conflict with RCW
36.70A.020, .030(38), .070(5), .090, and .110.
Closing the gaps requires targeted amendments to the cited subsections. This analysis is based on the text
of KCC Chapter 17.13, the two Commerce letters, and the cited GMA provisions.
Kittitas County TDR Record
File Number Applicant Sending Site Parcel# Approval Date &ending Site Certificates Issued
TD-12-00001 Sky Shelton 255134 7/19/17 7
TD-15-00001 Forterra 795233.845233 11/17/15 24
TD-15-00002 Forterra 274935,933236 11/25/15 8
950570,950581,950582,
950583,950584,950585,
9505B6,950587,950588,
TD-24-00001 Blue Jay Land Company 950589,950590,950591, 7/15/25 21
950592,950593,950594.
950595,950596,950597,
950598,950761,590762,
21293,21295,21296,
TD-24-00004 James Williamson and Mary Benjamin 954725,954726,954727, 2/20125 10954728,954729,954730,
954731,
TD-24-00005 S ritwind Farm 949820 8/10/25 1
11109,11584,20614,
20615,20616,20617,
20618,20619,20620,
20621,20622,20623,
20624,20625,20631,
20632,20633,20634, 6/11/25 34
TD-24-00006 Spirltwind Farm 20635,20636,20638,
20640,20641,20642,
20643,20644,20645,
20646,20647,20648,
20649,20650,219133,
329133
18309,18311,18312,
18316,18317,949812,
949813,949814,949815,
949816,949817,949818,
949819,949832,949833,
TD-24-00007 Granite Creek East LLC 949834,949835,949836, 6/10125 30
949837,949838,949B39,
949840,949841,949842,
949843,949843,949844,
949845,949846,949847,
949850
TD•26.00001 Solar Dollar LLC 16833 6/24/26 1 18
TD-26-00002 Windy Gity Hotdin s 982710,962711.962712 167
TD-26-00003 Solar Dollar LLC 266133 2
Total Certificates 322
TDR Program Comparative Analysis
1.Purpose and Scope
This report summarizes the structure and performance of TDR programs in other Washington counties(drawing from the comparison of King,
Pierce, Snohomish,Kitsap,Thurston, and Whatcom),provides concrete examples of relative success or limited results, and compares those
experiences to Kittitas County.The analysis evaluates whether it makes sense for Kittitas County to modify and retain its TDR program(KCC
Chapter 17.13)after the six-month moratorium on new TDR applications enacted June 8,2026(Resolution 2026-101 under RCW 36.70A.390).
The moratorium was imposed to review regulations for consistency with the program's intent.
2.TDR Comparative Structures
TDR programs in Washington State fall into one of three categories;regional(LCLIP),local,and mixed.Regional programs are utilized
exclusively west of the Cascades.For purposes of this report,all regional TDR programs also include a local option,so they fall into the mixed
category.CDS spent limited time comparing the structure of our TDR program to these jurisdictions as the regional element and interlocal
agreements with municipalities position these examples as inconsistent with the Kittitas County landscape(TDR interlocal agreements,etc.).
Among the remaining jurisdictions utilizing local programs,the general TDR structure remains largely consistent with Kittitas County.With the
exception of the issues described by the Washington State Department of Commerce(letters dated March 27 and May 22,2026),other
jurisdictions utilize similar criteria and processes. One difference is the management of approved certificates.Kittitas County utilizes private banks
where owners of certificates can sell their certificates in the private market while some other jurisdictions provide a banking/exchange service
where the County jurisdiction manages and distributes certificates after connecting buyers and sellers. Some jurisdictions provide both private and
county-managed transactions.
3.Summary of TDR Performance in Other Washington Counties
TDR programs aim to permanently conserve rural,agricultural,forest,or critical lands(sending sites)by allowing landowners to sell development
rights that developers then use for bonus density or intensity on designated receiving sites(typically urban growth areas or cities). Success depends
heavily on strong private-market demand in receiving areas,clear incentives, administrative capacity,and often public support mechanisms such as
TDR banks.
High-performing example—King County
Started in meaningful form around 2001 (with earlier pilots).
• Conserved approximately 147,000-148,000+acres(the most successful TDR program in the United States by acreage).
• Over 200 sending properties protected,roughly 139-140 receiving-area projects.
• Thousands of rural TDRs transacted(2,134 rural TDRs sold 2000-2024 across 160 transactions)plus urban TDRs; 1.7 million square feet
of additional development in Seattle alone;total market value of TDRs used around$60 million.
• Success drivers:robust TDR Bank that bridges supply and demand, strong interlocal agreements with cities(Seattle,Bellevue,Issaquah,
Sammamish, Shoreline,etc.),high urban development pressure,and participation in the regional LCLIP program.
• Even here,private-market activity has been quiet in some periods(e.g.,recent years in Seattle),showing sensitivity to real-estate cycles.
Limited or underperforming examples
• Pierce County(codified 2007):Early activity faded after 2017;the county bank held only 58 development rights from 2012 purchases.
The program was effectively dormant and required a full overhaul to simplify rules,update pricing/exchange rates, and enable regional
participation.Conservation Futures remains a more active preservation tool.
• Snohomish County(countywide 2013):Approximately 178 acres conserved via TDR since 2006.Limited demand led the county to fund
consultants in 2025 to establish a TDR Bank modeled partly on King County.
• Kitsap County(2006,updated 2016):Part of the regional alliance,but publicly reported TDR-specific acreage and transactions remain
modest.
• Thurston County(1995):Restricted primarily to Long-Term Agriculture sending areas.Early reports noted only about 181 acres via two
projects;market demand constrained by limited eligible sending land and weaker receiving-area interest.
Whatcom County(TDR 1999):Minimal private-market activity.The county shifted primary emphasis to a public Purchase of
Development Rights/Conservation Easement Program(CEP),which has protected nearly 2,000 acres(mostly farmland)using
Conservation Futures and grants.TDR code remains but is secondary.
Summary: Only King County has achieved large-scale, sustained private-market success.Most other programs see limited transactions,require
ongoing public subsidies or banks,face demand shortfalls in receiving areas,or evolve toward direct public purchase(PDR).Regional tools
(LCLIP and inter-county transfers)are available mainly in the central Puget Sound counties and still depend on city willingness to accept density.
4.Kittitas County TDR Program Overview
Kittitas County adopted its TDR program in 2009(KCC 17.13),with subsequent amendments. Sending sites focus on farm/agricultural lands
(generally minimum 20 acres in specified zones within the agriculture zones,forest lands,and frequently flooded areas.Receiving sites currently
include Urban Growth Areas,Planned Unit Developments,and certain rural rezones,with exchange rates such as 1 TDR credit=2-3 additional
units depending on the location.The inclusion of rural receiving sites triggered GMA concerns from the Washington State Department of
Commerce.
The Kittitas County TDR program resulted in limited public utilization until the program was revised in 2023.The revisions expanded the program
to allow for the options later deemed inconsistent with GMA TDR guidelines.The Washington State Department of Commerce noted that they had
not been notified of the revisions in 2023 prior to adoption,as is generally required for legislative amendments. Since adoption of these revisions
in 2023,the program has received more interest,however some applications have acted on the 2023 revisions in which the Department of
Commerce has since raised concerns.
Kittitas is a rural,central Washington county with primary urban centers in Ellensburg and smaller communities such as Cle Elum.Development
pressure,infrastructure capacity,and land values differ markedly from the high-growth Puget Sound region.The existing interlocal agreement with
the City of Ellensburg adopts the City of Ellensburg's Intensity Standards(ECC 15.320.030)within the unincorporated UGA.Due to this,any
TDR receiving site credits applied within the Ellensburg UGA will likely require either an amendment to the interlocal agreement and/or the City
of Ellensburg to adopt a TDR program to accommodate receiving sites. Cle Elum is the only other significant UGA within the County.Cle Elum
also does not have a TDR program.These circumstances leave the Cle Elum UGA as the only eligible UGA for TDR receiving sites.
5.Comparative Analysis: Kittitas versus Other Counties
Successful Contexts(esp.
Factor King) Typical Limitations Kittitas County Context
High urban density
Receiving-area pressure strong city Weak or inconsistent demand Moderate growth; limited large-scale urban receiving sites and
,
demand weaker developer demand for bonus density
partnerships
Market scale& Thousands of TDRs; $tens Dozens of rights or low
transactions of millions hundreds of acres over many Sparse documented activity and isolated certifications
program years
Successful Contexts(esp.
Factor Typical Limitations Kittitas County Context
King)
Support Active TDR Bank+
Often missing or recently added.No bank;no city interlocals for TDR's.
mechanisms interlocals+LCLIP
Often outperform TDR Existing land trusts,conservation easements,water-related
Alternative tools Complements TDR (Conservation Futures,PDR, programs,and potential Conservation Futures-style tools
land trusts) already used for resource protection
Administrative Justified by volume High relative to results Ongoing staff time for applications,easements,tracking, and
burden now moratorium review
Geography& High-value urban fringe Mixed Rural character,agricultural/forest base,tourism;lower overall
economy real-estate intensity
Kittitas shares more structural characteristics with the limited-activity counties(Pierce,Snohomish,Thurston,Whatcom,Kitsap)than with King
County.Lower receiving-area demand is the most critical constraint:without consistent developer willingness to purchase TDRs for meaningful
density bonuses,the private market remains thin.Conservation goals can often be met more directly and efficiently through public purchase,land-
trust easements,or existing resource protections.
6.Assessment of Benefits versus Costs for Kittitas
Potential benefits(theoretical and limited observed):
• Voluntary compensation for rural landowners who place permanent conservation easements.
• Focusing some growth into UGAs or PUDs.
• Avoiding full public acquisition costs for conserved land.
Observed and structural limitations:
40 Sparse evidence of significant acreage or frequent transactions after 15+years.
• No city TDR programs/interlocal agreements to increase TDR utilization opportunities.
► High administrative complexity relative to results(application review,certificates,easements,tracking,etc.).
► Dependence on private-market demand that appears insufficient given local growth patterns.
• Opportunity cost: staff and policy attention diverted from more effective tools.
• Risk of program becoming a paper exercise that creates expectations without delivering conservation at scale.
7.Recommendation
It does not currently make strong sense to retain the TDR program in its existing form without substantial modification.Available
evidence supports the assessment that the program has provided limited benefit to Kittitas County relative to its complexity and the experience of
comparable jurisdictions.
Recommended path during and after the moratorium period:
1. If retention is desired for policy continuity or as a residual voluntary option:
o Significantly simplify eligibility,exchange rates,and process.
o Consider requiring TDR only in specific high-impact contexts(e.g.,certain PUD density bonuses)rather than as a general tool.
o Explore a limited public bank only if clear demand and funding exist(most non-King counties found this necessary yet still
struggled).
o Explore municipalities'interest in developing a complimentary program.
2. If elimination of the program is desired:
o Explore legal implications for existing credits.
o Clarify credit and Letter of Intent holder rights moving forward.
o Conduct a Comprehensive Plan review of TDR policies.Draft revisions to reflect elimination of the program.Move
Comprehensive Plan Amendments and revocation of TDR program through the legislative process concurrently to ensure
continuity.
Discontinuing or converting the program would not leave Kittitas without conservation tools;it would align the county with the majority of
Washington jurisdictions where pure TDR has underperformed outside high-demand urban markets.Any decision should include clear
communication with affected landowners who may hold existing Certificate Letters of Intent and coordination with the ongoing Comprehensive
Plan update process.
Cottrity Program Staftl Key Dates SeticlingSiteii.■Areas Receivi Sites IAre as Success Wkirics(Acees.Trans or tions,etc,) Notable l nformatlon/Current Status
Partner cities(Seattle,
Rural/resource lands, Bellewe,Issaquah,
urban source lands
Sammamish,Normandy 148,000+acres consened(mostsuccessful in U.S.byacreage) 140 Strong TDR Bank+private market lnerlocal agreements and LCUP
Major program 2001 lea Hier limited Alm Park Shoreline as newes0+ receiwngarea projects.Z134 rural TDRs sold(2000-2024)across 160 participation.Supports Land Conservation Initiative.Market quieter
King agrlcultural/forestfocus n
1998) corporaledurban areas vansactions;addidonalurban TDRs 17rn111ionsgftaddedin Seattle recently in some areas(e.g,Seattle)but projects restarting ongoing
erns-bonus cosOR,lxassltxle un'Exchange rates va ry by alone.Total marketvalue ofTDRs used$60 million(bank+prhee). acquisitions and partnerships.GHG reduction co-benefits noted.
in some Cases. terlocal agreement(e.g,sq
it or units).
Rural and resource lands S-80acres per right Limited priwteacnivityafter-2017 County TDR Bankholds SB
side UGAs(min.Sacres dependingonzone cievelopmentrights(last major purchases 201Z avg.511,600each)
Inside UGAs and partner ossible.under umatidiulerlowq-regional
Pierce Codified 2o07 contiguous-public benefit Participates in Central Pud Earlierregional reports noted low hundreds of acres under TDR
required-mningbased Sound Regional TOR transfers possible under updated rules asements.Program largely dormant post-2017 Programoverhauledln
allocation program. 2025,nodata availablew indicate results.
Designated farm and forest
lands(min 5contiguous UGNs(especially E)dstingframeworkfacezopemtionalconstrainu Activelyestablishinga
acres)-calculation based
Pilotmid-2000s-countywide effective Oc multifamily),partner cirri rs, 178 acres conserved via TDR since 2006.Limited demand and TDR Bankm improve marketfuncuon and scale conservation 5vonger
Snohomish on existing lots+remaining re
2013 and unincorporated urban vansa,vons historically. suits via Conservation Futures for direct easements/acquisitions.
density(e.g,1 credlNl0 areas-regional options. Participates In regional program.
yes farm,1/80 acres fores
In some cases)
Designated rural,farming
and open space areas per Designated urban/recelving Panofthe Regional TDR Alliance Program ex0sts to preserve rural
IOtsap 2006ordlnance-updawdas Ch.17.580in Comprehensive Plan/mning areas-cansupponrezones Limited publicly reported transaction/acreage too is specific to TOR. character,farming and open space while allowing urban intensity.
2016 -base denityor lot-based ordensityincreases- TOR Exchange has listed certified rights for sale in the past(2012). Activityappearsmodestcomparedwlth King County Conservation
calculation-perpetual regional potential. Futures andothertools also useciforpreservauon.
easements required.
Primarilylong-Term
Agriculture zoning-1 credit
per sacres(after Olympia,Lacey,Tum ter, Challenges include restricted sending eligibility and weaker receiving
Thurston 1995ordinance s,btr ctin9exisdng and approved UGAs/county Limited:earlyrepons noted 181 acresvia two projects(around 2011). ar m eadeand Relies more heavily on C va onsertion Futures/Purchase of
residences).Limited recelvingareas(residential Ma rket demand contra lned. Development Rights for farmland preservation.Inerjurisdictional
ehp bcltty bcca us a many densitybonuses) agreements with cities
tarnx Are ama It rnh not
a ppropriatelyzoned
Priv TDR ma rketdid not function well Emphasis shifredm public
Various rural/ag/forest Urbangrowdh areas or cities Purchase of Dc„elapment Rights(stared 2002),exp ndedand renamed
Whamom TDRadopted 1999-Amended in 2005 —nes under original TDR (historically limited Minimal private TOR marketactiviry Cons ervation Easement Program(CEP)in 2021 CEPhasprotectednearly
rules. interaction). 2,O acrm(mosdycommercialfarmland),fundedby Conservation
Futures+grants TOR code remains on the books but is secondary.
KITTITAS COUNTY COMMUNITY DEVELOPMENT SERVICES
411 N.Ruby St.,Suite 2,Ellensburg,WA 98926
CDS@CO.KITTITAS.WA.US
Office(509)962-7506
"Building Partnerships—Building Communities"
H1171'1 AS COOMY
[ _ I .
Legal Review of Vested Rights, Takings Exposure, and Transition Issues if Repeal is
Selected.
Prepared in Partial Fulfillment of Task#1
of the
Kittitas County TDR Moratorium Work Plan
(Resolution 2026-133)
Date: September 15 , 2026
Subject: Task 1 Legal Review—Vested Rights, Takings Exposure, and Transition Issues
Transfer of Development Rights (TDR)Program
Work Plan under Resolution 2026-133, Extending the Moratorium(Exhibit A)
1.Purpose and Background
This memorandum documents the legal review item required under Task 1 of the Work Plan(Exhibit A
to Resolution 2026-133, extending the moratorium on new TDR applications). Task 1 directs staff to
complete, among other items, a"Legal review of vested rights,takings exposure, and transition issues if
repeal is selected."
The analysis below is based solely on the response provided by the Kittitas County Prosecuting
Attorney's Office.
2. Scope of Review
Consistent with the Work Plan, the review is limited to:
• Vested rights associated with existing TDR certificates and subsequent receiving-site
applications;
• Takings exposure related to previously issued certificates; and
• Transition issues if the TDR program is repealed.
3.Legal Department Analysis
A. Vested Rights
Legal review:
• If someone acquired a valid TDR certificate in an earlier year(for example, 2015)but does not
submit a receiving-site development application until a later year(for example,2026), the
certificate's original issuance date does not serve to vest the future receiving site to the
regulations that were in effect when the certificate was issued.
COMMUNITY PLANNING•BUILDING INSPECTION•PLAN REVIEW•ADMINISTRATION•PERMIT SERVICES•CODE ENFORCEMENT
• Washington's vesting statute provides that a complete preliminary plat or short-plat application
is considered under the subdivision, zoning, and other land-use-control ordinances in effect when
the complete application is submitted.
+ KCC 17.13.030(2) addresses receiving-site development proposals that vest. It does not provide
that the receiving site vests at the time the TDR certificate is created.
The code in effect at the time a complete receiving-site application is submitted is the code that
governs that application.
When a receiving-site application is received,the sending-site transaction has already occurred.
That history is important in establishing the validity and quantity of the TDR credits. Those
credits do not fluctuate with later code changes.
An older certificate does not carry the older code with it. It carries the TDR credit. When the
holder of that certificate submits an application for a receiving site,that is a new
application/project that will vest to the code in effect at the time of the completed application.
B. Takings Exposure and Transition Issues if the Program Is Repealed
Legal review:
• Repealing or substantially changing the TDR program could create a takings or other legal
claims or exposure if the action destroys or substantially impairs the value associated with
outstanding certificates.
• The nature and degree of that exposure may be mitigated by adopting a"legacy certificate"
provision that provides a mechanism for using such certificates. The County could amend or
implement code changes to govern the future use of outstanding certificates.
4. Relationship to Work Plan Options
If the Board selects either option presented, outstanding certificates should be specifically addressed as
part of the legislative action. The Board may consider transitional or"legacy certificate"provisions to
address the use or value of previously issued certificates and reduce potential legal exposure. The
appropriate mechanism should be determined based upon the legal status of the outstanding certificates,
applicable TDR documents, and the regulatory changes ultimately adopted.