Many cities, towns and counties substantially revised their development regulations and permit processing requirements after the adoption of the Growth Management Act and the Regulatory Reform Act – over 15 years ago. Since then, a number of these local governments may have amended the codes on a piece-meal basis or not at all, resulting in problems with permit processing and issuance. Code amendments are usually put off because the process can be time-consuming and expensive.
However, Morris Law has drafted a “model code” that can serve as the basis for those regulatory chapters in a local government’s development code that must be generally uniform and consistent with state law. Use of this model code will eliminate the substantial amount of time the city attorney would spend drafting the necessary revisions. In addition, the model code can be updated through an optional subscription service. Updates would be triggered by changes in statutory and case law, and would timely provide the local jurisdiction with ready-to-adopt code amendments in the form of draft ordinances.
I. More Complete Description of Services Provided.
A. Model Code.
While it is true that there are chapters in a municipality’s development code that reflect the unique character of that jurisdiction, there are some very important chapters that must be substantially the same in all Washington cities and counties. Because these chapters must be generally uniform in all Washington cities and counties, Morris Law has developed a “model code” that can be customized for each jurisdiction, depending on the flexibility provided by the legal framework. For example, while a city may be required to have a procedure for short plats and criteria for approval consistent with chapter 58.17 RCW and chapter 36.70B RCW, each jurisdiction may identify the elements of a complete application. On the other end of the spectrum, a municipality has more flexibility in the chapters on nonconforming uses/structures, or the choice between code enforcement schemes and procedures, as long as they meet legal requirements.
Morris Law’s “model” ordinance can be folded in the development code to work with every unique zoning district provisions, and has fully complete chapters on subdivisions, project permit processing, impact fees, concurrency, and other regulatory chapters that municipalities must include in their development codes. This model can be inexpensively tailored to the needs of an individual municipality. The customization of the model code for a municipality involves coordination between the attorneys at Morris Law and the municipality’s planners/attorneys to ensure that the product reflects the municipality’s needs and is still consistent with applicable law.
The model code is available for review by potential clients. It has been specifically developed to be easy to use and to address a number of issues that are either not mentioned or that are summarily covered in other codes. For example, the model code addresses the appropriate use of bonds, development agreements, development phasing and conditioning of permits.
B. Annotated Version of the Model Code.
Rather than purchasing the model code, some jurisdictions may choose to simply copy the model code adopted by a city once it is available on the internet. However, it should be acknowledged that every ordinance defined as a “development regulation” is considered by the planning commission and city council in at least one public hearing and one public meeting. This means that changes are frequently proposed and made to the model code prior to adoption. Therefore, anyone simply copying the code from the internet assumes the risk that it is different from our model code and perhaps the recommendations of the attorneys at Morris Law.
One of the biggest benefits to purchasing the model code from Morris Law is the fact that it includes another (copyrighted) version, which is completely annotated with statutes, case law and practice tips. This will help the municipality’s attorney, planners, planning commission and council members save time and money by accessing the law applicable to each section of the model code. For example, the model code will address the criteria for approval of a permit, but the annotated version of the model code will include the “tests” adopted by the federal and state courts that must be considered by the decision-makers to fashion a permit condition that will withstand judicial scrutiny. The annotated model code will also provide practice tips to assist processing and ensure legally defensible decisions.
C. Model Code Updates through Subscription Service.
Once the municipality adopts the model code, an optional subscription service may also be purchased to provide code updates as state statutes are amended by the Washington State Legislature and to address new court decisions. These updates will be timely issued, and provided only as needed (to reflect statutory amendments or new case law). Cost of the updates will depend on the legislative and judicial changes, but will generally be spread as much as possible among all of the municipalities participating in the subscription service. Because the local jurisdictions participating in the subscription service will likely have adopted the model code, the updates (provided in the form of draft ordinances) will need few changes to process and adopt.
D. Additional Detail. Here is additional information about the specific ordinances and services that Morris Law can provide:
1. Comprehensive Plan. Customize a model code for the procedures involved in the adoption and amendment of comprehensive plans (for all municipalities, including those planning under the Growth Management Act), to address requirements for public notice, public participation, integration with the State Environmental Policy Act (SEPA), the Shoreline Management Act and county-wide planning policies, amendment suggestion and docketing procedures. Attend public hearings on comprehensive plan ordinances and amendments to answer questions and otherwise provide support to the municipality. If an appeal is filed, provide legal representation of the municipality before administrative agencies and the courts. Or, provide assistance to the municipal attorney’s representation of the municipality, which may include the drafting of an initial assessment of the issues raised in the appeal, drafting of briefs, evaluation of the municipalities’ likelihood of prevailing on the merits, settlement options, etc.
2. Zoning and Subdivision. Customize a model code for permit application requirements, criteria for approval and processing of boundary line adjustments, short plats, preliminary plats, final plats and binding site plans, as required by the Subdivision Act. Customize a model code permit processing, to integrate SEPA and the requirements of Regulatory Reform for all municipalities, including those planning under the Growth Management Act. Customize model code to address the application requirements, criteria for approval and processing of permits of all types, including, but not limited to, variances, conditional use permits, special use permits.
Draft ordinances to satisfy requirements for transportation concurrency as well as to ensure that public utilities and public services will be available when the impacts of development occur. Draft ordinances for the adoption of park, school and transportation impact fees.
Attend public hearings on zoning and subdivision ordinances and amendments to answer questions and otherwise provide support to the municipality.
If an appeal is filed, provide legal representation of the municipality before administrative agencies and the courts. Or, provide assistance to the municipal attorney’s representation of the municipality, which may include the drafting of an initial assessment of the issues raised in the appeal, drafting of briefs, evaluation of the municipalities’ likelihood of prevailing on the merits, settlement options, etc.
3. Other ordinances. Draft any other ordinances requested by the municipality. Carol Morris has developed a number of form ordinances used by many cities for code enforcement, to adopt moratoria, regulations for medical and recreational marijuana, etc.
4. Interpretations. Morris Law will provide timely and complete interpretations of the zoning code in response to an application, consistent with the legal rules of statutory interpretation and other, applicable law. This includes interpretations that may arise during the course of permit processing, such as questions relating to vesting.
5. Training. Morris Law has been providing land use training services to city council and planning commission members, planning staff and members of the public for over 20 years. Training is available on all subjects covered in the model code, as well as other subjects, such as moratoria and marijuana regulation.
II. How We Work With Your Planners. Our firm does not provide planning services, so we work with each municipality’s planners (in-house or contract planners) to tackle the project by providing legal support. Here is a general outline of the steps you might consider to determine the scope of a model code project:
– Choose the criteria for evaluation of existing comprehensive plan and development regulations to determine the need for revisions;
– Under current plans and ordinances, planners may evaluate efficiency of land consumption; direction of growth; density; urban form; land use; jobs-housing balance; open space; housing; transportation and environmental factors; and Morris Law will evaluate code procedures and processing for ease of use and consistency with current law;
– Based on the evaluation, an audit may be conducted by both Morris Law and the planners to determine the scope of any necessary revisions to the comprehensive plan, zoning or subdivision ordinances;
– The planners may prepare background studies and surveys of the physical, social and economic aspects of a community;
– Morris Law may assist the planners in the development of programs and procedures for addressing community issues and citizen needs identified in the studies and surveys;
– The planners will prepare the specific planning studies and guide comprehensive land use and resource mapping programs;
– The planners will prepare the content of the comprehensive plan and any other development regulations unique to the individual municipality;
– Morris Law will prepare the legal framework, the final ordinance, ensure insertion of all procedural steps in the ordinance and assist with final adoption through participation in the public hearing or otherwise;
– In the alternative, is a municipality is only interested in updating those chapters of the code that are generally uniform in all municipalities, the decision may be made to repeal the existing codes and simply work with Morris Law to customize the model code for use in the municipality.
III. Cost. The cost will depend on the products and services provided to the local government. Many of the products described above are available for in-person viewing (not copying) prior to purchase. Call us for an estimate!
Questions and Answers
However, the Washington State Legislature has adopted state laws that address the processes that must be followed by each city, town and county in the development of property. Examples of chapters in the development code that must be closely patterned on state statute are those dealing with subdivisions and the processing of permits.
So, each city, town and county spends time and money individually drafting these chapters, even though they must be substantially the same in each jurisdiction. This means that planners and attorneys in all Washington cities, towns and counties are duplicating their time and effort performing the same task, which includes drafting updates to these codes when the law changes.
As a result, every city, town and county in Washington has a different subdivision code (as just example of just one of these chapters that must be the same throughout Washington), which varies in quality, clarity, age, ease of enforcement and validity. There are many reasons for this, which range from the experience/skill of the ordinance drafter, to the amendments made as a result of the political process, to the municipality’s failure to update the code when the law changes.
Because the development codes are different in each Washington city, town and county, those members of the development/legal community dealing with more than one local jurisdiction must learn the nuances of each code. And, when a Washington court renders a reported decision interpreting a code provision, it may only provide useful guidance to one jurisdiction.
There are other drawbacks. The process used by many local jurisdictions to amend the code when the law changes can also trigger legal challenges. Moratoria are often adopted in order to maintain the status quo while the local jurisdiction drafts the ordinance amendment, holds a public hearing on the ordinance, considers public input and then holds a public meeting to decide whether to adopt the ordinance. Many small jurisdictions have overburdened staff, and moratoria may be renewed over and over again. Developers may become frustrated because of the lack of any progress on the necessary code amendment (because they are precluded from submitting any development applications during this time) and may decide to file a lawsuit to force the local jurisdiction to terminate the moratorium.
Another problem with development codes in general is that they include only what is necessary for implementation and enforcement. There is no guidance for the city attorney, planner, property owner or developer as to overlapping legal issues, such as vesting of development rights. In order to fully understand the impact such issues may have on a particular development, the city attorney may need to be up to speed on the latest case law. If the city attorney is not an experienced land use attorney, he or she may need to spend significant time researching the law to answer a relatively simple question.
This model code could address the problems described above in the following manner:
- All municipalities could adopt the same code for those chapters that need to be uniform in all jurisdictions.
- Consistent with law. This proposal is for the development of an integrated model code that will be up-to-date with current federal and state law. The annotated version would identify the applicable law.
- Subscription service. Both the model code and the annotated version of the model code will be updated by a subscription service, which will timely provide the local jurisdiction with the amendments necessary to update the model code and ensure consistency with new statutes or case law. These updates to the model code will be provided in ordinance form. This will eliminate the delays associated with each city attorney’s review of new case law/statutes and drafting of amendments to conform to law. The updates will be prepared and sent out shortly after the law changes, so that municipalities will not be required to adopt moratoria in order to maintain the status quo while waiting for an update. (Each municipality would still have to send the ordinance through the planning commission public hearing and city council public meeting process.)
- Planners, developers and attorneys will be familiar with one code. If there was a model code adopted by many local jurisdictions, everyone (planners, city attorneys, hearing examiners, developers and members of the public) could familiarize themselves with one code. They would be able to hit the ground running when moving from one local jurisdiction to the next.
- The model code will include practice tips. The model code will be user friendly and provide a description of the overall process and explain complex issues. (These explanations will not be a part of the text.) The model code will be annotated with pertinent case law and practice tips to assist the staff and city attorney in understanding, implementing and enforcing the code.
- Court decisions will provide helpful precedent. A decision issued by the courts on a particular provision in the model code will be significantly more helpful to other municipalities with the same code provision. The other municipalities would be able to predict, with greater certainty, the manner in which the court would handle a challenge to the same provision in their own code.