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Code Enforcement Handbook For Municipalities

  1. Authority to Enforce the Code.

General.  The Washington Constitution provides that: “[a]ny city, county, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”[1]

 Zoning.  Cities and towns in Washington have long been required to adopt comprehensive plans which serve the public interest by anticipating and influencing the orderly and coordinated development of land and building uses.[2]  Zoning ordinances implement and give effect to the comprehensive plan by dividing the city into appropriate zones within which specific standards regulate the use, density, location, height, bulk, number of stories, size of buildings and structures, setbacks, parking, etc.[3]  These regulations ensure compatibility of uses and buildings within zones, predictability of impacts associated with the use and appropriate location of infrastructure and utilities, all of which is desirable to the public.  To be constitutionally valid, a zoning regulation must provide a legitimate public benefit without being unduly burdensome on the individual property owner, and the adoption process must meet due process standards.[4]

In 1990, the Growth Management Act was adopted to address the “uncoordinated growth” and “lack of common goals expressing the public’s interest in the conservation and wise use of our lands” which poses a “threat to the environment, sustainable economic development and the health, safety and high quality of life enjoyed by the residents of Washington.”[5]  Highly structured comprehensive land use planning was mandated for certain municipalities, with citizen participation and cooperation in the planning process identified as one major goal to guide the development and adoption of such plans.[6]

In 1995, certain municipalities were also required to adopt ordinances establishing an integrated and consolidated permit project process, to be included in their development regulations.[7]  Notice to the public of the receipt of project permit applications is integral to this process, which notice includes substantial detail on the application, decisions made on the application to date, environmental information, statements of preliminary determinations on the application, as well as the date, time, place and type of hearing on the application.[8]  All of these procedures are calculated to provide notice to the public of the pending development application at the earliest possible stage.  Usually, the municipality also allows at least one administrative appeal of the project permit application, which provides additional public input in the decision-making process.

Drafting enforceable development regulations and permit conditions is beyond the scope of this article.  There are a number of tests that the courts apply to determine whether a code provision is valid and enforceable.  For example, (a) there must be a public problem or evil that the regulation will address; (b) the regulation must tend to solve the problem; and (c) the regulation must not be unduly oppressive upon the person regulated.[9]  The tests may differ depending on whether the penalties to be imposed are criminal or civil.[10]  […]

2018-03-09T17:01:16+00:00 September 13th, 2016|Uncategorized|

Development Agreements to Mitigate the Impacts of Development (RCW 82.02.020) and “Discretionary” Development Agreements

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale Street N.W., Suite 200
Gig Harbor, WA 98380
253-851-5090

1 Speech delivered before the Washington State Association of Municipal Attorneys (2015).

A. What is a “Development Agreement?” A development agreement is a contract entered into between a property owner and a municipality to address the issues that may arise during the lengthy and expensive project planning and construction process. It may address any number of development issues, including, but not limited to, conditions of annexation, extension of vested rights, the responsibility of each party for infrastructure installation, timing of such installation for phased developments, dedications, payment of fees to the municipality and code enforcement. 1

B. What is a “Development Agreement to Mitigate the Impacts of Development (RCW 82.02.020)?” Not all development agreements are the same. Consider the situation in which a developer submits an application for a preliminary plat to the city, and the city determines from a traffic study that off-site road improvements are reasonably necessary as a direct result of the preliminary plat. 2 If the city were to impose a fee, tax or charge on the development, even if that were used for payment of off-site road improvements, it triggers RCW 82.02.020 (which generally prohibits such fees, taxes or charges). However, RCW 82.02.020 creates an exception for “voluntary agreements” that allow payment in lieu of dedication of land or to mitigate a direct impact that has been identified as a direct result of a proposed development, subdivision or plat.

Although RCW 82.02.020 uses the term “voluntary agreement,” developers have argued that where the local government’s approval of the proposed permit application is conditioned upon the agreement’s execution, such agreements are not voluntary.3 The Washington courts have disagreed, finding that:

within the context ofRCW 82.02.020, the word ‘voluntary’ means precisely that the developer has the choice of either (1) paying for those reasonably necessary costs which are directly attributable to the developer’s project or (2) losing preliminary plat approval. The fact that the developer’s choices may not be between perfect options does not render the agreement ‘involuntary’ under the statute. . .. Moreover, [the developer] does not claim that he has absolute right to receive plat approval, he clearly does not. The county is authorized to withhold plat approval if appropriate provisions have not been made for the public health, safety and general welfare.4

Usually, approval of the project permit decision will include the condition to mitigate the impacts from the direct result of the development. However, there are any number of reasons that a city and developer may enter into a separate development agreement addressing the mitigation. For example, a developer may be required to install a right hand turn lane to address the traffic impacts of the development. The city may be planning a transportation improvement project in the next five years5 to include a right hand turn lane in that location. The parties may enter into a development agreement that requires the developer to pay the cost of this right hand turn lane to the city, and the city will construct the improvement.

There are other reasons to incorporate mitigation conditions in a development agreement. Take the […]

2017-01-12T22:43:40+00:00 June 28th, 2016|Model Development Code|

Should Your City Change to a Hearing Examiner System?

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA  98335
(253) 851-5090

In many cities, quasi-judicial land use project permit applications (conditional use permits, variances, preliminary plats, site specific rezones, etc.) are first given an open record hearing before the planning commission or board of adjustment.  A final decision is made by the commission/board, and any appeals are handled by the city council in a closed record hearing.[1]  Or, if the board makes a recommendation instead of a final decision, the city council considers it in the closed record hearing and makes the final decision.

However, many cities have opted for a hearing examiner system, which allows a hearing examiner (usually an attorney) to hold the open record hearing on the quasi-judicial land use application.[2]  The hearing examiner’s decision may take the form of either a recommendation to the city council or a final decision.  If the examiner has made a recommendation, the city council will hold a closed record hearing and then render the final decision.  Or, if the examiner has made the final decision, there may be a procedure allowing for reconsideration of the examiner’s decision and/or a closed record appeal hearing before the city council.

There are many reasons to consider switching from a citizen board (like the planning commission or board of adjustment) to a hearing examiner system for quasi-judicial project permit applications:

 

1.         Most planning commissions/boards of adjustment operate without legal guidance and have trouble understanding complicated land use laws.   The city’s processing of permit applications involves consideration and integration of many different laws, including but not limited to the Growth Management Act (ch. 36.70A RCW), the Regulatory Reform Act (ch. 36.70B RCW), the State Environmental Policy Act (SEPA) (ch. 43.21C RCW), critical areas regulations, the Shoreline Management Act (ch. 90.48 RCW), the Subdivision Act (ch. 58.17 RCW), as well as federal/state constitutional provisions.  Not all of these are reflected in the city’s codes.  For example, the city’s code may address the issue whether or not a particular application is subject to the vested rights doctrine, but most codes do not describe how the doctrine works.  Codes do not describe how to fashion individual conditions on permits to address environmental impacts within constitutional constraints.  Therefore, the decision-makers must have a comprehensive understanding of these laws in order to make correct decisions.

To make things even more complicated, these laws are constantly changing.  Many cities are able to rely upon their city attorneys to guide the process, but in too many financially strapped cities, the planning commission, board of adjustment and city council

must make decisions on land use applications with minimal legal advice.   An attorney hearing examiner should be aware of the latest court decisions affecting land use/zoning, and should be able to draft a decision that will be upheld on appeal.

2.         The courts will not apply a lesser standard of review to the land use decision, merely because it is written by a citizen board.   […]

2017-01-12T22:43:40+00:00 August 26th, 2013|Land Use Law, Zoning Laws|

Concurrency and Moratoria

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA  98335
(253) 851-5090

I.          CONCURRENCY

A.        In General.  Concurrency ordinances are land use regulations designed to ensure that the necessary public facilities and services to support new development are adequate and available, based on adopted levels of service, at the time that the impacts of the development occur.  The State Subdivision Act (chapter 58.17 RCW) has long required that the county or city adopt findings that “adequate provision” has been made for potable water, sanitary sewer, roads, streets and schools in order to approve a preliminary plat,[1] but the term “concurrency” is more frequently associated with ordinances adopted pursuant to the Growth Management Act (chapter 36.70A RCW, “GMA”).

Most are familiar with the situation where a municipality may deny preliminary plat approval based upon the lack of the necessary public facility improvements, but the developer is free to provide those improvements at his/her own expense.  If the developer can’t construct the improvements before the final plat is filed, the developer’s obligation is secured by a performance bond.[2]  Costs of the improvements that exceed the developer’s pro rata share can often be reimbursed to the developer through a latecomers’ agreement.[3]  However, in some situations, the project may be denied because the municipality must construct the public facility improvements, such as major roadway projects, water and sewer facilities.

While the GMA provides that comprehensive plans and development regulations should ensure that the public facilities and services necessary to support development are adequate to serve the development at the time of occupancy, without decreasing service levels below locally established minimum standards,[4] concurrency is only required with regard to transportation facilities.[5]  To implement the concurrency mandate, GMA first requires that a municipality’s comprehensive plan include a transportation element that implements and is consistent with the land use element of the plan.[6]  Level of service (LOS) standards must be included in the plan’s transportation element for all arterials and transit routes.[7]

In addition, local governments are required to adopt and enforce ordinances prohibiting development approval if the proposed development causes the LOS on a local transportation facility to drop below the LOS standard adopted in the jurisdiction’s comprehensive plan.[8]  Even so, a proposed project forecasted to cause such a drop in the LOS may be approved, as long as transportation improvements or strategies to accommodate the impacts of development are made concurrent with the development.[9]  For purposes of this requirement, these improvements and strategies (or a financial commitment to complete the improvements or strategies) must be in place within six years of the time of development.[10]  A “financial commitment” means that “sources of public or private funds, or combinations thereof have been identified, which will be sufficient to finance public facilities necessary to support development and that there is reasonable assurance that such funds will be timely put to that end.”[11]

B.      

2017-01-12T22:43:41+00:00 July 26th, 2013|Land Use Law|

Subdivisions – Recent Developments in Concurrency, Expiration of Approval, Completion and Maintenance of Public Improvements

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA  98335
(253) 851-5090

I.          Background. 

            Those cities and towns planning under the Growth Management Act[1] (“GMA”) must have transportation concurrency ordinances which allow the municipality to deny the development (under certain circumstances), based on the traffic generated by the development.[2]  GMA encourages municipalities to adopt concurrency ordinances for other public facilities and services, such as water and sewer.[3]  Both GMA and non-GMA cities also must perform basic concurrency analyses prior to making a final decision on any short or preliminary plat.[4]

“Concurrency” means that adequate public facilities or services are available when the impacts of development occur.[5]  “Available public facilities” means that the facilities or services are in place (or that a financial commitment is in place) to provide the facilities or services within a specified time.[6]  The deadline for availability of transportation facilities for GMA cities is six years from the time of development.[7]  Because there is no requirement under GMA that a municipality adopt concurrency requirements for water or sewer, there is no corresponding deadline in GMA.  However, the need for concurrency ordinances with deadlines addressing water and sewer in all cities and towns, not just cities and towns planning under GMA, is underscored by recent legislation which addresses expiration of final plats and case law.

Subdivision Act.  Cities and towns process subdivision applications under the Subdivision Act and local implementing ordinances.[8]  In many instances, the city or town also is the water purveyor or sewer provider to the property, and will be asked by the developer at the short plat or preliminary plat stage to provide water and sewer to the property and a recommendation for approval on this basis.[9] Once the municipality (usually the public works director) makes a recommendation for approval based on an evaluation of the water and/or sewer that is available to serve the lots in the plat, this recommendation cannot be modified without the consent of the applicant.[10]

The municipality may not approve the short plat or preliminary plat unless it “inquires into the public use and interest,” and “makes written findings” that the short plat or preliminary plat makes “appropriate provision” for “potable water supplies” and “sanitary wastes.”[11] This determination cannot be just a snapshot in time of the availability of water and/or sewer in the municipality on the date of approval.  It must also evaluate whether there is enough water and sewer capacity to serve all of the lots in the preliminary plat until the property owner’s right to build out the plat in accordance with applicable laws in effect at the time of approval expires.[12]  In effect, this is a “concurrency determination,” but in many cities and towns, no one takes the necessary action to reserve the associated water rights or sewer capacity for the lots in an approved plat for the entire vested “life” […]

2017-01-12T22:43:41+00:00 June 26th, 2013|Land Use Law|

Moratoria Handbook for Municipalities

Association of Washington Cities
Risk Management Services Agency

DOWNLOAD THE FULL ARTICLE PDF

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA  98335
(253) 851-5090

INTRODUCTION

The focus of this Handbook is to provide guidance on moratoria.  Information has been included on the purpose of moratoria, the difference between the various types of moratoria and how to adopt a moratorium.  Explanations have been provided of the purpose and importance of each step in the process, with tips on how to complete them.  Form ordinances are attached to guide moratoria adoption.

We hope you will find the format and content of this Handbook helpful in your work, whether you are a municipal attorney, a member of the legislative body for a municipality, planner or city clerk.  Feel free to contact the author, Carol Morris, at carol_a_morris@msn.com to ask questions or provide comments on this Handbook.

The Association of Washington Cities Risk Management Service Agency funded this Handbook.  Member cities may call Carol Morris on the toll-free Land Use Hotline at 1-877-284-9870.  The Land Use Hotline may be used for questions on moratoria, pre-litigation issues or other land use matters.

 

I.  DEFINITIONS:  What is a Moratorium?

 

A moratorium is an emergency measure adopted without notice to the public or public hearings, designed to preserve the status quo.  A moratorium suspends the right of property owners to submit development applications and obtain development approvals while the local legislative body considers, drafts and adopts land use comprehensive plans and/or development regulations (or amendments thereto), to respond to new or changing circumstances not addressed in current laws.

 

A “permit moratorium” is usually adopted pending adoption of  amendments to a comprehensive plan or development regulations.  Permit moratoria have the following purposes:

 

—  to prevent a potential rush for permits whenever a community decides to review and update its comprehensive plan or development regulations (there is a possibility that the new regulations could reduce the development level);

 

—  to bar the submission of applications during the moratorium period and thereby prevent an applicant’s ability to vest rights under the existing development regulations, so that development inconsistent with the new regulations is not approved.

 

A “public facility moratorium” or “utility moratorium” may be adopted on an emergency basis without notice to the public or public hearings, when a community faces a utility-related shortage (such as sewer and water).

 

What is Interim Zoning?  An ordinance that may be adopted on an emergency basis without notice to the public or public hearings, to adopt interim zoning regulations or change the land use designation or zoning classification of property, limiting the property to uses that will be compatible with a zoning proposal under consideration by the municipality.  In a case decided prior to the adoption of the Growth Management Act, the Washington courts defined “interim zoning: as follows:

 

Interim zoning describes a process whereby a governmental body in response to an emergency situation temporarily establishes an ordinance to classify or regulate uses of land pending either revision of the existing zoning code or adoption of a final, comprehensive zoning plan.

2017-01-12T22:43:41+00:00 April 25th, 2013|Land Use Law|

Settling Land Use Litigation: Swords into Ploughshares

DOWNLOAD THE FULLARTICLE PDF

by
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA  98335
(253) 851-5090

I.          Why are land use disputes more difficult to settle? 

Most land use litigation involves a property owner’s appeal of a municipality’s denial of a land use permit or imposition of conditions on a land use permit, based on the municipality’s interpretation of its code.  To arrive at the final decision, the municipality has spent much time and effort analyzing the permit application materials, discussing the alternatives with the applicant, holding one or more public hearings, considering the evidence, voting on the application and drafting the necessary findings and conclusions to support the decision.  Therefore, by the time an appeal has been filed of the municipality’s decision, the property owner’s objections usually have been addressed in the record at length by the opponents of the project, the staff and the final decisionmakers.  Compromise solutions have likely been considered by the municipality and rejected.

The appeal is filed by the property owner, typically with a damage claim.  Some property owners become so angry at the conclusion of the administrative process that they decide to appeal and add damage claims against the municipality, the individual decision makers, their spouses/marital communities.[1]

While the parties involved in any litigation may become entrenched in their positions, land use litigation is markedly different.  The legislative body of the municipality cannot simply decide to “cut losses” and settle by giving the property owner money, or even the permit he/she is demanding.  Just as the original permit application was required to be processed according to the municipality’s code, any settlement of the dispute involving a revision of the permit must also be processed according to the code.  The municipality can’t circumvent its zoning procedures in settlement of litigation – resolution of any land use dispute necessarily involves consideration of the public interest and protection of the rights of the public, regardless of whether any member of the public is a named party in the litigation.

 

II.  What advantages are there to settling land use litigation?

Allowing the courts to decide land use issues removes the final decision-making authority from public officers.  A court may decide to interpret a municipality’s code in a way never intended by the municipality.[2]  And, once the litigation is before a court, the municipality can’t assume that a court will remand the matter to allow the municipality another bite of the apple.  Even though a court has the ability to remand an appealed land use decision for further action,[3] nothing requires the court to do so.[4]

Another reason to settle land use disputes is obvious to anyone who reads a newspaper – litigation is unpredictable.  Consider also the attorneys’ fees, potential for a damage award, delays to the developer, and diversion of staff time from municipal planning and permitting activities to litigation.  Settlement at the earliest possible stage is the best way to avoid these consequences.

 

III.  What’s different about settling land use disputes?

Land use […]

2017-01-12T22:43:41+00:00 March 25th, 2013|Land Use Law|