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

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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 situation in which an owner of property in a preliminary plat application proposes a large subdivision and planned unit development (PUD). The development agreement includes certain improvements to roads/public amenities that currently serve other members of the public. Four years after preliminary plat and preliminary PUD approval, the developer begins work, but is only partially finished before the developer runs out of funds and abandons the project. There was no requirement that the developer post a bond for these improvements at this stage. The bank takes over the property,
markets it, but refuses to hire a contractor to finish the public improvements. At this point, two months remain before the preliminary plat and preliminary PUD approval expire, along with the condition requiring improvements to the roads/public amenities. The city’s enforcement options to force construction of the public improvements are limited.

Assume that the facts are the same in the above situation, except for a development agreement that has been executed between the city and the property owner, which was recorded against the property. The development agreement requires construction of the amenities and describes the city’s remedies for non-performance, which include specific enforcement of the agreement, use of the city’s code enforcement procedures which impose civil penalties – all enforceable against the property owner and his/her successors in any beneficial interest in the property. The duration of the development agreement is much longer than the expiration of the underlying preliminary plat approval,

C. What is a “discretionary” development agreement? Local governments are not required to enter into development agreements with property owners. The development agreement statutes provide that:

A local government may enter into a development agreement with a person having ownership or control of real property within its jurisdiction. A city may enter into a development agreement for real property outside its boundaries as part of a proposed annexation or a service agreement. 6

A property owner may ask the city to enter into a development agreement for the sole purpose of extending the vested rights associated with an approved project permit. This is a request for a benefit (extended vested rights). Because there is no requirement that the city agree to extend the developer’s vested rights, the city may decide not to enter into the development agreement, and RCW 82.02.020 does not apply. When considering whether to grant extended vested rights, cities need to consider the impact on the public. Take the example where the city signs a development agreement in 2010 to allow a developer to vest an approved preliminary plat under the city’s storm water regulations for twenty years. The approval requires that the developer construct the storm water facility, and then turn it over to the city for ownership and maintenance responsibilities. In 2030, the city may end up with an undersized storm water facility,  with the associated liability for flooding.7 As stated by the Washington Supreme Court:

Development interests and due process rights protected by the vested rights doctrine come at a cost to the public interest. The practical effect of recognizing a vested right is to sanction the creation of a new nonconforming use. A proposed development which does not conform to newly adopted laws is, by definition, inimical to the public interest embodied in those laws. If a vested rights is too easily granted, the public interest is subverted. 8

After careful consideration of the consequences of a discretionary development agreement, if the city decides to proceed, the city should require consideration from the developer. A contract must be supported by consideration in order to be enforceable.9

D. What type of consideration is required for a Development Agreement? Whether a contract is supported by consideration is a question of law. IO As stated by the Washington Supreme Court:

Legal sufficiency is concerned not with comparative value but that which will support a promise. . . . Anything which fulfills the requirements of consideration will support a promise whatever may be the comparative value of the consideration and of the thing promised. I I

Many cities believe that the only consideration required for a development agreement is the sales tax revenue that will be received from a project. Some cities grant lengthy extensions of preliminary plat approval (and associated vested rights) without any consideration at all, to accommodate developers.

While courts do not inquire into the adequacy of consideration (but employ a legal sufficiency test), cities still need to be careful to avoid challenges based on art. VIII, sec. 5 and 7 of the Washington Constitution (unconstitutional gift of public funds or lending of credit). Cities must also be mindful of the precedent-setting nature of a decision to provide a benefit to a developer for no consideration, because the next developer will ask for the same deal.

E. Do all Development Agreements and Amendments to Development Agreements follow the same procedure for execution? The conservative answer is yes. This is because both RCW 82.02.020 and discretionary development agreements may include many of the same “development standards” listed in RCW 36. 70B.170(3). I2 For example, a development agreement may include “the amount and payment of impact fees imposed or agreed to in accordance with any applicable provision of state law … ” RCW 36. 70B.170(3)(b ). In addition, RCW 36. 70B.170(3)( c) contemplates that a development agreement would cover “mitigation measures, development conditions, and other requirements under chapter 43.21C RCW [SEPA].”

Therefore, every development agreement, whether subject to RCW 82.02.020, SEPA, the annexation statutes, or any other state law, should follow the procedures in SEPA (development agreements are not categorically exempt), and RCW 36.70B.170 through 36.70B.210. These statutes require that the municipality considering a development agreement must provide public notice of a public hearing, hold a public hearing on the agreement, and adopt the agreement by resolution or ordinance. 13 The agreement is then recorded against the property. 14 Additional steps are required, depending on whether the development agreement is associated with legislative or administrative/quasi-judicial action.

With regard to amendments to the development agreement, consider that RCW 36. 70B.200 requires that:

A county or city shall only approve a development agreement by ordinance or resolution after a public hearing. The county or city legislative body or a planning commission, hearing examiner, or other body designated by the legislative body may conduct the hearing.

A development agreement is a contract, and must be signed by the city council. If the city council authorized the original development agreement after a public hearing (regardless of whether the city council or hearing examiner held the hearing) with a resolution or ordinance, then any amendment must also be accompanied by a resolution or ordinance that repeals/amends the resolution or ordinance that was used to pass/adopt the original development agreement. A hearing examiner can’t pass a resolution or ordinance to repeal a previous resolution or ordinance and a hearing examiner can’t execute a contract on behalf of the city council. Therefore, only the city council can amend an approved development agreement. The Open Public Meetings Act (chapter 42.30 RCW) prevents the city council from taking action on the development agreement except in a public meeting. Rather than risk a challenge that the proper procedure was not followed for the modification of the development agreement, a public hearing should be held prior to execution of the modified development agreement, and passage of the new resolution/ordinance.

Some may argue that many cities could use a procedure to administratively amend development agreements, similar to the process used for the amendment of approved preliminary plats (defining major and minor amendments, allowing an administrative approval for the latter). However, there is nothing in the Subdivision Act (chapter 58.17 RCW) which requires that a city adopt the preliminary plat approval by ordinance or resolution. To ensure that the modification to the development agreement is valid and enforceable, the same procedures in RCW 36.70.170 through 36. 70B.200 should be followed for any modification.

F. Can a city enter into a development agreement if it is not consistent with the city’s development regulations or the comprehensive plan? In some instances, a city may be willing to follow the procedures for the adoption of the development agreement, but the parties seek to avoid the following requirement in RCW 36.70B.l70(1): “A development agreement shall be consistent with applicable development regulations adopted by a local government planning under chapter 36.70A RCW.” Some cities planning under GMA have actually adopted codes that specifically allow “deviation” from adopted development standards.

Other cities have entered into development agreements without considering whether the development standards in the agreement are consistent with the city’s comprehensive plan. As stated in RCW 36.70A.120: “Each county and city that is required or chooses to plan under RCW 36.70A.040 [the Growth Management Act] shall perform its activities and make capital budget decisions in conformity with its comprehensive plan.” This does not allow a city to enter into a development agreement for a massive increase in density, if inconsistent with the county-wide planning policies in the city’s comprehensive plan.

Take this example of a development agreement provision that is incorporated in one city’s code. We all know that in most cities and counties, use variances are prohibited. The city adopted a code provision allowing property owners to deviate from the uses allowed in a particular zone with a development agreement — as long as there is a vote of a supermajority of the council. There are no objective standards for the council to consider, and very likely, there will be no findings and conclusions to support execution of such an agreement. This code provision would allow variances of any type to follow this process, avoiding the chapter on variances in the code.

When there are no objective standards to guide the use of discretion, the code (and development agreement) could be challenged (void for vagueness). 15 Even if this development agreement is not appealed, a problem could arise when the next developer proposes to deviate from the uses allowed in a zone with a development agreement. With this subsequent request for a “use variance” development agreement, there may only be a majority, rather than a supermajority of the council to support the deviation. If the decision is appealed, can the city defend a refusal to enter into a development agreement for what is basically a city-created use variance, when there are no variance criteria, but similar variances have been granted by a supermajority in the past?

If development agreements can be used to vary from all of the city’s development standards, do we need a zoning code? Clearly, if a developer can deviate from a city’s development regulations through a “beauty contest” involving a supermajority vote of the council, no one would be motivated to demonstrate satisfaction with the much more difficult variance criteria in the code. While there are no Washington cases on this issue, the city attorney should question whether this type of a development agreement meets the Washington courts’ test for invalid concomitant agreements (where the city is “using the concomitant agreement for bargaining and sale to the highest bidder or solely for the benefit of private speculators”16).

Here are some other examples of development agreements to consider:

1.     A pre-annexation agreement between the city and an owner of property in a city’s urban growth area, in which the city agrees to rezone the property to a particular zone after annexation. There is no term (duration) in the agreement. The city rezones the property consistent with the agreement. Five years later, the city uses the rezone process to rezone it to another zoning classification that is inconsistent with the agreement. The developer sues, claiming that the city could only rezone the property if both parties agreed to amend the pre-annexation agreement.

2.     An agreement between the city and a property owner, which provides a “freezing” of the city’s development regulations for a specific period of time, subject to additional extensions of time, because the property owner has constructed a storm water drainage facility to accommodate the stormwater on its property on the date the agreement was executed. No development application was ever submitted for any development and the agreement did not include a deadline for the submission of any application.

3.     A development agreement is executed between Bob Smith and the city, which establishes the development regulations that will govern the development of specific property, and the agreement is recorded against this property. The agreement provides that if Bob Smith purchases any other property during the term of the agreement, then the development agreement will automatically extend and govern development of this new property.

4.     An agreement between a developer and a city which establishes the sewer connection (or GFC) as well as sewer service fees that must be paid for property in the Happy Days subdivision, for twenty years. In other words, while the city council has established the sewer connection fee (or GFC) and sewer service fees for all other owners of property by ordinance, which is amended from time to time, these fees are “set” in the development agreement for the Happy Days subdivision for the duration of the agreement.

5.     A purchase and sale agreement involving the city’s sale of property to a private individual, which included the condition that after closing, the city would perform SEP A and rezone the property to a particular zone.

6.     An agreement between a property owner and a city that has no development regulations allowing for conditional use permits, but the agreement approves a conditional use permit for a particular use and development, “in perpetuity.”

7.     Developer Tim Morgan asks the city to enter into a pre-annexation agreement in which the parties agree that the property will be annexed to the city. The agreement also establishes the zoning that the city will impose on the property. No hearing has been held on any annexation petition or pre-annexation zoning.

G. Are Development Agreements the same as Concomitant Agreements? At least as early as 1967, concomitant agreements were in use in Washington, usually associated with rezone actions. 17 These concomitant agreements were not statutorily authorized (although some municipalities adopted concomitant agreement procedures in the code), and the process for concomitant agreements varied from jurisdiction to jurisdiction.

The Washington courts upheld concomitant agreements associated with rezoning, unless:

it can be shown that there was no valid reason for a change and that they are clearly arbitrary and unreasonable, and have no substantial relation to the public health, safety, morals and general welfare, or if the city is using the concomitant agreement for bargaining and sale to the highest bidder or solely for the benefit of private speculators. 18

Through the adoption of RCW 36. 70B.170(2), the Legislature acknowledged the validity of a contract rezone, concomitant agreement, annexation agreement or other agreement in existence on July 23, 1995, or adopted under separate authority, that includes some or all of the development standards in RCW 36.70B.170(3).19 This language doesn’t resolve the question whether all such agreements executed after that date are required to follow the procedures in RCW 36. 70B.170 through .21 0. However, given that the list of “development standards” in RCW 36. 70B.170(3) are the same type of standards included in concomitant agreements, the conservative approach would be to uniformly follow the procedures for development agreements in state law. There is no reason to risk a subsequent challenge to the validity of a concomitant agreement based on the city’s argument that that its local ordinance procedure for concomitant agreements supersedes the development agreement statutes.

H. Are Development Agreements Legislative or Quasi-Judicial? A sample of the purposes and development standards that may be included in development agreements are identified in RCW 36. 70B.170. Agreements incorporating these development standards can arise in legislative or quasi-judicial contexts.

It is important to separate legislative development agreements (associated with legislative actions) from those executed in conjunction with quasi-judicial project permit applications. This will ensure that the proper appeal route will be followed, the reviewing court/administrative agency will utilize the proper standard of review, and the city’s liability will be limited to the extent allowed by law.

For example, if a property owner seeks a comprehensive plan amendment of the land use designation of his/her property, this involves the use of legislative discretion. If a development agreement has been proposed for the purpose of allowing the city council to find that there is sufficient infrastructure to support a more intense land use designation in the comprehensive plan (for a subsequent rezone), the agreement may include the property owner’s proposal to build transportation facilities that are not otherwise addressed in the comprehensive plan. This is a discretionary development agreement and is legislative, just like the associated comprehensive plan amendment. An appeal of this comprehensive plan amendment and development agreement would be filed with the Growth Management Hearings Board (if this occurred in a city/county planning under GMA).20 The city would not have any liability for denying either the comprehensive plan amendment or the development agreement.

An example of a quasi-judicial development agreement would be a developer’s request for a rezone consistent with the most intense zone in a range of zoning classifications allowed under the comprehensive plan. The staff recommendation for approval of the rezone may include a development agreement that requires the property owner to install a 25 foot wide vegetative buffer between the property and the neighboring uses. Because the underlying application is quasi-judicial (a site-specific rezone), the development · agreement would also be quasi-judicial and appealed in the same manner as the rezone (chapter 36.70C RCW or LUPA).21 In this situation, the property owner could file an appeal with a damage claim under chapter 64.40 RCW and/or 42 U.S.C. Section 1983.

I. What are the problems associated with execution of development agreements that are inconsistent with the applicable development regulations? The city limits public participation when it executes development agreements that are not consistent with existing development regulations. In addition, the city unnecessarily exposes itself to liability for damages associated with project permit applications/development agreements (under chapter 64.40 RCW and 42 U.S.C. Section 1983).

The Growth Management Act establishes a process for the adoption of development regulations, which provides notice to the public at many stages. Many of these steps are omitted if new development regulations (inconsistent with existing development regulations) are adopted in a development agreement. Here is a summary of the process:

-The ordinance establishing the development regulations is drafted;
-The city SEP A Responsible Official performs SEP A on the draft ordinance;
-The city sends the draft ordinance to the Washington State Department of Commerce (RCW 36.70A.106(1)), notifying it of the city’s intent to adopt the ordinance, at least 60 days prior to final adoption;
-The city planning commission provides public notice (which is usually broader than the public notice provided for project permit applications) and holds a public hearing on the draft ordinance. The planning commission prepares a recommendation to the city council on the draft ordinance;
-The city council considers the draft ordinance, the planning commission’s recommendation (and perhaps a SEP A appeal) in a regular meeting;
– If the city council decides to make changes to the draft ordinance, it follows RCW 36.70A.035(2)(a), which, depending on the change(s), may require additional public notice and another public hearing on the ordinance;
-The city council may also decide to hold more public hearings even if no changes are made to the planning commission’s recommendation;
-The city council adopts the ordinance with the new development regulations;
-The city sends a copy of the adopted ordinance to the Department of Commerce (RCW 36.70A.106(3));
-The city publishes the adopted ordinance in the city’s official newspaper;
-The adopted ordinance may be appealed to the Growth Management Hearings Board (RCW 36.70A.280);
-If appealed, there is a hearing and the GMHB issues a decision; and A judicial appeal of the decision may be filed.

Contrast the above procedure with the procedure for the adoption of development regulations in a development agreement with an underlying permit application (like a master use permit or PUD):

-The development agreement with the development regulations is reviewed by the City staff;
-The City SEP A Responsible Official performs SEP A on the draft ordinance;
-Public notice is provided for a project permit application and a public hearing is held on the development agreement and underlying project permit application, before the hearing examiner/city council;
-The city council considers the development agreement (and any SEPA appeal) and adopts the agreement by resolution/ordinance;
-A judicial appeal may be filed. The courts consider such development agreements to be quasi-judicial, so the appeal is handled by the court under chapter 36.70C RCW or LUPA.

As you can see from the above, the adoption of development regulations in a development agreement associated with a project permit application significantly limits public participation. Because the city doesn’t consider the development agreement to actually amend existing development regulations or adopt new ones, the city doesn’t consider RCW 36. 70A.l30(1 )(d), which provides that: “any amendment of or revision to development regulations shall be consistent with and implement the comprehensive plan.” If the city adopts new development regulations that are inconsistent with existing development regulations, there is likely no review to determine consistency with the comprehensive plan as required by RCW 36.70A.l20.

Because the first procedure described above (adoption of development regulations according to GMA and other applicable law) is legislative, the courts give deference to the city’s decision and the city is usually immune from liability for legislative actions. (Or, invalidity under RCW 82.02.020 will prevent the courts from analyzing any constitutional challenge.22) However, the second procedure is quasi-judicial, subject to the judicial standards of review in LUPA (the Land Use Petition Act, specifically RCW 36.70C.130), and could subject the city to a damage claim under chapter 64.40 RCW or 42 U.S.C. Section 1983. So, if the city followed the process for adoption of development regulations as required by law, it would increase public participation, reduce the possibility that the city would be involved in a lengthy, expensive appeal, and substantially reduce or eliminate the city’s liability.23

J. Should we use the same template for all Development Agreements? No. The standard contract provisions may vary, depending on whether the development agreement is subject to RCW 82.02.020 or is discretionary. For example, should the city add certain clauses that prevent the developer from later suing the city for damages under chapter 64.40 RCW or 42 U.S.C. Section 1983, based on a discretionary development agreement?24

K. Do other jurisdictions have laws to regulate Development Agreements? Many states have adopted enabling legislation authorizing development agreements to ensure that the municipality’s police power is not “bargained away” and the legislative authority is not surrendered in conjunction with land use approvals. California’s Development Agreement statutes indude a number of provisions that would tremendously improve the development agreement procedures in Washington. In California, there are state-wide uniform public noticing requirements of the public hearing relating to the development agreement.25 Adequate public notice is important, especially in those jurisdictions interpreting RCW 36. 70B.170 to allow use of development agreements to waive code requirements or allow development that is inconsistent with GMA-adopted code provisions.

California also prohibits development agreements in certain zones, such as flood control zones.26 (Should Washington prohibit development agreements that allow developers to vest under current storm water regulations for a period of years beyond the normal expiration of the permit?) California imposes durational limits on development agreements associated with newly annexed areas27 — apparently as a result of court decisions in which counties entered into development agreements with developers agreeing not to impose impact fees, which prevented the cities that subsequently annexed the property from raising necessary funds.

In addition, California requires that the municipality periodically review the development agreement. The property owner/developer must demonstrate good faith compliance with the terms of the agreement or the municipality may terminate or modify the agreement.28

L. Do we need a Development Agreement for a phased subdivision or can the phasing schedule be included in the preliminary plat approval? There are a number of good reasons to have a development agreement in place for phased subdivisions. First, a development agreement is needed to extend the vested rights of any preliminary plat beyond the deadlines for expiration in RCW 58.17.140. The hearing examiner doesn’t have the authority to extend the deadline in the preliminary plat decision.29 .

The city council can’t issue final plat for only a portion of a development described in a preliminary plat approval. Under RCW 58.17 .170(1 ), the city council can only issue final plat approval if the “subdivision proposed for final plat approval conforms to all terms of the preliminary plat approval, and that said subdivision meets the requirements of this chapter, other applicable laws, … ” (Emphasis added.) So, unless the hearing examiner has included a phasing schedule in the preliminary plat approval, a development agreement is needed for issuance of final plat for each phase.

Third, the development agreement is recorded against the property, and may be enforced by the city against any subsequent purchasers (if correctly written) of the property in the preliminary plat. Consider the situation we witnessed during the recession – many developers went belly-up, and were not able to complete their projects. The preliminary plat runs with the property in the sense that a subsequent purchaser has the ability to construct the plat as approved. However, a problem arises when the preliminary plat is partially constructed and the bank now owns the property. A developer may not have posted bonds at this point to ensure construction of the plat improvements. The bank has no interest in completing the roads or other improvements. If there is a development agreement binding the owner to complete the improvements by a date certain, the city can ensure that the improvements are constructed as needed.

Many cities require that the developer submit a bond to ensure completion of the improvements in order for final plat approval to issue. This procedure may not always produce the desired result. Many cities allow the use of a bond form submitted by the developer, which isn’t anything more than a promise- unenforceable when the developer is gone and the bank owns the property. Some cities use a bond form that allows the bond to expire before the improvements have been constructed, inspected and accepted by the city for ownership and maintenance.

M. Recommendations.30

  1. Don’t enter into a development agreement with terms that are inconsistent with the city’s development regulations or comprehensive plan.
  2. Adopt a chapter in the code addressing development agreements.
    This chapter should not only reflect the procedure in state law (RCW 36.70B.l70 through .210), but also state that development agreements cannot be inconsistent with the city’s development regulations or comprehensive plan.
  3. Update the city’s development regulations so that they are consistent with the city’s comprehensive plan. If the city’s development regulations are up to date, there is no reason for a developer to propose a development agreement, complaining that it is needed because the city’s regulations are so “outdated.”
  4. Don’t use a development agreement to duplicate a clear state law process, just to provide the developer with predictability because the agreement confuses the procedures for appeal. For example, state law describes the process for annexation in code cities (chapter 35A.14 RCW) and the process for adoption of preannexation zoning (RCW 35A.14.330). The city makes decisions relating to these procedures after public hearings. Any development agreement entered into by the city and a property owner needs to be clear that the city has not agreed to the annexation or the pre-annexation zoning by merely executing the agreement. There is no need to enter into such agreements simply to “nail down the process.” By adding an unnecessary development agreement to the mix, the city also exposes itself to unnecessary liability in an appeal of the agreement. The public’s ability to appeal the process is also made unnecessarily complicated.
  5. Subdivision laws control how land can be divided, while zoning laws address how the land can be developed. The fact that the subdivision code doesn’t include any regulations relating to the development of the property doesn’t mean that the city can adopt a development agreement with includes development regulations that are inconsistent with the zoning code. Remember that in order for a preliminary or short plat to be approved, there must be a finding that the proposed short plat or preliminary plat is in conformity with any applicable zoning ordinance or land use controls.32 Also, don’t adopt a development agreement in order to deviate from the procedures in the subdivision code (keep in mind that the subdivision code is defined as a “development regulation” under RCW 36.70A.030(7)).
  6. Ensure that the development agreement binds the developer to finish the project and install infrastructure on a predictable timeframe. The development agreement should describe the rights and remedies of the local government if the developer defaults on the project. The local government should be able to rely upon its administrative code enforcement process (which imposes penalties for every day of noncompliance) in addition to any judicial enforcement procedure. To ensure that there is adequate infrastructure when it is needed by the development, the agreement should provide that certain approved infrastructure exist before building permits issue.
  7. Have a template for development agreements or at the very least, use a checklist to ensure that all of the elements of a contract are present.

 


I RCW 36.70B.l70-180.
2 RCW 82.02.020.
3 Cobb v. Snohomish County, 64 Wash. App. 451,457-458, 829 P.2d 169 (1991); Trimen Development
Co. v. King County, 124 Wash.2d 261,270, 877 P.2d 187 (1994).
4 Cobb v. Snohomish County, 64 Wash. App. at 458.
5 RCW 82.02.020(2) and (3) require that the payment be expended within five years or be refunded,
unless the delay is attributable to the developer.
6 RCW 36.70B.170(1) (emphasis added).
7 Phillips v. King County, 136 Wash.2d 846, 968 P.2d 871 (1998).
8 Erickson & Associates, Inc. v. McLerran, 123 Wash.2d 864, 868, 872 P.2d 1090 (1994).
9 FDICv URIBE, Inc., 171 Wash. App. 683,688,287 P.3d 694 (2012).
1° King County v. Taxpayers of King County, 133 Wash.2d 584, 598,949 P.2d 1260 (1997).
11 King County, 133 Wash.2d at 597.
12 These “development standards” are defined, for the purposes of the section (RCW 36.70B.170) to
include, but not be limited to: densities, permitted uses, building sizes, impact fees, mitigation measures,
design standards, phasing, affordable housing, et~. RCW 36. 70B.170(3).
13 RCW 36.70B.l90, .200.
14 RCW 36.70B.l90.
13
15 In Anderson v. Issaquah, 70 Wash. App. 64, 76, 851 P.2d 744 (1993), the court invalidated the city’s
design regulations because they did not “give effective or meaningful guidance to applicants, to design
professionals or to the public officials oflssaquah who are responsible for enforcing the code.” The
regulations required that a given building project should “bear a good relationship with the Issaquah Valley
and surrounding mountains; its ‘windows, doors, eaves and parapets should be of appropriate proportions;
its colors should be harmonious with the building design; monotony should be avoided; and the project
should be interesting.” !d., 70 Wash. App. at 76. The Anderson court held that it was “unreasonable, and a
deprivation of due process, to expect or allow a design review board … to create standards on an ad hoc
basis, during the design review process.” !d. at 83
16 Myhre v. Spokane, 70 Wn.2d 207, 216, 422 P .2d 790 (I 967).
17 See, Myhre v. Spokane, 70 Wn.2d 207,422 P.2d 790 (1967).
18 !d., 70 Wn.2d at216; Redmondv. Kenzner, 10 Wash. App. 332,517 P.2d 625 (1973); see also,
dissenting opinion in Chrobuck v. Snohomish County, 78 Wn.2d 858, 887, 480 P.2d 489 (1971).
19 RCW 36.70B.l70(2).
20 RCW 36.70A.280.
21 Chapter 36.70C RCW, the Land Use Petition Act.
22 Citizens’ Alliance for Property Rights v. Sims,_I45 Wash. App. 649, 187 P.3d 786 (2008).
23 See, Citizens’ Alliance for Property Rights v. Sims, 145 Wash. App. 649, 187 P.3d 786 (2008). In
Citizens’ Alliance, property owners file a lawsuit against the County for adoption of its critical areas
regulations, alleging that it violated substantive due process, other provisions of the Washington
constitution and RCW 82.02.020. The court found that the regulations violated RCW 82.02.02 arid because
it resolved the issue on a non-constitutional basis, it did not need to consider the constitutional claims.
24 See, Humbert/Birch Creek Constr. v. Walla Walla County, 145 Wash. App. 185, 192, 185 P.3d 660
(2008). In Humbert/Birch, the developer submitted a letter to the hearing examiner stating that it agreed to
the imposition of certain conditions suggested by DOT on the development. After the hearing examiner
imposed the same conditions on the development, the developer appealed, claiming that it was deprived of
property or otherwise not accorded due process when they agreed to the improvements. The Court of
Appeals held that the invited error doctrine prohibits a party from setting up an error in the trial court then
complaining of it on appeal. It found the invited error doctrine to be constitutional because due process is
not denied when the denial results from the actor’s own act, and the local government is not required to
protect the actor from himself. Here, RCW 82.02.020 did not apply because the agreement was between
the state DOT and the developer, not the county (and RCW 82.02.020 does not apply to the state.
25 Cal. Gov. Code Section 65867, 65091, 65090.
26 Cal. Gov. Code Section 65865.5.
27 Cal. Gov. Code Section 65865.3.
28 Cal. Gov. Code Section 65865.1.
29 Unless the city has adopted a code provision allowing such extensions under RCW 58.17.140.
30 See, Zombie Subdivisions in the United States and Ghost Developments in Europe: Lessons for Local
Governments, 4 Wash. J. Envtl.L.& Pol’y 314, January, 2015.
31 RCW 58.17.195.

2017-01-12T22:43:40+00:00 June 28th, 2016|Model Development Code|0 Comments

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