Moratoria Handbook for Municipalities

//Moratoria Handbook for Municipalities

Moratoria Handbook for Municipalities

Association of Washington Cities
Risk Management Services Agency

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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.

[1]

 

II.  Authority and Exclusions – Permit Moratoria. 

 

Cities and counties have statutory authority to impose permit moratoria and interim zoning for specific purposes.  See, RCW 35.63.200; 35A.63.220; and for counties and cities planning under the Growth Management Act, RCW 36.70A.390.  These statutes authorize a municipality to adopt a six-month moratorium or interim zoning without holding a public hearing.  However, the public hearing must be held within sixty days after adoption, and if the moratorium or interim zoning is extended longer than six months, the process must be repeated.  Here is the pertinent language from the statute:

 

A legislative body that adopts a moratorium or interim zoning ordinance, without holding a public hearing on the proposed moratorium or interim zoning ordinance, shall hold a public hearing on the adopted moratorium or interim zoning ordinance within at least sixty days of its adoption, whether or not the legislative body received a recommendation on the matter from the planning agency.  If the legislative body does not adopt findings of fact justifying its action before this hearing, then the legislative body shall do so immediately after this public hearing.  The moratorium or interim zoning ordinance adopted under this section may be effective for not longer than six months, but may be effective for up to one year if a work plan is developed for related studies providing for such a longer period.  A moratorium or interim zoning ordinance may be renewed for one or more six-month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal.

 

RCW 36.70A.390.  Keep in mind that there are certain exclusions in RCW 36.70A.390 for municipalities planning under GMA[2].

 

The Washington courts have ruled that neither RCW 35A.63.220 nor RCW 36.70A.390 authorize moratoria for shoreline management regulations under chapter 90.58 RCW (the Shoreline Management Act, “SMA”).[3]  However, there is a new statute, RCW 90.58.590, adopted specifically for shoreline moratoria.  Whatever statute is used for the adoption of the moratorium, courts may not find “rolling” moratoria to be “reasonable – the court invalidated an “unreasonable” shoreline moratorium (adopted prior to RCW 90.58.590)  that was repeatedly re-enacted beyond the statutory period.[4]

 

The Forest Practices Act allows a municipality to deny permits for development on an individual piece of property for six years after the discovery of unpermitted logging.  RCW 76.09.060. [5]  While this may be referred to as a “moratorium,” it is a procedure governed by the Forest Practices Act, and is not a “permit moratorium” governed by the statutes mentioned in this section.  Furthermore, it applies to an individual piece of property, and the individual property owners are required to be given advance notice of the imposition of the moratorium.[6]

 

III.   Authority – Public Facilities or Utility Moratoria.      

 

A moratorium may also be imposed on an emergency basis without public notice or public hearings when a community faces a utility-related shortage (such as sewer and water).[7]  Because there are no procedures for the adoption of moratoria in the statutes relating to operation of municipal water and sewer systems, the most conservative course of action would be to follow the procedures set forth in the moratoria statutes.[8]

 

Concurrency ordinances are effective methods of keeping track of a municipality’s available water or capacity in its sewer system.  As an alternative to the imposition of a moratorium that must be renewed every six months for a utility-related shortage, consider adoption of a concurrency ordinance.  The concurrency ordinance would require an evaluation of the availability of water and/or sewer capacity for each application, and if the municipality had no water and/or sewer capacity, the application would be denied.  The procedures in a concurrency ordinance allow an applicant to request approval of a development application if there is an acceptable alternative to the provision of water/sewer from the City’s system, and to appeal the decision.[9]  These features of a concurrency ordinance make it a good alternative solution to a blanket moratorium, which involves the risk of litigation and may be politically unpalatable.

 

The prohibition on development resulting from a moratorium may attract more litigation than the concurrency ordinance because the developers are usually left without an appeal process once the moratorium is adopted.[10]  Some municipalities have adopted a hardship variance or exception process allowing permits to issue during the moratorium, but these can invite equal protection challenges.

 

If the moratorium is adopted for a utility-related shortage, and there is no information to suggest when it might be lifted, the conservative approach is to limit the moratorium to the statutory six-month period and follow the statutory procedures for moratorium adoption.  A public hearing should be held every six months (or one year with a work plan) on the moratorium, and the staff should present the legislative body with updated information regarding the status of the shortage.  Information should be placed in the record to document the efforts made by the staff towards alleviating the shortage.  Findings of fact supporting continuance of the moratorium should be adopted by the legislative body and entered into the record.  Such documentation will be helpful in the event of a judicial challenge – moratoria are more likely to be validated by the courts if they are temporary, narrowly tailored to address the utility problem, involve good faith efforts toward expanding the utility service (capacity or water rights), are supported by comprehensive plan planning for the needed capital facilities and demonstrate consideration of the environment and planning goals.

 

IV.  ADOPTING A MORATORIUM

 

Step 1.  Determine whether the moratorium is necessary.

 

Identify the purpose of the moratorium – what is the public problem?  Next, identify the areas of the municipality the moratorium should cover.  What general regulations or comprehensive plan amendments need to be adopted to address the problem?  Does the municipality have authority to impose a moratorium for the intended purpose?

 

Not every amendment to the development regulations or comprehensive plan requires adoption of a moratorium.  The permit moratorium preserves the status quo so that new plans and regulations will not be rendered moot by intervening development.  For example, if the city does not have a planned unit development ordinance, and wishes to consider the feasibility of such an ordinance, a moratorium is not required to preserve the status quo.  A moratorium is a drastic step and should not be undertaken lightly.

 

Step 2.  The moratorium should be adopted on an emergency basis and effective immediately.

 

Even though state law authorizes immediate adoption of emergency moratoria, members of the public will complain, erroneously believing that adoption without advance notice or a public hearing is illegal or unconstitutional.  This may lead some public officials to think that emergency adoption is not necessary.              However, a municipality’s adoption of a moratorium will likely be an unusual event – and it will be newsworthy.

 

If the moratorium is adopted without an emergency clause, there is the possibility that developers may read about the moratorium in the newspaper, and submit development applications after adoption of the moratorium up to the date the moratorium ordinance is effective (usually 5 days after publication, in code cities).  The applications submitted prior to the effective date must be processed in the same manner as all other applications.   Depending on the number of applications received by the municipality, a “non-emergency” moratorium may not be required because all of the property potentially affected by the proposed regulations/comprehensive plan amendments could be included in the submitted applications.

 

Therefore, consider the risk involved – in most instances the emergency clause will be necessary.  If there is any reticence to adopt a moratorium with an emergency clause, the legislative body can adopt the moratorium and set the date for the public hearing (to hear public testimony and deliberate whether to continue the moratorium) as soon as possible.  (After adoption of the moratorium, the municipality must hold the public hearing within 60 days.[11])

 

Initiative and Referendum:  Check the applicable statute or charter provision for your municipality.  For example, ordinances of noncharter code cities which exercise the powers of initiative and referendum are not effective for 30 days after final passage, except those ordinances listed in RCW 35A.11.090, which include:  “ordinances necessary for the immediate preservation of public peace, health and safety or for the support of city government and its existing public institutions which contain a statement or urgency and are passed by unanimous vote of the council.”

 

Step 3.  Make sure the declaration of emergency in the ordinance accurately describes the need for immediate adoption of the moratorium.

 

A legislative determination of an emergency is “conclusive and must be given effect unless it is on its face obviously false and a palpable attempt at dissimulation.”[12]  The ordinance must present sufficient facts on its face to justify the conclusion of an emergency.

 

Step 4.  Make sure the legislative body will pass the emergency moratorium when it is presented.

 

Nothing prevents staff members from communicating directly with each city council member or county commission member individually to find out whether the officials believe that a moratorium should be imposed to address the identified public problem.  The moratorium should not be discussed during open public meetings or hearings.  Such discussions are usually reported in the local newspaper and could cause a rush to the planning department to submit project permit/development applications in order to vest under the existing regulations.

 

The municipal attorney or person preparing the ordinance should determine how many votes will be required to for passage as an emergency measure.  For example, here is the provision relating to the number of votes necessary for an emergency ordinance in non-charter code cities:

 

No ordinance shall take effect until five days after the date of its publication unless otherwise provided by statute or charter, except that an ordinance passed by a majority plus one of the whole membership of the council, designated therein as a public emergency ordinance necessary for the protection of the public health, safety, public property or the public peace, may be made effective upon adoption,. .

 

RCW 35A.12.130.  Check the state law, the municipal code and charter for emergency ordinance passage rules.

 

Step 5.  Don’t put the emergency moratorium ordinance on the legislative body’s agenda.

 

The staff should draft a moratorium ordinance[13] for presentation at the next city council or county commissioners’ meeting.  The moratorium ordinance should not be included in the meeting agenda – again, advance public notice of a moratorium could cause property owners to rush down to the planning department to submit development applications that could vest under the old regulations.  The ordinance should be presented to the legislative body during the meeting.

 

Step 6.  The legislative body can pass the moratorium ordinance on the day of presentation without any notice to the public or without allowing public testimony. 

 

The legislative body does not need to engage in lengthy deliberations regarding the need for the moratorium during the meeting in which the ordinance is presented because a public hearing must be set for the purpose of taking public testimony.  On the day of presentation of the moratorium ordinance, the legislative body needs to vote whether or not a moratorium should be imposed for the purposes described in the ordinance.  If there are enough votes to pass the ordinance on an emergency basis (again, check the statutes applicable to the individual municipality, as well as charter and code provisions), then the legislative body should schedule the date for the public hearing, which must be within 60 days after adoption of the moratorium.

 

Step 7.   The staff should prepare for the public hearing on the moratorium.

 

The clerk should immediately enter the date established by the legislative body for the public hearing on the municipality’s calendar.  The clerk should be directed to provide public notice of the public hearing, as required by the municipality’s codes.  Staff should prepare a presentation to the legislative body at the public hearing regarding the  purpose of and need for the moratorium.

 

Step 8.  Make sure you comply with SEPA.

 

The municipality’s SEPA Responsible Official must perform SEPA on the moratorium ordinance.[14]  This means that a SEPA Checklist must be completed.  However, the threshold decision does not have to issue on the day of emergency moratorium adoption.

 

There is an exemption in WAC 197-11-880 for emergency actions, which provides:

 

Actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter, to avoid an imminent threat to public health and safety, to prevent an imminent danger to public or private property, or to prevent an imminent threat of serious environmental degradation, shall be exempt.  Agencies may specify these emergency actions in their procedures.

 

This would allow a municipality to adopt a moratorium ordinance on the day of its presentation to the legislative body without issuance of a threshold decision under SEPA.  It does not allow a municipality to impose a moratorium for a period of six months or more without full compliance with SEPA.  After adoption, the SEPA Responsible Official should comply with SEPA by issuing a threshold decision or by determining the moratorium categorically exempt.

 

The SEPA Responsible Official may find that a moratorium ordinance “relates solely to governmental procedures and contains no substantive standards respecting use or modification of the environment,” so it is categorically exempt under WAC 197-11-800(19).  However, an action can be categorically exempt and still be subject to SEPA under WAC 197-11-305, so be sure to review this section carefully.  In addition, SEPA should be complied with for each extension of the moratorium.

 

Step 9.   Comply with GMA in the adoption of a moratorium.

 

The staff should provide a recommendation to the legislative body addressing the manner in which the moratorium addresses the GMA planning goals in RCW 36.70A.020 (if the municipality plans under GMA).  The legislative body should consider these goals during its deliberations after the public hearing on the moratorium.

 

There is the possibility that the moratorium could be challenged as a “development regulation” adopted without adherence to the requirements of the state law.[15]  If the municipality comprehensively reviews the planning goals of GMA at the time the moratorium is adopted (and each time it is extended) it will lessen the possibility of a finding by the GMA Board or a court that the moratorium violates GMA on this basis.

 

Step 10.  Comply with all public notice and hearing requirements at the subsequent public hearing on the moratorium.

 

Notice must be provided of the public hearing.  The legislative body opens the hearing for public testimony, and accepts testimony and comment from staff and the public on the adoption of the moratorium.  The legislative body then closes the public testimony portion of the public hearing, and deliberates whether to continue the moratorium, or to change any aspect of it.  Immediately after this public hearing, staff must develop findings of fact supporting the moratorium.  These findings of fact should be incorporated into another ordinance, which is presented to the legislative body at the next regular meeting.  In the alternative, if the legislative body votes to dissolve the moratorium, an ordinance should be drafted to terminate the moratorium.

 

If the legislative body decides to include a work plan, the moratorium may be in effect for a year.  Without a work plan, the moratorium will be in effect for not more than six months.

 

Step 11.  Immediately adopt findings of fact to support the moratorium.

 

The legislative body must consider the ordinance with the moratorium findings of fact during its next regular meeting, or as soon thereafter as possible.  If the moratorium has been adopted for a six month period, the legislative body should direct the clerk to schedule review of the moratorium at least three weeks prior to the anticipated termination date.  This will ensure that the legislative body has enough time prior to the anticipated termination date to decide whether the moratorium should be extended (and to schedule another public hearing prior to the anticipated termination date) or whether the moratorium should be terminated.

 

Step 12.  Document the municipality’s activities taken pursuant to the moratorium.

 

The staff, planning commission and legislative body should immediately take steps to perform the activities identified in the moratorium ordinance, so that the moratorium can be lifted as soon as possible.  The progress or completion of each activity should be documented, in the event that there is a challenge to the moratorium.  Progress should also be documented in the event that the legislative body decides to extend the moratorium – during the public hearing on the extension, the staff should detail everything that has been accomplished during the moratorium, what steps must still be taken, and how much time is needed for completion.

 

Step 13.  Once all work contemplated by the moratorium is complete, formally terminate the moratorium.

 

After the municipality completes all of the work identified in the moratorium ordinances, the moratorium should be lifted.  This should be done with another ordinance, to eliminate any confusion as to the exact date that applications may be accepted by the municipality for processing.

 

V.  Judicial Challenges.

 

            The United States Supreme Court has approved moratoria as an acceptable planning technique.[16]  However, this does not mean that all moratoria will sustain a legal challenge, or that a developer may not prevail on his/her damage claim for delays associated with a valid moratorium.  The U.S. Supreme Court, in upholding a planning moratorium, still reiterated that a temporary takings analysis of the moratorium would involve a parcel-specific factual inquiry into the character and effect of the regulation.[17]

Therefore, several issues should be carefully analyzed before a moratorium is adopted.

 

First, consider the issue whether the moratorium is within the municipality’s authority. While the courts have ruled that municipalities have broad power under the Washington State Constitution (art. 11, sec. 11,) to impose moratoria, not every moratorium will be upheld.[18]  For example, in Biggers v. Bainbridge Island, the Washington Supreme Court invalidated a shoreline moratorium it found to be “unreasonable” based on a number of factors, including:  (1) the ordinance adopting the city’s three-year “rolling” moratorium, stated that it was necessary to allow the city adequate time to update its Shoreline Master Program, although the relevant statutes didn’t require such updating until 2011; (2) prior to the time the lawsuit was filed challenging the moratorium, “the City had years to make any required plan changes but did not do so;” (3) the moratorium was based on potential, rather than actual, demonstrated harm to shoreline habitat; (4) after adoption, the first extension changed the scope of the moratorium to remove an exemption for normal maintenance, normal repairs or emergency repairs, thereby “suspending the application process [which] private property owners to bear the costs associated with the denial of process (including property erosion and economic loss).”[19]

 

The Biggers case demonstrates that the municipality should re-evaluate the need for a moratorium every time the moratorium is extended.  As stated in the Biggers dissent:

 

A reasonable moratorium may be a valid exercise of a municipality’s power as such an exercise of power may give the city time to create a comprehensive plan.  . . .  But a reasonable moratorium must be in place no longer than necessary to accomplish the necessary planning by a body exercising diligence to accomplish that planning.  Then, the moratorium must be removed.[20]

 

As shown above, the likelihood of a challenge to a moratorium increases in direct relation to the length of time that the moratorium is in place.  Although the statutes authorizing moratoria for zoning ordinances do not place restrictions on the number of times a moratorium may be renewed, this does not mean that it may be renewed indefinitely.

 

Be aware of the requirement in the zoning moratoria statutes for the adoption of a work plan if the moratorium is to be in place for one year, as opposed to six months.  A year-long moratorium is acceptable as long as the municipality has identified the steps in the process for lifting the moratorium, and established dates for accomplishing these steps within the year.  If the municipality has adopted a six month moratorium without a work plan, and the legislative body intends to extend the moratorium, consider the conservative approach to another six-month extension, and develop a work plan to be consistent with the statute.

Another consequence of repeated renewals of a moratorium is a determination by a court or the GMA Board that it is actually a zoning ordinance, not a moratorium.[21]  A finding that it is a zoning ordinance would mean that the moratorium was invalid because it was not adopted as required by law (with the required public notice and public hearing(s)[22]).

 

In one pre-GMA case, a County adopted an “interim zoning ordinance” to be effective for four years.[23]  It was challenged, and the court held that “interim zoning ordinances” are meant to be temporary, stop-gap measures, so a zoning ordinance that was proposed to be in place for four years should have been adopted under the procedures in the Planning Enabling Act.[24]

 

One more issue to consider prior to imposing a moratorium is the vested rights doctrine.  The Washington courts have determined that a municipality’s adoption of a moratorium does not violate the vested rights doctrine.[25]  However, this ruling applies to the adoption of the moratorium and the bar it places on a developer’s ability to vest under the zoning and land use controls in existence prior to adoption.  It does not apply to the situation where complete applications have been submitted to the municipality for processing, prior to the adoption of the moratorium.  Careful attention should be paid to the drafting of the moratorium ordinance to exempt those applications that are subject to the vested rights doctrine, in order to eliminate any unnecessary legal challenges.[26]

 

IV.  Frequently Asked Questions.

 

            1.  Should the moratorium be adopted by resolution or ordinance?  Some cities and counties have adopted moratoria by resolution because a resolution is effective immediately upon passage.  However, this procedure is not recommended for the following reasons:

 

(a)  Resolutions are used to express policy, while an ordinance is used to adopt enforceable law.  There is no reason to risk a challenge to the moratorium or the enforceability of the moratorium based on form rather than substance.

 

(b)  An ordinance may be effective immediately upon adoption, as long as certain statutory (and perhaps code and/or charter) procedures are observed.  (For example, see, RCW 35A.12.130 for code cities, which requires specific findings, a certain number of affirmative votes of the whole membership of the council, etc.)  The Washington courts have upheld emergency clauses in ordinances.[27]

 

2.  How long should the moratorium be?  A moratorium authorized under RCW 35.63.200, 35A.63.220 and 36.70A.390 may be initially imposed for not longer than six months.  (A moratorium can be imposed for up to a year if a work plan is developed.)  The moratorium may be renewed for additional six-month periods, as long as the requirements of the statute are followed for each adoption.  While the statute does not impose a limit on the number of six-month extensions that can be adopted, this should not be interpreted as authority to a municipality to renew the moratorium indefinitely (to stop growth or prevent a particular type of development).

 

The most important issue to consider when determining the length of the moratorium is the purpose.  If the purpose of the moratorium is to adopt new development regulations, the steps below should be considered.  Once the new development regulations have been adopted, the moratorium should be terminated.  Consider the following when establishing the length of the moratorium:

 

a.  If the municipality is planning under the Growth Management Act, and is considering the adoption of new/amendments to the comprehensive plan and/or development regulations, the municipality must notify the Washington State Department of Community, Trade and Economic Development at least 60 days prior to final adoption.  RCW 36.70A.106.  Therefore, the moratorium should be adopted for a period longer than 60 days if the amendments have not yet been drafted.  (Keep in mind that there is a procedure in RCW 36.70A.106(3)(b) allowing a city or county to request expedited review for “permanent” changes to a development regulation.)

 

b.  The moratorium itself is subject to the State Environmental Policy Act (“SEPA”).[28]  While the initial moratorium ordinance could be adopted without notice to the public or without a public hearing (under WAC 197-11-880), SEPA review of the moratorium should be performed after adoption.  A SEPA checklist should be prepared and a threshold determination made prior to the public hearing (which is required within 60 days after adoption of the moratorium).

 

c.  The draft ordinance amending the comprehensive plan/development regulations (that will be developed during the moratorium) must be reviewed under the State Environmental Policy Act, unless it is exempt from SEPA.[29]

 

d.  The draft ordinance amending the comprehensive plan/development regulations must be considered (usually) by the planning commission in a public hearing, and there may be more than one hearing, depending on the complexity or public interest in the subject matter.  Notice must be provided of all of these public hearings.  RCW 36.70A.035.

 

e.  The staff may need time to physically transcribe the planning commission’s recommendation to the council/commissioners.

 

f.  After the city council or county commissioners receive the recommendation and draft ordinance, they may decide to make changes, which would necessitate another hearing (if the public has not had an opportunity to review and comment on the changes).  See, RCW 36.70A.035(2).

 

3.  We need to adopt a moratorium for a utility-related shortage, but we have no information to suggest when it might be lifted in the near future.  Can the moratorium be adopted indefinitely?   The best course of action is to follow the procedures established by statute.[30]  This may mean that the municipality will have to renew the moratorium for six month periods and hold additional hearings.  During this time, the municipality’s staff should be updating the legislative body at each hearing as to the utility’s progress in lifting the moratorium.  For example, during a hearing on the continuation of a water moratorium, the staff could inform the legislative body of the status of Department of Ecology’s processing of the municipality’s water rights application.  It may be that the municipality does not expect to be able to lift the moratorium for two years, but reviewing the facts supporting the moratorium every six months keeps the legislative body and the public up to date on the progress of the staff’s work towards termination.  This also builds the administrative record on the moratorium that will be necessary if a challenge is filed.

 

4.  Is a moratorium really necessary?  For example, if the staff is aware that the municipality has no more water, can’t the staff simply reject new development applications, and explain this situation to the individual property owners?  No.  Staff members are required to follow code procedures and are not authorized to reject development applications unless a moratorium is in place.  The legislative body should receive information on a timely basis on the status of all utility services (and traffic concurrency), and if there are problems, the staff should let the legislative body know as soon as possible.  The legislative body must make the decision to adopt a moratorium.

 

Keep in mind that adoption of a moratorium is a legislative act.  The municipal officials have immunity from liability for their legislative acts.  RCW 4.24.470;  Bogan v. Scott Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).  Action by the staff in rejecting applications without an authorizing moratorium could subject the municipality and individual staff members to liability.

 

5.   How do we decide which permit applications are subject to the moratorium?  There are two major issues to consider.  First, the moratorium should be crafted so that it covers those types of permit applications that would affect the status quo – not all project permit or development applications in the city.  Second, the city should exempt the vested applications from the moratorium.

 

Applications that affect the status quo:  If the purpose of the moratorium is to amend the city’s planned unit development regulations, and the city only allows planned unit developments in certain zoning districts, then the moratorium should be imposed on applications for planned unit developments in the zoning districts where they are allowed.

The moratorium should not be broader than needed to address the problem.

 

If a moratorium has been imposed because the city’s water system cannot provide any additional water hook-ups, the moratorium should be imposed on all hook-ups and development applications for which the applicant is requesting a water hook-up or a recommendation that the city’s water system can provide water for a particular development.  There are many situations in which a city is only one of a number of water purveyors within city limits, so the moratorium only needs to address the applications within the City’s water service area.

 

Keep in mind that certain types of applications, like a preliminary plat application, requires a recommendation from the “local health department or other agency furnishing sewage disposal or providing water as to the adequacy of the proposed means of sewage disposal and water supply.”  RCW 58.17.150.  This recommendation must be provided prior to the public hearing on the preliminary plat application, so that written findings can be made whether the proposed subdivision makes appropriate provisions for potable water supplies and sanitary wastes.  RCW 58.17.110.  If a recommendation has issued stating that the city has adequate water or sewer, that recommendation should not be modified or affected by the moratorium.  See, RCW 58.17.150(3).

 

Vested Applications.  Under the Washington vested rights doctrine, once a developer submits a complete application for a permit,[31] the municipality cannot frustrate the development by enacting new regulations for use in reviewing the application.  A vested right does not guarantee a developer the right to build.  It merely establishes the ordinances to which the permit and subsequent development must comply.[32]  The application is then “vested” to the building and land use control ordinances in place at the time a complete application is submitted, so long as that permit is subject to the vested rights doctrine and the permit issues.[33]

 

If the municipality enacts a moratorium, those permit applications that are vested should not be subject to the moratorium, because the vested rights doctrine requires that the municipality review the application under the building and land use control ordinances in place at the time the complete application was submitted.  Keep in mind that if a municipality subjects the vested applications to the moratorium, it will only have the effect of delaying issuance of the final decision – it will not change the regulations under which the application must be reviewed.[34]  If the final decision on a project permit application is delayed, the municipality could be subject to damages under RCW 64.40.020.

 

Therefore, the moratorium ordinance should exempt all vested applications.  This includes the applications that were complete prior to the adoption of the moratorium ordinance, regardless of the date of issuance of the Notice of Complete Application.

 

 

 

 


[1] Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969), holding modified by, State v. Post, 118 Wn.2d 596, 826 P.2d 172 (1992), note 8; Mayer Built Homes, Inc. v. Town of Steilacoom, 17 Wash. App. 558, 564 P.2d 1170 (1977).   See also, Byers v. Board of Clallam County Comm’rs., 84 Wn.2d 796, 801, 529 P.2d 823 (1974) (the court found that the County’s adoption of a detailed zoning ordinance which was 30 pages long, scheduled to be effective for 4 years, without a determination that there was an emergency requiring “interim zoning,” was not an interim zoning ordinance).

[2]  RCW 36.70A.390 does not apply to the designation of critical areas, agricultural lands, forest lands and mineral resource lands and the protection of these areas under RCW 36.70A.060 prior to such actions being taken in a comprehensive plan adopted under RCW 36.70A.070 and implementing development regulations adopted under RCW 36.70A.120, if a public hearing is held on such proposed actions.   See, Matson v. Clark County Board of Commissioners, 79 Wn. App. 641, 904 P.2d 317 (1995) (“it is not that moratoriums and interim zoning controls cannot be imposed on resource lands, but rather that actions involving resource lands under RCW 36.70A.060 and .170 are not considered to be moratoriums or interim zoning controls for the purposes of RCW 36.70A.390.”)

[3] Biggers v. Bainbridge Island, 162 Wn.2d 683, 169 P.3d 14, 25 (2007).

[4] Id., 169 P.3d at 26.  In “The Legality of Washington Shoreline Development Moratoria in the Wake of Biggers v. City of Bainbridge Island,” by Michelle E. DeLappe, Washington Law Review, February 2009, she agrees that Biggers provides persuasive precedent for upholding reasonable shoreline moratoria.

[5]  Municipalities are required to adopt procedures for the implementation of the Forest Practices Act.

[6] See, Berst v. Snohomish County, 114 Wn. App. 245, 57 P.3d 273 (2002).

[7] See, Covington Greens Associates v. Covington Water District, 931 F. Supp. 738 (W.D. Wash. 1996); see, RCW 35A.21.160, RCW 35.67.020, “every city has full jurisdiction and authority to manage, regulate and control” a system of sewerage.  RCW 35.92.010, “a city or town may operate, construct waterworks, with full power to regulate and control the use and distribution of water, for all purposes, public and private.

[8] For cities, RCW 35.63.200; 35A.63.220.

[9] Some cities adopt moratoria with a provision allowing a “hardship variance,” which gives the legislative body the ability to grant individual exemptions from the moratorium.  These variances can be problematic, if there are no standards to guide the use of discretion.  It can also raise questions about the need for the moratorium – after all, if the city has adopted a moratorium because it has no sewer capacity to allow additional connections, the public may question the city’s decision to issue sewer hook-ups during the moratorium under the hardship variance.

[10] This is not to say that the moratorium itself cannot be appealed, but when it is acknowledged that the moratorium is justified, a property owner will not mount a useless appeal.

[11] RCW 35.63.200, 35A.63.220, 36.70A.390.

[12] Matson v. Clark County Board of Commissioners, 79 Wn. App. 641, 904 P.2d 317 (1995).  The Matson case involved a County’s imposition of a moratorium, and a challenge to the emergency clause.

[13] Ordinance forms have been attached.

[14] Master Builders Ass’n. v. City of Sammamish, CPSGMHB No. 05-3-0030, Order Segregating Case from the Consolidated Case and Final Decision and Order in Case No. 05-3-0027 (8-4-05).

[15] See, Master Builders Ass’n. v. City of Sammamish, CPSGMHB No. 05-3-0030, Order Segregating Case from the Consolidated Case and Final Decision and Order in Case No. 05-3-0027 (8-4-05).

[16] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).

[17] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).  Keep in mind that there may be a different analysis for utility related moratoria.  See, Lockary v. Kayfetz, 587 F. Supp. 631 (N.D. Cal. 1984) (12 year water hookup moratorium states taking cause of action), subsequent proceedings, 908 F.2d 543 (9th Cir. 1990) (water hookup not a taking if due to water shortage thereby precluding summary judgment), superceded, 917 F.2d 1150 (9th Cir. 1990) (unless it denies viable economic use, no confiscation by enactment of restriction; facial challenge rejected, may be illegal discrimination.); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th Cir. 1994) (temporary water moratorium valid as meets rational basis test and even if it lasts a year it is a reasonable time.)

[18]  Biggers v. Bainbridge Island, 162 Wn.2d 683, 169 P.3d 14 (2007).

[19]  Id., 169 P.3d at 18.

[20]  Biggers, 162 Wn.2d at 688,  169 P.3d at 26.

[21]  Master Builders Ass’n. v. Sammamish, CPSGHMB No. 05-2-0030c, Order Segregating Case No. 05-3-0027 from the Consolidated Case and Final Decision and Order in Case No. 05-3-0027, August 5, 2005.

[22] RCW 35.63.100, RCW 35A.63.070, RCW 36.70A.140.

[23]  Byers v. Board of Clallam County Commissioners, 84 Wn.2d 796, 529 P.2d 823 (1974).

[24]  RCW 35.63.100, RCW 35A.63.070.

[25]  Matson v. Clark County Bd. Of Comm’rs., 79 Wash. App. 641, 648, 904 P.2d 317 (1995).

[26]  See, WCHS, Inc. v. Lynnwood, 120 Wn. App. 668, 86 P.3d 1169 (2004).  Although the city in this case adopted an interim zoning ordinance, not a moratorium, the consequences to a municipality imposing a moratorium would be the same.  If complete applications have been submitted to the municipality, and these applications are subject to the vested rights doctrine, the municipality cannot adopt a moratorium to frustrate the development.

[27] Matson v. Clark County Bd. Of Comm’rs., 79 Wash. App. 641, 904 P.2d 317 (1995) (emergency adoption with statement of the underlying emergent facts upheld).

[28] Master Builders Ass’n. v. City of Sammamish, CPSGMHB No. 05-3-0030, Order Segregating Case from the Consolidated Case and Final Decision and Order in Case No. 05-3-0027 (8-4-05).

[29] To determine whether the ordinance is exempt from SEPA, review WAC 197-11-800 and chapter 43.21C RCW – as well as the city or county’s SEPA chapter.  If the new ordinance involves substantive standards affecting use or modification of the environment, the ordinance will not be categorically exempt.  WAC 197-11-800(19).

[30] For cities, RCW 35.63.200.

[31] Not all permits are subject to the vested rights doctrine.  Some of the permit applications that will vest under state law and case law are: (1) building permits, RCW 19.27.095(1); (2) preliminary plats, RCW 58.17.033(1); (3) short plats, Noble Manor v. Pierce County, 133 Wn.2d 269, 943 P.2d 1378 (1997); shoreline substantial development permits, Tabot v. Grey, 11 Wn. App. 807, 525 P.2d 801 (1974); conditional use permits, Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968).  The municipality may also adopt code provisions to allow other types of permits to vest.  Erickson v. McLerran, 123 Wn.2d 864, 872 P.2d 1090 (1994).

[32] West Main v. Bellevue, 106 Wn.2d 47, 420 P.2d 782 (1986).

[33] Mercer Enterprises Inc. v. Bremerton, 93 Wn.2d 624, 611 P.2d 1237 (1980).

[34] See, WCHS, Inc. v. City of Lynnwood, 120 Wash. App. 668, 86 P.3d 1169 (2004).  In this case, a property owner submitted a complete building permit application to the city.  The city subsequently adopted an interim zoning ordinance prohibiting the use identified in the building permit, in an attempt to block the development.  Even though the elements of a complete building permit application are identified in state law and the city’s code (as required by RCW 36.70B.080), the city argued that the building permit application was not complete, and therefore subject to the interim zoning ordinance.  The court reversed the city, and allowed the development to proceed because it had vested prior to the adoption of the interim zoning ordinance.

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