Subdivisions – Recent Developments in Concurrency, Expiration of Approval, Completion and Maintenance of Public Improvements
Carol A. Morris
Morris Law, P.C.
3304 Rosedale St. N.W., Suite 200
Gig Harbor, WA 98335
Those cities and towns planning under the Growth Management Act (“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. GMA encourages municipalities to adopt concurrency ordinances for other public facilities and services, such as water and sewer. Both GMA and non-GMA cities also must perform basic concurrency analyses prior to making a final decision on any short or preliminary plat.
“Concurrency” means that adequate public facilities or services are available when the impacts of development occur. “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. The deadline for availability of transportation facilities for GMA cities is six years from the time of development. 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. 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. 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.
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.” 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. 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” […]