moratorium

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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|

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|