project permit applications

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Should Your City Change to a Hearing Examiner System?

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

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

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

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

 

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

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

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

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

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

Concurrency and Moratoria

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

I.          CONCURRENCY

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

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

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

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

B.      

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