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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|