Where does a school "route" end and a school "zone" begin? Does a school route need signs? How far away can a zone begin?
Reviewed: 06/17
RCW 46.61.440(2) governs school zones, independently of school routes, and states (emphasis added):
(2) A county or incorporated city or town may create a school or playground speed zone on a highway bordering a marked school or playground, in which zone it is unlawful for a person to operate a vehicle at a speed in excess of twenty miles per hour. The school or playground speed zone may extend three hundred feet from the border of the school or playground property; however, the speed zone may only include area consistent with active school or playground use.
So, school zones relate to traffic speed control on streets abutting schools.
In contrast, school routes are intended as safe walking routes for school children and may have signs. For more information on school routes, see WSDOT’s School, Walk, and Bike Routes publication.
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May sewer lines cross rural lands to serve another portion of a UGA without violating RCW 36.70A.110(4)?
Reviewed: 01/17
RCW 36.70A.110(4)’s prohibition against extending urban services to rural areas does not prevent a jurisdiction from allowing urban governmental services to traverse a rural area to service another UGA. In Heikkila v. City of Winlock, the Western Washington Growth Management Hearings Board (WWGMHB) addressed a challenge to a jurisdiction’s planning policies that would allow the extension of urban services from one UGA to another UGA that required the infrastructure to pass through rural land. The WWGMHB concluded that such services could pass through rural lands so long as they did not provide service in the rural areas. In relevant part, the WWGMHB wrote:
The prohibition in RCW 36.70A.110(4) does not apply to urban services in urban growth areas. Urban growth areas by definition are allowed to have urban levels of growth and should have the urban services to support that growth. See RCW 36.70A.030(17), (18), and (19). Nor can the statute be read to mean that water service lines cannot pass through rural lands. The reason for the prohibition in RCW 36.70A.110(4) against providing urban services to rural areas is that urban services in the rural areas would create pressure to urbanize the rural areas and create sprawl. Thurston County v. Cooper Point Association, 148 Wn. 2d 1, 57 P. 3d 1156 (2002). If the Winlock water lines just traverse the rural areas and do not serve them, it will not violate RCW 36.70A.110(4).
The Petitioner does not point to any statutory prohibition against providing water services from one UGA to another. The burden is on the Petitioner(s) to demonstrate why the challenged amendments violate the GMA. The legislature has directed the boards to grant deference to counties and cities in how they plan for growth, consistent with the goals and requirements of the GMA. RCW 36.70A.3201. Comprehensive plan amendments are presumed valid upon adoption. RCW 36.70A.320. Here, as the Central Board stated in Gain v. Pierce County, CPSGMHB Case No. 99-3-0019 (Final Decision and Order, April 18, 2000), “Petitioners offer no statutory provisions to support their assertion that sewer [or water] lines must be confined within the boundaries of UGAs and cannot pass through rural areas.” RCW 36.70A.110(4) does not preclude municipalities from providing water service from one UGA to another.
Conclusion: RCW 36.70A.110(4) does not prohibit a municipality from extending water service from its own UGA to another GMA-compliant UGA. Because we find that non-compliance has not been proved, there can be no finding of substantial interference with the goals of the GMA based on RCW 36.70A.110(4). . . .
For more information, see Heikkila v. City of Winlock, WWGMHB No. 04-2-0020c. Order on Motions at 6 (Jan. 10, 2005). See also Fallgatter v. City of Sultan, CPSGMHB Case Nos. 06-3-0003, 06-3-0034, 07-3-0017 Combined Order of Compliance at 11 (Nov. 10, 2008) (“[T]he Board has previously found that sewer lines extending beyond the UGA into the rural area to re-connect with the UGA or another UGA is not prohibited under the GMA, so long as connections to such a line in the rural area are prohibited.”).
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How often are cities required to adopt or approve their capital facilities plan?
Reviewed: 11/16
A capital facilities plan should be updated at least every two years. Under the Growth Management Act (GMA), the capital facilities element of the comprehensive plan must include “at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes.” RCW 36.70A.070(3)(d) As per WAC 365-196-415(2)(c)(ii):
The six-year plan should be updated at least biennially so financial planning remains sufficiently ahead of the present for concurrency to be evaluated. Such an update of the capital facilities element may be integrated with the county's or city's annual budget process for capital facilities.
RCW 35A.63.073 requires plan amendments to be processed the same way as adoption of the plan, and RCW 35A.63.070 requires the "planning agency" (typically a planning commission) to hold a public hearing (at least one) and RCW 35A.63.071 requires the planning agency to forward its recommendations on the plan or amendment to the city council. Generally, amendments to the comprehensive plan may only occur once per year. However, the GMA provides exceptions for the capital facilities plan when “amendment of the capital facilities element of a comprehensive plan . . . occurs concurrently with the adoption or amendment of a county or city budget.” RCW 36.70A.130(2)(a).
You may also find our Capital Facilities Planning topic page helpful as well.
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Request for examples of regulations dealing with portable mobile cellular sites called "Cells on Wheels," which provide temporary network and wireless coverage, usually via vehicles such as trailers, vans, and trucks.
Reviewed: 06/16
The following code provisions provide a range of approaches for the regulation of temporary wireless communication facilities:
- Edmonds Municipal Code, Chapter 20.50 - Wireless Communication Facilities, Section 20.50.120 - Temporary Facilities - appears to be focused on emergency use.
- Federal Way Municipal Code, Chapter 19.255 Personal Wireless Service Facilities, Section 19.255.040 - Temporary Personal Wireless Service Facilities - authorizes community development director to allow cells on wheels facilities under certain circumstances.
- Kent Municipal Code, Chapter 15.08 - General and Supplementary Provisions, Section 15.08.035 - Wireless Telecommunications Facilities - exempted from the WTF provisions and allowed in all zones for up to 30 days, unless there is an emergency or the time is extended by planning manager (see subsection (D)(5)).
- Phoenix Municipal Code, Chapter 7- Development Standards of General Applicability, Section 715 - Satellite Earth Stations and Wireless Communication Facilities, Subsection (B)(6) - Standards for the Use of "Cell on Wheels" (COWS) Apparatus" - requires a Temporary Use Permit and adherence to listed standards.
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Request for ordinances from smaller cities regulating accessory dwelling units (ADUs).
Reviewed: 04/16
Listed below are examples of ADU provisions from smaller-sized communities:
See the following additional materials regarding ADUs:
- QuickNotes Article titled "Accessory Dwelling Units," Planning Advisory Service (PAS), American Planning Association, 2009
- "Accessory Dwelling Units: Model State Act and Local Ordinance," Rodney Cobb and Scott Dvorak, The Public Policy Institute, AARP, 2000
- Featured Tool: Accessory Dwelling Units (ADU) webpage, Puget Sound Regional Council
- Accessory Dwelling Units: Issues & Options, MRSC, 1995. This is an older MRSC document, but it still contains some useful information.
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Request for examples of zoning or development code provisions that allow for a bonus in density for affordable housing.
Reviewed: 12/15
Density bonus code provisions:
- Federal Way Zoning Code Sec. 19.110.010 - Affordable Housing Regulations - Multifamily projects over 25 units must provide affordable units, and may then build bonus units. Single family developments have the option of reduced lot size in exchange for affordable units.
- Kirkland Municipal Code Title 23, Ch. 112 - Affordable Housing Incentives Multifamily - All developments with over four units and located in certain zones must provide some affordable units. Bonus units as an incentive are an option in zones where affordable units are not required. Off-site provision of units or cash payments in lieu of affordable units are options, under certain circumstances.
- Marysville Municipal Code Ch. 22C.090 - Residential Density Incentives - Bonus available for permanently restricted low-income rental units and low-income senior rental units. Also available for mobile home space for mobile home displaced from closed park.
- Redmond Zoning Code Sec. 21.20.070 - Bonus for Senior Affordable Housing; requires an Affordable Housing Agreement
- Shoreline Municipal Code Sec. 20.40.230 - Example of simple density bonus code for affordable housing
- Snohomish Municipal Code Ch. 14.285 - Low-Income Housing Incentives - Smaller city example. Bonus and reduced parking available for certain multi-family and senior housing developments.
Other:
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What are the state requirements for development review performance reporting in jurisdictions planning under the Growth Management Act?
Reviewed: 11/15
RCW 36.70B.080(2) contains the reporting requirements relating to development project permit applications:
(a) Counties subject to the requirements of RCW 36.70A.215 and the cities within those counties that have populations of at least twenty thousand must, for each type of permit application, identify the total number of project permit applications for which decisions are issued according to the provisions of this chapter. For each type of project permit application identified, these counties and cities must establish and implement a deadline for issuing a notice of final decision as required by subsection (1) of this section and minimum requirements for applications to be deemed complete under RCW 36.70B.070 as required by subsection (1) of this section.
(b) Counties and cities subject to the requirements of this subsection also must prepare annual performance reports that include, at a minimum, the following information for each type of project permit application identified in accordance with the requirements of (a) of this subsection:
(i) Total number of complete applications received during the year;
(ii) Number of complete applications received during the year for which a notice of final decision was issued before the deadline established under this subsection;
(iii) Number of applications received during the year for which a notice of final decision was issued after the deadline established under this subsection;
(iv) Number of applications received during the year for which an extension of time was mutually agreed upon by the applicant and the county or city;
(v) Variance of actual performance, excluding applications for which mutually agreed time extensions have occurred, to the deadline established under this subsection during the year; and
(vi) The mean processing time and the number standard deviation from the mean.
(c) Counties and cities subject to the requirements of this subsection must:
(i) Provide notice of and access to the annual performance reports through the county's or city's web site; and
(ii) Post electronic facsimiles of the annual performance reports through the county's or city's web site. Postings on a county's or city's web site indicating that the reports are available by contacting the appropriate county or city department or official do not comply with the requirements of this subsection.
(Emphasis added.)
Here are some examples of annual performance reports from Washington cities:
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Does the town need to send proposed amendments to procedural development regulations to the Department of Commerce at least 60 days prior to adoption?
Reviewed: 10/15
RCW 36.70A.106(1), which requires that proposed amendments to comprehensive plans and development regulations in GMA jurisdictions be submitted to the Department of Commerce (DOC) at least 60 days prior to adoption, makes no distinction between substantive and procedural development regulations. So, the language of the statute would seem to require that changes to procedural regulations also be submitted for this 60-day review. However, it's our understanding that, as a practical matter, DOC does not look at or have the time to review amendments to development regulations that are solely procedural.
Nevertheless, it appears that strict compliance with this requirement is necessary, according to the Growth Management Hearings Board. In Cameron-Woodard Homeowners' Association v. Island County, Order on Dispositive Motion, WWGMHB Case No. 02-2-0004 (2002), confronted this issue directly and held that procedural amendments must be submitted to CTED (now Department of Commerce) under RCW 36.70A.106(1):
For the first time, this case singularly presents the issue of whether compliance can be found for a DR amendment which was submitted not in compliance with RCW 36.70A.106. Regardless of the convenience to the Department and to the various local governments involved, we do not find any language in the GMA which distinguishes between regular, "procedural" or ministerial amendments. RCW 36.70A.106 was adopted in 1991 and has not been amended since that time. It specifically provides that a county "shall notify the Department of its intent to adopt amendments". The notice must be "at least 60 days prior to final adoption." There is no room for interpretation of this statute as the language is direct and specific.
We do not have the authority, as the County implies, to overlook a failure to comply. The GMA is clear that if a Board finds a failure to comply, it must remand the matter to the County to cure the noncompliance.
In order to comply with the GMA, the County must submit Ordinance C-159-01 to the Department anew. It is not sufficient that the ordinance was submitted subsequent to its adoption in order to comply with this portion of the statute. The submission must be accompanied by a notice indicating that 60 days are available for review and that comments by "state agencies, including the department" will be considered as if final adoption had not yet occurred.
So, the town should send its proposed amendment to procedural development regulations to DOC at least 60 days prior to adoption.
If time is an issue, however, another option would be for the local government to request “expedited review” for any minor changes to its development regulations (whether procedural or non-procedural), as allowed under RCW 36.70A.106(3)(b). This type of request may be granted by DOC, after consultation with other state agencies, if it determines that the request will not compromise its ability to provide timely comments. Cities and counties may adopt proposed amendments “immediately following the granting of the request for expedited review.”
Note: In the specific hearings board case cited above, the procedures were factually determined to be part of the development regulations in question. Many local governments, however, have created a “development permit procedures and administration” chapter in their codes, separate and distinct from their specific development regulations. This separate type of chapter addresses the processes and timelines for a wide variety of regulations (from electrical and building codes to subdivision and zoning codes), and does not include specific “controls placed on development or land use activities” (from the definition of development regulation contained in RCW 36.70A.030). It is unclear whether or not the hearings board would view a separate “permit procedures and administration” chapter as being part of a local government’s development regulations.
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Can a city or county regulate the design and location of mailboxes?
Reviewed: 06/15
In general, the U.S. Postal Service has complete authority over approving or disapproving the availability of curbside delivery as well as the location and design of mailboxes. Although a city may have some limited authority to regulate certain aspects of mailbox design or location (e.g. placement to prevent obstruction of sidewalk use), the city generally cannot overrule a mailbox design or location that has been approved by the Postal Service. Given these limitations, MRSC recommends that cities/counties work with the local post office when determining the design and placement of curbside mailboxes, as the local postmaster has primary control over the approval of mailbox design and locations. We found a few cities and counties that include provisions in their codes covering the design or placement of mailboxes. In general, these provisions direct individuals to the postal service for approval over mailbox design and placement.
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Does the removal of the interior lot line between two lots constitute a plat alteration or a boundary line adjustment?
Reviewed: 04/15
The removal of the interior lot line between two lots is generally considered to be a boundary line adjustment. See Island County v. Dillingham Dev. Co., 99 Wn.2d 215, 223 (1983), in which the state supreme court held that combining lots and portions of lots by changing boundaries to form larger lots does not result in the creation of additional lots and is therefore exempt from the platting requirements of chapter 58.17 RCW; the court stated:
Based on the suggestions of the auditor and the prosecuting attorney, the respondents combined 400 Brooklyn and Chicago plat undersized lots by changing boundaries, incorporating lots or half lots to fulfill the minimum requirements of a 60-foot-wide lot and an area of at least 12,500 feet. This was done in accordance with section 6 of the Island County interim zoning ordinance which authorized grouping of undersized lots in sufficient multiples to meet density requirements.
We hold that the Chicago and Brooklyn combinations were boundary line adjustments which did not result in the creation of any additional lots, and were thus exempt from the platting requirements of the local planning commission.
The state supreme court reaffirmed its holding in Dillingham in City of Seattle v. Crispin, 149 Wn.2d 896, 903-04 (2003):
In Dillingham, Island County brought suit against land developers claiming the boundary adjustments in that case resulted in an illegal subdivision because the owners never received permission to make the adjustments. We disagreed and held a reconfiguration of boundary lines without the creation of additional lots was a boundary line adjustment that did not require approval under state or local subdivision laws. Dillingham, 99 Wn.2d at 223. We relied on the exemption in RCW 58.17.040, the same statute applicable in the present case. The land owner in Dillingham had adjusted the boundaries of an old plat to combine what had been substandard lots into fewer, larger lots that met the current zoning requirements. After the adjustment, the lots could then be sold. We held the reconfiguration was a boundary line adjustment exempt from the subdivision process. The interpretation of the statute we adopted in Dillingham established that boundary line adjustments which do not result in the creation of any additional lots are exempt from the platting requirements of local planning commissions and are exempt under the specific language of RCW 58.17.040.
So, these two cases confirm the conclusion that combining lots by eliminating interior lot lines is a boundary line adjustment that is, under RCW 58.17.040(6), exempt from subdivision requirements in chapter 58.17 RCW, including the requirements that apply to the alteration of a subdivision in RCW 58.17.215 or, in the case of short plats, under locally adopted procedures.
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How is a conditional use permit affected by the sale of the property for which the permit was issued?
Reviewed: 02/15
Although this is not addressed by statute or by case law in this state, our legal staff has opined that a conditional use approval typically runs with the land, rather than being personal to the applicant. Other authority and general principles of land use law support this conclusion. We have cited Rathkopf, The Law of Zoning and Planning, § 61:50 (citing authority from other states).
So, a change of ownership generally would not affect the status of a conditional use permit
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Does the county have the option to withdraw from fully planning under the GMA?
Reviewed: 02/15
The 2014 Legislature amended the GMA to allow certain counties to withdraw, within a limited time frame, from voluntary planning under the GMA. The withdrawal process is set forth in
RCW 36.70A.040(2)(b)(i). Until December 31, 2015, counties that have voluntarily chosen to plan under the GMA may adopt a resolution removing the county and the cities located within the county from most GMA requirements, so long as:
1. The county has a population, as estimated by OFM, of 20,000 or fewer inhabitants at any time between 4/1/10 and 4/1/15;
2. The county has previously adopted a resolution indicating its intention to voluntary plan under the GMA; and
3. At least 60 days prior to adopting a resolution for partial planning, the county notifies in writing each city in the county of its intent to adopt a withdrawal resolution.
However, if 60 percent of the cities within the county that have an aggregate population of at least 75 percent of the incorporated county population adopt resolutions opposing the action and provide the county with written notice of the resolutions, the county cannot withdraw.
If the county adopts such a resolution to withdraw, it cannot adopt a resolution to fully comply with the GMA for a minimum of 10 years.
The term "partial planning" used in this statute refers to the fact that counties/cities not fully planning under the GMA are still subject to certain requirements in the GMA. As stated in the final bill report:
The adoption of a resolution, however, does not nullify or otherwise modify requirements of the GMA for counties and cities relating to:
• designating natural resource lands;
• designating and protecting critical areas;
• employing the best available science in designating and protecting critical areas; and
• the rural element of a comprehensive plan.
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May a city or county amend its building code to provide for a hearing examiner in place of a building code board of appeals? If so, is State Building Code Council approval required for this type of amendment?
Reviewed: 02/15
Yes, it's our opinion that a city or county may amend the building code pursuant to the authority in
RCW 19.27.040 to provide for a hearing examiner to perform the role of the board of appeals that is required under the International Building Code (IBC) and the International Fire Code (IFC), which are part of the state building code. That statute provides:
The governing body of each county or city is authorized to amend the state building code as it applies within the jurisdiction of the county or city. The minimum performance standards of the codes and the objectives enumerated in RCW 19.27.020 shall not be diminished by any county or city amendments.
The IFC, at Sec. 108.1 and Sec. 108.3, provides:
108.1 Board of appeals established. In order to hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals. The board of appeals shall be appointed by the governing body and shall hold office at its pleasure. The fire code official shall be an ex officio member of said board but shall have no vote on any matter before the board. The board shall adopt rules of procedure for conducting its business, and shall render all decisions and findings in writing to the appellant with a duplicate copy to the fire code official.
108.3 Qualifications. The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions or fire protection systems, and are not employees of the jurisdiction.
The IBC, at Sec. 113.1 and Sec. 113.3, provides:
113.1 General. In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals. The board of appeals shall be appointed by the applicable governing authority and shall hold office at its pleasure. The board shall adopt rules of procedure for conducting its business.
113.3 Qualifications. The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to building construction and are not employees of the jurisdiction.
For many jurisdictions, particularly smaller ones, it may be difficult to have on hand qualified, multiple-member appeals boards as set out above. Any hearing examiner appointed in place of a board would, however, need to possess the qualifications as set out in IFC Sec. 108.3 and IBC 113.3, and it think it would likely be necessary to have two separate examiners, one for each code.
We don't think that State Building Code Council approval under
RCW 19.27.060(1)(a) is required for an amendment like this. That statute requires that:
No amendment to a code enumerated in RCW 19.27.031 as amended and adopted by the state building code council that affects single-family or multifamily residential buildings shall be effective unless the amendment is approved by the building code council under RCW 19.27.074(1)(b).
Appointing hearing examiners in place of these boards of appeals does not in any way affect the code standards that affect single-family or multifamily residential buildings.
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What cities and counties require separation between marijuana stores?
Reviewed: 11/14
Our search revealed the following cities and counties that have separation requirements regarding other retail marijuana uses (unless otherwise indicated, the distance is from other retail marijuana uses):
- Bellevue Ordinance No. 6156, interim regulations (1000')
- Burlington Municipal Code, Sec. 17.42.020.V.3.d (1000' from another marijuana use)
- Chelan Municipal Code Sec. 17.04.170.B.9 (1000')
- Cowlitz County Code Sec. 18.76.070.L (300')
- Everett Ordinance No. 3507-14, interim regulations (2500')
- Gig Harbor Municipal Code Sec. 17.63.030.F (2500')
- Hoquiam Municipal Code Sec. 10.05.077 (1000' from marijuana production or processing facility)
- Issaquah Municipal Code Sec. 18.07.512 (1,000' of any other recreational marijuana facility)
- Mukilteo Municipal Code Sec. 17.16.040.B.66 (1000' of a production or processing facility or collective garden)
- Oak Harbor Municipal Code Sec. 19.22.040(1)(d)(v)(H) (1000' of a marijuana processing or production facility)
- Pacific County Ordinance No. 162A (any marijuana use may not be within 1000' of a marijuana retail outlet)
- Vancouver Municipal Code Sec. 20.884.020.B (300')
- Zillah Municipal Code Sec. 8.40.030.B.5 (not "within 2,000 feet of another recreational marijuana establishment unless they are under common ownership")
It is, of course, possible that we missed some cities or counties that have such separation requirements.
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Questions regarding division of land by testamentary provisions: (1) how does the county determine if a quit claim deed recorded by the executor of an estate is in conformance with RCW 58.17.040(3)?; and (2) does the executor have the right to subdivide property has he or she sees fit, or is it more complicated than that?
Reviewed: 06/14
There's a good discussion of the testamentary exception to the subdivision statutes in In re Estate of Telfer, 71 Wn. App. 833, 836-37 (1993):
Laws of descent are those governing transmission of an intestate's real property. Heirs take property by laws of descent as tenants in common. Creating a tenancy in common does not constitute a property division because it does not create new parcels. Statutes should not be interpreted in such a manner as to render any portion meaningless, superfluous or questionable. To give substantive meaning to the phrase "[d]ivisions made by . . . the laws of descent", the property held in tenancy in common resulting from intestacy must be divisible into separate parcels without complying with the platting requirements. Under this reading, "divisions" does not mean that the property is legally divided ipso facto by the laws of descent, but that the division, by agreement or partition action, which ensues following the operation of the laws of descent is exempt from platting requirements.
Given the meaning of "division" with regard to the laws of descent, established principles of statutory construction and normal rules of grammar require that "division" have the same meaning as applied to "testamentary provisions". That is, a will need not divide the property into separate parcels, but a division of the property by those taking under the residuary clause may be made without complying with short plat requirements.
(Our emphasis; footnotes omitted.) So, either the will would divide the property or that would be done by the executor, or, we suppose, by agreement of the heirs. We think it's not more complicated than that.
But a division made by testamentary provisions does not mean that the lots created thereby can be developed. The court in Telford also stated: "[W]e emphasize that our holding is not to be understood as intimating that the parcels resulting from the division are exempt from any other land use regulations." Id. at 837. See also, Dykstra v. Skagit County, 97 Wn. App. 670, 679 (1999) ("Nothing in the statute suggests the legislature intended to exempt lots created by testamentary devise from the other land use regulations of the County.").
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Request for information on other cities that allow vacation rentals, how they regulate them, and their successes and problems.
Reviewed: 05/14
The following are provisions from Washington cities:
- Friday Harbor Municipal Code Sec. 17.08.620 (Definitions), "Transient accommodations," and Sec. 17.32.020(D), Commercial zone, Permitted uses (in Title 17)
- Long Beach Vacation Rental Fact Sheet
- Westport Municipal Code Ch. 17.22, Vacation Rental Dwellings
- Port Townsend Municipal Code §17.08.060, R through V definitions, "Transient accommodation," and §17.16.020 (Scroll to Table 17.16.020), Residential Zoning Districts - Permitted, Conditional and Prohibited Uses
- Ocean Shores Municipal Code §17.50.055, Transient rentals, and §17.04.567(Definition - transient rental)
- Winthrop Municipal Code §17.08.010, Zoning Definitions - "Tourist accommodations," and §17.20.035, Tourist/residential district
- Roslyn Municipal Code §18.140.040,Vacation rentals (of accessory dwelling units)
- Leavenworth, Start a Business - See section on "Overnight or Vacation Rentals."
Also, Cle Elum allows bed and breakfast guesthouses as a conditional use in single-family residential districts and as a permitted use in multifamily zones (see Cle Elum Zoning Code, Title 17). Uniontown allows guesthouses as accessory uses in residential zones.
Chelan has a Tourist Accommodations District that is intended for areas near or adjacent to Lake Chelan which are uniquely suited for motels, hotels, lodges, and similar uses in keeping with the importance of the recreation industry to the city. See Chelan Municipal Code Ch. 17.48 - Zone TA - Tourist Accommodations District.
Here are a couple of county examples:
- San Juan County Code §18.40.270, Vacation (short-term) rentals of residences or accessory dwelling units (ADUs), §18.20.220 "V" ("Vacation rental" definition), and §18.30.030, Table 3.1 (See footnote 9 re: vacation rental of single family dwelling or accessory dwelling)
- Jefferson County Code §18.10.200, definition - "Transient residence or transient ADU," and §18.20.210(3), Hospitality Establishments - Transient Residence or Transient Guest House.
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May cities and counties provide additional land supply in an urban growth area (UGA) beyond what is needed to accommodate the 20-year growth projection?
Reviewed: 02/14
Yes. RCW 36.70A.110(2) states that the UGA determination "may include a reasonable land market supply factor" beyond the area that is sufficient to accommodate projected growth for the 20-year planning period. RCW 36.70A.110 and WAC 365-196-310 provide some guidance for the designation, sizing, and location of UGAs, but neither the Growth Management Act (GMA) nor the administrative rules define "land market factor."
In Petree et al v. Whatcom County (WWGMHB Case. No. 08-2-0021c, FDO (10/13/2008)), the Western Washington Growth Management Hearings Board describes the use of a reasonable land market supply factor to account for the fact that not all buildable land will be developed within the 20-year planning horizon. The WWGMHB held that sizing the UGA in excess of the acreage required to accommodate the urban growth projection based upon any other factor (such as affordability) other than market factor is not authorized by the GMA.
In North Clover Creek v. Pierce County (CPSGMHB Case No. 10-3-0003c, FDO (8/2/2010)), the Central Puget Sound Growth Management Hearings Board discussed decisions about whether land that has "better characteristics for a desired economic purpose" can be added to a UGA that is already oversized and noted that in each of the past cases that addressed this issue, the anti-sprawl/UGA sizing requirements of the GMA trump the economic development goals of the local jurisdiction.
See also Streicher v. Island County (WWGMHB Case No. 08-2-0015, FDO, at 6-15 (9/29/ 2008) regarding the land capacity analysis for the sizing of a UGA and locational criteria.
The Department of Commerce's Urban Growth Area Guidebook (11/2012), provides very helpful guidance for updating UGAs, including issues related to sizing and servicing the UGAs and summaries of findings from a number of hearings board and court cases that clarify the analysis needed to justify land area, market factors for land availability, and related issues.
There appears to be no single right answer regarding UGA size and the size of a market factor, since growth pressures and the quality of land use data will vary from place to place. The answer may be to set a boundary that can be expanded and to monitor supply closely.
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Is a short plat approved by the county in February 2006 in an area that was later annexed into the city still vested to county standards?
Reviewed: 01/14
First, we note that vested rights survive annexation. Schneider Homes v. City of Kent, 87 Wn. App. 774, 781 (1997), review denied, 134 Wn.2d 1021 (1998). RCW 58.17.170(3)(a), however, limits vested rights that apply to subdivisions, and it provides in part:
Except as provided by (b) of this subsection [not applicable here], a subdivision shall be governed by the terms of approval of the final plat, and the statutes, ordinances, and regulations in effect at the time of approval under RCW 58.17.150 (1) and (3) for a period of seven years after final plat approval if the date of final plat approval is on or before December 31, 2014 . . . .
But the vesting limitations in RCW 58.17.170 do not apply to short plats. In Noble Manor v. Pierce County, 133 Wn.2d 269, 281-82 (1997), the state supreme court concluded:
RCW 58.17.170(7) was enacted in 1969 and it gave rights to a developer to use a subdivision lot in accord with the terms of approval of the final plat and the laws in effect on the date of final plat approval (not the date of subdivision application) for a period of five years from the date of approval. This section of the statute applies only to formal subdivisions and not to short subdivisions . . .
The county also argues that short subdivisions, which involve a simpler application process, should not enjoy longer vested rights than long subdivisions which involve a more complex approval process. This is a matter for the Legislature to decide. The legislature did not divest a short plat's vested rights after five years as it had previously done with formal subdivisions. It may be that since short plats involve only small development of a few lots that the divesting provision was deemed unnecessary because of the relatively minor impact such developments would have. It is within the power of the Legislature to pass legislation which divests a short plat's vested right after some reasonable amount of time. However, such a statute has not been enacted, and we decline to do so by statutory construction when the "divesting" statute applies only to formal subdivisions. See RCW 58.17.170.
(Our emphasis.)
So, approved short plats are vested indefinitely. Thus, county standards that applied to the short plat in question that was approved by the county in 2006 would still apply.
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What is the legal framework related to establishing affordable housing inclusionary requirements for designated districts of the city? Is this allowed under Washington law?
Reviewed: 01/14
RCW 36.70A.540 provides authority for GMA cities and counties toestablish mandatory requirements for the inclusion of affordable housing under certain circumstances. See also WAC 365-196-870(2). That statute allows a GMA city or county to require a minimum number of affordable housing units that must be provided by all residential developments in areas where the city or county decides to increase residential capacity (in other words, in areas it decides to upzone). Before establishing such a requirement, the city or county must determine that the zone change would further local growth management and housing policies. So, mandatory affordable housing requirements may be tied to a zone change that increases the residential development capacity of an area.
Prior to the enactment of this statute, there existed legal uncertainty as to the authority of cities and counties to require affordable housing. A primary legal concern was whether mandatory affordable housing programs would violate RCW 82.02.020. The legislation that enacted RCW 36.70A.540 also amended RCW 82.02.020 to provide that "Nothing in this section limits the authority of counties, cities, or towns to implement programs consistent with RCW 36.70A.540, nor to enforce agreements made pursuant to such programs." Clearly, then, a mandatory affordable housing program that is not compliant with RCW 36.70A.540 would be legally questionable because of RCW 82.02.020. Here is a good background paper on this issue - The Ins and the Outs: A Policy Guide to Inclusionary and Bonus Housing Programs in Washington, The Housing Partnership, August 2007.
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Does a developer have a vested right to a connection fee at a certain level?
Reviewed: 01/14
No. In Lincoln Shiloh Assoc., Ltd. v. Mukilteo Water District, 45 Wn. App. 123 (1986), the court of appeals refused to find a vested right to be charged only the fees for water connection in effect on the date of a building permit application. The court stated that the vesting rule applied to zoning regulations, not to fees, and found the building permit cases not controlling. So, if a city raises utility connection fees after a building permit has been applied for, the owner will have to pay the connection fees in effect at the time of the of the actual connection.
Note also that vested rights also do not apply to impact fees. Pavlina v. City of Vancouver, 122 Wn. App. 520, 529-30 (2004); New Castle Invs. v. City of LaCenter, 98 Wn. App. 224 (1999), review denied, 140 Wn.2d 1019 (2000).
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Would a land use application submitted just prior to the adoption of a traffic impact fee ordinance vest to the current no-fee regulations or would such fees apply regardless of when a completed land use application was submitted?
Reviewed: 01/14
An applicant does not vest to traffic or transportation impact fees, as the applicant would with respect to the land use regulations in effect at the time of submittal of a complete land use application. As summarized well in Pavlina v. City of Vancouver, 122 Wn. App. 520, 529-30 (2004), the court stated:
Pavlina argues that the superior court erroneously applied New Castle [New Castle Invs. v. City of LaCenter, 98 Wn. App. 224 (1999), review denied, 140 Wn.2d 1019 (2000)] in deciding this case. He asserts that New Castle does not apply to this case because there was no preliminary approval in New Castle like in the present case. We disagree.
Pavlina appears to argue that he has vested rights and thus the City cannot impose impact fees. But as we noted in New Castle, an impact fee is not a land use ordinance that vests with the application. New Castle, 98 Wn. App. at 232-33.
In New Castle, we held that TIFs [traffic impact fees] do not affect any physical aspects of development or the types of uses allowed. New Castle, 98 Wn. App. at 237. If the fees did, a TIF would be subject to the vested rights doctrine. New Castle, 98 Wn. App. at 237. We further noted that a TIF is a fee charged on new development. New Castle, 98 Wn. App. at 232. Since traffic impact fees do not limit land use, the City can impose them on a development at the building permit application stage.
Pavlina attempts to distinguish New Castle by contending that unlike in New Castle, he had obtained preliminary approval of his development. But we addressed this issue, noting:
Thus, the fee calculated by LaCenter at the time of preliminary plat approval would bear little relationship to the actual impact of growth at the time the permit is issued.
… If the fee were frozen, then new growth could take place without the developer paying its fair share for improving public facilities.
New Castle, 98 Wn. App. at 237. RCW 82.02.050 clearly intended for developers to pay for their share of system improvements. In order to accomplish this goal, impact fees must be imposed at the time of building permit application. It was irrelevant in New Castle that the developer had previously obtained preliminary plat approval and it is irrelevant here.
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What is the legal nature of a dedicated right-of-way in a subdivision?
Reviewed: 01/14
The general rule is as expressed in the court decisions below. And, it is reflected in the street vacation statutes, which assume this general rule. See RCW 35.79.040 ("If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners, one-half to each."); RCW 35.79.030 (vacation ordinance may provide that abutting property owners compensate the city for the vacation).
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Christian v. Purdy, 60 Wn. App. 798, 801 (1991): "In Washington, the public has only an easement of use in a public street or highway, and the underlying fee rests in the owners of abutting property."
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The general rule is that upon vacation of a street, the public easement is extinguished and the abutting property owners regain unencumbered title to the center of the street. RCW 35.79.040. This rule is based on the presumption that the abutters or their predecessors, prior to dedicating the land for street purposes, originally owned the underlying fee to the center of the street. 2 W. Elliott, The Law of Roads and Streets § 1191 (4th ed. rev. 1926). The general rule, however, is subject to control by the particular circumstances of the case when one abutting owner is shown to have had no fee interest in the street and another the entire fee therein. In that instance, the abutter that had no underlying fee interest does not take to the center of the street upon its vacation.
Since Burmeister v. Howard, 1 Wash. Terr. 207 (1867), this court has not departed from the rule established in that case, that the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement. Puget Sound Alumni of Kappa Sigma, Inc., v. Seattle, 70 Wn.2d 222, 422 P.2d 799 (1967). This rule was applied specifically to a street dedicated to the public through the recording of a plat in Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362 (1902). Therefore, the only property right which either the city of Seattle, or King County ever acquired in the tract of land in controversy, was an easement for passage and use for street purposes.
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Nystrand v. O'Malley, 60 Wn.2d 792, 795 (1962): "The law in this state is well settled that the fee to the street rests in the owner of the abutting property."
Nevertheless, there may be cases where the underlying fee title to property has been conveyed in conjunction with a dedication of right-of-way, and we are aware that some cities, when they condemn property for a right-of-way, actually purchase the fee title.
See also, What is the Nature of a Public Right-of-Way?, MRSC Insight, 01/02/2014.
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Whether the county can allow for deferral of installation of required improvements in a short plat and approve a short plat where only one of the proposed lots has adequate provisions for water, sewer/septic, etc.?
Reviewed: 01/14
The provision in RCW 58.17.110 (which applies to short plats via RCW 58.17.060) that requires counties to make findings that adequate provisions are made in the plat for, among other things, water and septic/sewer is mandatory ("A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for . . . "). However, RCW 58.17.130 requires that cities and counties allow for acceptance of a bond "in lieu of the completion of the actual construction of any required improvements prior to the approval of a final plat . . . providing for and securing to the municipality the actual construction and installation of such improvements within a period specified by the city, town, or county legislative body and expressed in the bonds." Although RCW 58.17.130 applies only to subdivisions, and not to short subdivisions, the county probably has the authority to provide in its short plat regulations for acceptance of a bond as provided in that statute. See Pacific County v. Sherwood Pacific, Inc., 17 Wn. App. 790, 795 (1977), review denied, 89 Wn.2d 1013 (1978) (County had authority to require performance bonds for road construction in subdivision before the enactment of this statute).
So, if the county authorized in its short subdivision requirements the acceptance of a bond in lieu of completion of improvements, deferring the actual construction and installation of such improvements for a specified period of time, the county could approve a short plat where only one of the proposed lots has adequate provisions for water, sewer/septic, etc., if the developer would provide such a bond. In the absence of such a provision in its short subdivision code, the county would not, in our opinion, have the authority to accept such a bond to defer installation of such improvements in a short plat.
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Are there any laws or policies that relate to disclosure of potential conflicts of interest for planning commission members? If there is a disclosure process, how should that be done in order to ensure fairness? Do other jurisdictions have set procedures regarding what a commissioner does if it is discovered they have a conflict?
Reviewed: 01/14
There are laws related to conflicts of interest for planning commission members. For example, RCW 35A.63.020 addresses the issue and indicates what process is required:
If any person or persons on a planning agency concludes that he or she has a conflict of interest or an appearance of fairness problem with respect to a matter pending before the agency so that he or she cannot discharge his or her duties on such an agency, he or she shall disqualify himself or herself from participating in the deliberations and the decision-making process with respect to the matter. If this occurs, the appointing authority that appoints such a person may appoint a person to serve as an alternate on the agency to serve in his or her stead in regard to such a matter.
Statutory conflict of interest prohibitions are contained in chapter 42.23 RCW, but those are primarily aimed at contractual arrangements. However, one statute in that chapter, RCW 42.23.070, contains some general ethical prohibitions that apply to planning commission members, as well as other municipal officials. Common law conflict of interest issues can be implicated where a planning commission member votes on a matter that would specifically benefit himself/herself financially, or or that would pose a financial detriment to that member. For example, a commissioner should not participate and vote in a matter such as a site-specific rezone when he or she owns property next door that, where the value of that property will be affected by the rezone. That type of situation also implicates the appearance of fairness doctrine discussed below.
Note also, based on Hayden v. Port Townsend, 28 Wn. App. 192 (1981), that a commissioner should not, in his or her capacity as a private citizen, act as an advocate for a particular development proposal before the council or the planning commission. In Hayden, the court stated that, in situations in which the member is directly interested in the matter, he/she should not only not participate in the decision-making process but also should not in any way participate in the hearing process. The court noted:
We are also mindful of the argument that the rule we pronounce will limit the freedom of action of persons who serve on boards or commissions that make quasi-judicial determinations. Judges and other persons acting in judicial roles, of course, have long been so limited. See CJC 2 and 3, and the Preamble to the Code of Judicial Conduct. As the Supreme Court stated in Save a Valuable Environment v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978), the doctrine prevents the presentation of views by public officials acting even in their private capacity in order to advance the goal of assuring public confidence in the fairness of the quasi-judicial decision-making process. Any limitations on the actions of public officials are voluntarily undertaken when the particular official assumes a position of public trust.
Id. at 197-98.
RCW 35A.63.020 and the Hayden decision make clear that if a commissioner is faced with a situation involving a conflict of interest or an appearance of fairness problem regarding a matter pending before the commission such that he or she cannot discharge his or her duties on the commission, that commissioner is required to disqualify himself or herself from participating in the deliberations and the decision-making process regarding the matter. I recommend that a commissioner who has such a conflict of interest or appearance of fairness problem leave the room when the matter is being considered by the commission and not participate in any way in communications or in the decision-making process regarding the matter.
A key issue that can arise in such situations involves the distinction between legislative and quasi-judicial matters. Although many, if not most, matters faced by planning commissions are legislative in nature, some types of planning commission proceedings are regarded as quasi-judicial. Appearance of fairness issues can arise with respect to quasi-judicial matters.
The appearance of fairness doctrine does not apply to legislative actions. For example, the adoption (or update) of a new comprehensive plan for the city is a legislative action and so the appearance of fairness doctrine does not directly apply to this situation.
RCW 42.36.010 defines quasi-judicial actions, for example, in a manner that would include site specific rezones and exclude comprehensive plan amendments. Washington courts and growth management hearings boards have found that comprehensive plan amendments are legislative actions, while site-specific rezones are decided through a quasi-judicial process. Preliminary subdivision plats and conditional approvals are also quasi-judicial actions. RCW 42.36.010 states:
Application of the appearance of fairness doctrine to local land use decisions shall be limited to the quasi-judicial actions of local decision-making bodies as defined in this section. Quasi-judicial actions of local decision-making bodies are those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding. Quasi-judicial actions do not include the legislative actions adopting, amending, or revising comprehensive, community, or neighborhood plans or other land use planning documents or the adoption of area-wide zoning ordinances or the adoption of a zoning amendment that is of area-wide significance.
Regarding what other cities are doing, we found a few examples of provisions that specifically address conflict of interest/appearance of fairness situations:
• City of Port Townsend Council Rules of Procedure, SECTION 4.2.8 Conflicts of Interest:
If any members of an Advisory Board conclude that they have a conflict of interest or an appearance of fairness problem with respect to a matter pending before the Advisory Board so that they cannot discharge their duties on such an Advisory Board, they shall disqualify themselves from participating in the deliberations and the decision-making process with respect to the matter.
• Edgewood Municipal Code, Chapter 2.30, Planning Commission:
. . .
G. If participation in any decision by any member of the commission presents a conflict of interest or creates an appearance of fairness problem, that member shall recuse himself from deliberations or voting as to the issue. Members of the planning commission shall fully comply with Chapter 42.23 RCW, Codes of Ethics for Municipal Officers, Chapter 42.36 RCW, Appearance of Fairness, and such other rules and regulations as may be adopted from time to time by the city council regulating the conduct of any person holding appointive office within the city. (Ord. 03-207 § 1; Ord. 00-157 § 1; Ord. 99-138 § 2).
Our MRSC Index "Planning commission bylaws, rules of procedure" webpage also links to several examples of procedures from cities and most of these include reference to conflict of interest procedures. Our Planning Commission webpage includes other examples of procedures as well.
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Request for information on what other jurisdictions do to buffer the impacts between commercial and residential zones.
Reviewed: 01/14
This is in response to your request for information on how other jurisdictions buffer impacts between commercial and residential zones. The following are examples of transitional zones from Washington cities:
- Bellevue Land Use Code Part 20.25B - Transition Area Design District
- Ellensburg Municipal Code Ch. 13.18 - Residential Office Zone
- Kent Municipal Code §15.08.210 - Transition Area Combining District
- La Conner Municipal Code Ch. 15.36 - Transitional Commercial Zone
- Redmond Zoning Code, Ch.21.50 – Transition Overlay Areas
- Tacoma Municipal Code §13.06.200.B.1 Transitional District
- West Richland Municipal Code Ch. 17.75 - Transition Regulations
For additional examples, see the MRSC web page on Mixed Use. Also, most local landscaping ordinances require buffers around certain commercial and industrial uses and buffers between uses, especially commercial and industrial uses adjacent to residential uses.
Other Resources:
- Mixed-use Development in the Twin Cities: Issues and Best Practices (ee specifically p 22 re: signage, trash, ventilation)
- Mixed Use Design Manual, Colorado Springs (p.70, transition tools, p.74, operational compatibility, p. 78-79, lighting, p. 80-81, signage).
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Is an Optional Municipal Code city allowed to adopt an ordinance authorizing all plat approvals (preliminary, final, short) to be decided by a hearing examiner, rather than by the city council?
Reviewed: 01/14
It is our opinion that the authority to decide preliminary plats - but not final plats or short plats - may be delegated to a hearing examiner.
First, we note that the city council should not be deciding short plats in any event; decisions on short plats should be made administratively. RCW 58.17.060(1) states in relevant part:
The legislative body of a city, town, or county shall adopt regulations and procedures, and appoint administrative personnel for the summary approval of short plats and short subdivisions or alteration or vacation thereof.
(Emphasis added.)
Second, that authority to decide short plats should not be given to a hearing examiner. There is no public hearing that is required or should be held for a short plat. Also, note that RCW 58.17.330, which authorizes the use of a hearing examiner in plat decisions, states in relevant part:
As an alternative to those provisions of this chapter requiring a planning commission to hear and issue recommendations for plat approval, the county or city legislative body may adopt a hearing examiner system and shall specify by ordinance the legal effect of the decisions made by the examiner.
(Emphasis added.)
RCW 58.17.060 does not - nor does any other provision in Chapter 58.17 RCW - require a planning commission "to hear and issue recommendations for" short plats; as quoted above, RCW 58.17.060 provides that administrative personnel (planning staff) are to make decisions on short plats.
As to preliminary plats, the authority to make decisions - either final ones (final as to the preliminary plat) or ones that function as recommendations to the city council - can be delegated to a hearing examiner. Given the language of RCW 58.17.330 quoted above and the fact that RCW 58.17.100 provides that the planning commission is to "review all preliminary plats and make recommendations thereon to the city . . . legislative body," the council can authorize a hearing examiner to make preliminary plat decisions. As provided in RCW 58.17.330(1), those decisions can function in any of three ways:
(a) The decision may be given the effect of a recommendation to the legislative body;
(b) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative body; or
(c) The decision may be given the effect of a final decision of the legislative body.
As to final plats, that decision must be made by the city council. RCW 58.17.100 states clearly that "sole authority to approve final plats . . . shall reside in the legislative bodies." Even without that language in RCW 58.17.100, I don't think that the council could delegate authority to decide final plats to a hearing examiner, because the planning commission is not given authority "to hear and issue recommendations for" final plat approval and so RCW 58.17.330 does not allow the hearing examiner to be delegated the authority to make decisions on final plats.
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How does Initiative 1183, relating to liquor privatization, affect local zoning authority?
Reviewed: 01/14
The following sections from the text of Initiative 1183 relate to the zoning of liquor premiss:
- Section 101(2)(i): Ensure that local communities have input before a liquor license can be issued to a local retailer or distributor and maintain all local zoning requirements and authority related to the location of liquor stores; [Bold emphasis added]
- Section103(3)(a): Except as otherwise provided in subsection (c) of this section, the board may issue spirits retail licenses only for premises comprising at least ten thousand square feet of fully enclosed retail space within a single structure, including storerooms and other interior auxiliary areas but excluding covered or fenced exterior areas, whether or not attached to the structure, and only to applicants that the board determines will maintain systems for inventory management, employee training, employee supervision, and physical security of the product substantially as effective as those of stores currently operated by the board with respect to preventing sales to or pilferage by underage or inebriated persons. [Bold emphasis added]
- Section103(3)(b) excerpt: - However, existing grocery premises licensed to sell beer and/or wine are deemed to be premises "now licensed" under RCW 66.24.010(9)(a) for the purpose of processing applications for spirits retail licenses.
- Section 103(3)(c): The board may not deny a spirits retail license to an otherwise qualified contract liquor store at its contract location or to the holder of former state liquor store operating rights sold at auction under section 102 of this act on the grounds of location, nature, or size of the premises to be licensed. The board shall not deny a spirits retail license to applicants that are not contract liquor stores or operating rights holders on the grounds of the size of the premises to be licensed, if such applicant is otherwise qualified and the board determines that: (i) There is no retail spirits license holder in the trade area that the applicant proposes to serve . . .
- Section 104(7): Licensees holding a grocery store license must maintain a minimum three thousand dollar inventory of food products for human consumption, not including pop, beer, strong beer, or wine.
MRSC legal consultants have advised that there is no preemption of local zoning regulation of liquor premises based on the language of the initiative. According to Section 103(3)(b) of the initiative, grocery stores that currently sell wine and beer would be deemed to be premises "now licensed." These stores would be grandfathered under local zoning. A city or county could not likely prevent an existing store of 10,000 square feet or larger that sells beer and wine from obtaining a license to sell liquor. Stand-alone liquor stores are also permitted, subject to criteria in Initiative 1183. There is no maximum size for a liquor store. We believe that a local government could require a conditional or special use permit and restrict the size of stand-alone liquor stores in certain zoning districts. MRSC believes that a moratorium, if limited in scope to apply to applications for new liquor stores (not including any existing state stores or grocery premises that currently have licenses to sell beer and/or wine), would be acceptable. A local jurisdiction would, of course, have to have some type of application required for a liquor store for a moratorium to be effective.
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Must a code city have a citizens' advisory planning commission or may it use city staff?
Reviewed: 01/14
As a code city, you do not need to have a formal citizen's planning commission. The definition of what constitutes a planning agency in the state laws applying to code cities specifically provides the option of having a city department or staff perform this function. RCW 35A.63.010(8) defines "planning agency" to mean "any person, body, or organization designated by the legislative body to perform a planning function or portion thereof for a municipality, and includes, without limitation, any commission, committee, department, or board together with its staff members, employees, agents, and consultants."
So, code cities have considerable flexibility in establishing a planning agency to perform planning functions, which may or may not include a traditional citizens' planning commission.
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Is it legal for cities to incorporate an annual construction cost index adjustment into their impact fee calculations?
Reviewed: 01/14
Several cities provide for an annual cost adjustment to their impact fees by using a construction cost index. For example, Issaquah Municipal Code Sec. 3.72.070(B) provides:
Park impact fee rates shall be updated annually using the following procedures:
1. The Director shall use the National Construction Cost Index to calculate annual inflation adjustments in the impact fee rates. The impact fees shall not be adjusted for inflation should the index remain unchanged.
2. The indexed impact fee rates shall be calculated in January, or as soon thereafter as the latest index information is published by National Construction Cost Index, and shall become effective immediately thereafter. A copy of the indexed impact fee rates shall be provided to the City Council but the indexed rates shall become effective without further Council review.
3. The City Council shall review the park impact fee rates prior to December 31, 2010, and every 2 years thereafter, to determine whether or not a new park impact fee rate study should be prepared. If this review does not occur, the City shall continue to collect impact fees at the rate in effect, but shall not index the park impact fees for subsequent years until the required review by the City Council occurs.
We have not previously advised on the legality of such provisions. Such index-based adjustments are neither specifically allowed nor specifically prohibited by the statutes dealing with impact fees; see RCW 82.02.050, and RCW 82.02.060. In our opinion, such adjustments appear reasonable, avoiding the need for the city council to make yearly amendments to account for increased costs, and are legally acceptable.
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Do you have any examples of ordinances that allow extensions of project deadlines (plats) due to consideration of the economic conditions?
Reviewed: 01/14
The following counties and cities have extended approval periods for certain building and land use permits in response to the current economic downturn:
Bothell Ordinance No. 2029, adopted 2009
Gig Harbor Ordinance No. 1167, adopted 08/2009
King County Ordinance No. 16515, adopted 05/2009
Kirkland, Application for Land Use Permit Extension, and Ordinance No. 4219, adopted 12/2009
Redmond Ordinance No. 2468, adopted 06/02/2009
SeaTac Resolution 09-010, adopted 07/14/2009
Snohomish County Ordinance No. 09-018, adopted 06/03/2009 and related press release, 02/19/2009.
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May a city planning under Growth Management Act (GMA) extend sewer service to a property that is contiguous to the city limits but not with in its urban growth area (UGA)?
Reviewed: 01/14
A city may not, except in very limited circumstances, extend sewer service to a property not within its UGA, even if that property is contiguous to the city limits. RCW 36.70A.110(4) generally prohibits the extension of urban type services such as sewer lines outside a UGA to "rural areas":
In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development.
Growth management hearings board decisions have not allowed sewer hook-up of properties outside a UGA, even though the connection is to an existing line on or adjacent to the property. A hook-up under those circumstances would be equivalent to extending or expanding urban governmental services in rural areas in violation of RCW 36.70A.110(4).
In Director of CTED v. Snohomish County, CPSGMHB No. 03-3-0020, Final Decision and Order, May 5, 2004, the hearings board addressed the argument that hook-up to an existing line by a church when the line is on or adjacent to the church property violates RCW 36.70A.110(4):
(T)he County argues that for a school or a church in the rural area to "hook-up" to a sewer line, the sewer line must be on, or adjacent to, the school or church property. Therefore, the County concludes, no expansion or extension of the sewer is necessary.
The board rejected that argument, interpreting a hook-up under those circumstances as an extension or expansion:
(I)t logically follows that where churches or schools in the rural area are not presently connected to a sewer system, the sewer system would have to be extended, or expanded, to accomplish the connection or hook-up. Therefore, the Board concludes, that the provisions of Ordinance No. 03-104, on their face, permit the extension or expansion of sewers (urban governmental services) into the rural area without such extension being necessary to protect the basic health and safety or environment. The Ordinance creates a new exception (proximity to sewers) beyond the one limited exception in RCW 36.70A.110(4) identified by the Supreme Court in Cooper Point [148 Wn.2d 1 (2002)]. Consequently, Ordinance No. 03-104 does not comply with, and in fact contradicts, the clear statutory direction of RCW 36.70A.110(4).
(Footnote omitted.)
So, it follows that the board would also reject that argument when the church property, or any property, is outside but borders the UGA boundary and the sewer line is on that boundary; it would still be considered to be an expansion or extension to allow hook-up of that property to the sewer line.
Note that the city or county could allow extension, under RCW 36.70A.110(4), "in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development." In Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 14-15 (2002), the state supreme court suggested that one circumstance where it may be necessary to extend such services beyond a UGA into rural areas is where homes served by septic systems are currently experiencing waste discharge problems that can be addressed only by sewer lines. However, "the majority reads the term 'necessary' to mean extending a sewer line, i.e., extension of a government service, would be permitted only if it were absolutely required, i.e., the only possible means of addressing a particular threat."
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May contract rezones still be used as a tool, or have they been replaced by development agreements?
Reviewed: 01/14
The term "contract zoning" or “contract rezone” refers to an agreement between a developer and a local government where the local government grants a rezone in exchange for a developer meeting certain conditions related to a development. Local governments in Washington have used such "contract rezones," sometimes called “concomitant agreements,” for many years as a tool to ensure that a rezoned property is developed as proposed and agreed upon at the time of approval.
However, neither contract rezones nor concomitant agreements were specifically authorized in the planning statutes, though, in 1995, the state legislature authorized "development agreements" in
RCW 36.70B.170 – .210 (
Ch. 36.70B RCW). These statutes place some restrictions and requirements on local government use of development agreements, and they apply to any new agreements or contracts related to rezones. We recommend that local jurisdictions use the term "development agreement" instead of "contract agreement" or "concomitant agreement" since state law now refers to these as "development agreements." Such agreements (including those that apply to rezones) are now clearly authorized when executed consistent with
RCW 36.70B.170 - .210.
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Can transportation impact fees be used to fund the transportation impact fee study update for the same area?
Reviewed: 01/14
Transportation impact fee money cannot be used for a study update. RCW 82.02.050(4) states that impact fees may be "spent only for the public facilities as defined in RCW 82.02.090 which are addressed by a capital facilities plan element . . . ." The definition of "public facilities" in RCW 82.02.090(7) is:
"Public facilities" means the following capital facilities owned or operated by government entities: (a) Public streets and roads; (b) publicly owned parks, open space, and recreation facilities; (c) school facilities; and (d) fire protection facilities.
A fee study is not a public facility.
[Note: HB 1080 amended the definition of “public facilities” by eliminating the words “in jurisdictions that are not part of a fire district.” As a result, effective June 10, 2010, cities and counties may collect impact fees for all fire protection facilities that are included in the jurisdiction’s capital facilities plan , whether or not the jurisdiction is located in a fire district.]
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If a property owner owns contiguous lots and wants to short plat each one (with total number of lots being greater than four), may the city or county require full subdivision process?
Reviewed: 01/14
There is nothing in the statutes governing subdivisions that specifically addresses this situation. However, the city or county may adopt language in its subdivision regulations that requires short plat or subdivision applications on contiguous properties in common ownership to be treated as one subdivision application, so, where two short plat applications are submitted, if the total number of lots in both applications exceeds the city or county threshold for a subdivision, they are processed as a subdivision. This approach has been upheld in case law. For example, in Gerard v. San Juan County, 43 Wn. App. 54 (1986), a married couple attempted to subdivide their land through a series of conveyances from the marital community to the husband or wife separately and to a third individual. San Juan County had adopted an ordinance requiring contiguous parcels under single ownership to be considered a single parcel for purposes of applying the subdivision laws. The court of appeals found that the couple had specifically structured the conveyances to take advantage of exemptions under the short plat and subdivision ordinances:
The purpose for adopting exemptions to platting requirements is to create certain flexibility for landowners in specific situations, while at the same time still safeguarding environmental interests. The purpose of the carefully constructed transactions carried out by the Gerards was solely to avoid the costs and requirements of platting, thereby circumventing the purpose of the platting ordinance. We hold that the Gerards' transactions constituted the creation of a long plat without complying with the statutory requirements and was therefore done illegally.
See also, Concerned Land Owners v. King County, 64 Wn. App. 768 (1992) (the court distinguished Gerard because it found that the property owners already individually owned the parcels they sought to short plat and because there was no finding or implication that they specifically structured their property ownership after their divorce to take advantage of the short plat ordinance).
Here are examples of codes with language that some jurisdictions have adopted to deal with this type of situation:
Unless there is language like the above in the city or county code, it may be difficult to legally force an applicant for two short plats on contiguous parcels to submit one subdivision application.
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Does state law allow a city or county to delegate authority for approval of preliminary plats to the planning commission?
Reviewed: 01/14
No. The controlling statute, RCW 58.17.100, was amended in 1995, but that amendment did not change the planning commission's advisory role with regard to preliminary plats. The city council or board of county commissioners may delegate authority to hold a public hearing to the planning commission, but the commission still may only make recommendations on preliminary plat approval.
However, the 1995 amendments to the state law did change how the council or board may respond to a planning commission recommendation, if it disagrees with the recommendation. If the planning commission has held a public hearing, the council or board no longer must conduct a public hearing to take an action inconsistent with the planning commission recommendation. After considering the matter at a public meeting, the council or board may adopt its own recommendations and approve or disapprove the preliminary plat. Prior to the 1995 amendment, the council or board could only make a change in the recommendation of the planning commission after a full public hearing.
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Must a city or county establish an administrative procedure under state law to review and approve short plat applications?
Reviewed: 01/14
Yes. The legal staff at Municipal Research & Services Center has taken the position that the state subdivision law requires that review and approval of short plats be performed by city or county administrative personnel rather than by an advisory body such as the planning commission or by a policy-making/legislative body such as the city council or board of county commissioners.
It is a mandatory requirement in RCW 58.17.060 that the legislative body of every city and county adopt regulations and procedures for the approval of short plats and subdivisions. This statute provides in part:
The legislative body of a city, town, or county shall adopt regulations and procedures, and appoint administrative personnel for the summary approval of short plats and short subdivisions or alteration or vacation thereof.
The language in this statute clearly indicates that the process of short plat approval is an administrative one that is to be performed by administrative personnel. The processing time restrictions for a short plat (30 days) are consequently shorter than that for a preliminary plat (90 days). RCW 58.17.140.
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May a preliminary plat be denied on the basis of community opposition?
Reviewed: 01/14
The Washington courts have emphasized on a number of occasions that a zoning or land use permits cannot be denied on the basis of community opposition. For example, in Maranatha Mining v. Pierce County, 59 Wn. App. 795, 805 (1990), the state court of appeals stated with respect to a county council decision:
It is apparent that the Council gave little consideration to the merits of Maranatha's application, and that it disregarded the facts set forth in the examiner's findings. The Council seems to have heard clearly the citizen complaints and the comments of one of its own members while disregarding the record. We cannot escape the conclusion, in view of the evidence in support of Maranatha's application, that the Council based its decision on community displeasure and not on reasons backed by policies and standards as the law requires.
In Kiewit Constr. Group v. Clark County, 83 Wn. App. 133 (1996), the court rejected a challenge to the county requirement of a supplemental EIS for a conditional use permit for an asphalt plant that included the claim that the decision to require the SEIS was based on community displeasure. The court noted that, although the county did receive a number of negative comments on the proposed asphalt plant, the record did not demonstrate that its decision on these responses rather than on the facts and applicable standards. The court observed: “For one thing, if the Board had been basing its decision solely on community displeasure, it would have denied the CUP outright instead of simply remanding for a supplemental EIS.”
In Sunderland Family Treatment Services v. Pasco, 127 Wn.2d 782, 797 (1995), the state supreme court, in remanding the city's denial of a special use permit for a group home crisis residential center for abused and neglected teenagers in a single-family residential zoning district, stated:
In fact, the City's denial appears to rest upon neighborhood opposition. At least one planning commissioner and one city council member so stated. While the opposition of the community may be given substantial weight, it cannot alone justify a local land use decision.
This principle also applies in the context of a preliminary plat decision. See Kenart & Assocs. v. Skagit County, 37 Wn. App. 295, 303, review denied, 101 Wn.2d 1021 (1984).
Statutory and case law is clear that a preliminary plat may be approved or denied only on the basis of competent evidence relating to the factors identified in RCW 58.17.110. This statute provides in relevant part:
A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interest will be served by the platting of such subdivision and dedication. If it finds that the proposed subdivision and dedication make such appropriate provisions and that the public use and interest will be served, then the legislative body shall approve the proposed subdivision and dedication.
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Are subdivisions considered development for shoreline purposes?
Reviewed: 01/14
Subdivisions and short plats are not defined as development under RCW 90.58.030(3)(d) & (e), so a short plat wouldn't require a substantial development permit. The authors of the "Shoreline, Coastal Zone & Watershed Management" chapter of Real Property Deskbook note that the shoreline permit requirement does not seem applicable to governmental actions merely prerequisite to shoreline development, such as platting or rezoning. They cite the Narrowsview Association v. Tacoma, 84 Wn.2d 416 (1974), case in which an act of rezoning that "does not involve any physical alteration of the land or irrevocable commitment to allow such a physical alteration" did not require a shoreline permit. Even so, any approved subdivision should be consistent with shoreline environment and shoreline use regulations adopted by a city or county, even if a permit is not required.
If the plat is conditioned on certain physical improvements being made which meet the definition of substantial development, a permit would be required for those improvements. Also, as noted in the Narrowsview case, the Washington Supreme Court has specifically upheld the right of a local jurisdiction to regulate nonsubstantial development through conditional use permits issued pursuant to a Shoreline Management Master Program.
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Can a county require a property owner to obtain subdivision (or short subdivision) approval to lease one acre of a 100-acre parcel for a cellular tower site?
Reviewed: 01/14
No. RCW 58.17.020(6) defines " short subdivision" as "the division or redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership" (emphasis added). Despite this definition, the county may not require a subdivision plat (or short plat) when property is leased for cell tower use since the subdivision statute was amended in 2002. In 2002, the following exemption was added to the subdivision/short subdivision requirements:
The provisions of this chapter shall not apply to: ...
(8) A division for the purpose of leasing land for facilities providing personal wireless services while used for that purpose. "Personal wireless services" means any federally licensed personal wireless service. "Facilities" means unstaffed facilities that are used for the transmission or reception, or both, of wireless communication services including, but not necessarily limited to, antenna arrays, transmission cables, equipment shelters, and support structures.
RCW 58.17.040(8).
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Request for information about what a preliminary plat is and its relationship to final plat.
Reviewed: 01/14
Preliminary Plat
The preliminary plat is much more than a concept plan; it is the basis for approval or disapproval of the proposed subdivision under state and local requirements. The preliminary plat approval is the "project permit" that shows the location and extent of proposed development, site conditions, subdivision lines, and proposed improvements, and is the subject of review under the State Environmental Policy Act (SEPA) and local development regulations. Preliminary plat review is a quasi-judicial process – a public hearing must be held and decisions are made on the record. It provides the opportunity for public input and to impose new conditions/restrictions. The city or county legislative body must then make written findings that adequate provisions have been made regarding matters identified in RCW 58.17.110, including open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, and playgrounds (written findings). Preliminary plat approval provides permission to construct certain improvements prior to final plat approval, following approval of detailed engineering and design drawings.
Final Plat
The final plat is the final drawing of the subdivision and dedication prepared for filing for record with the county auditor. Final plat approval probably is best characterized as an administrative decision - it is in the nature of a ministerial, nondiscretionary decision. If the final plat conforms to all of the conditions required by preliminary plat approval, then the board or council is required to approve the final plat.
The final plat is a check to determine that the terms and requirements of preliminary plat approval have been met and that required improvements have been constructed or bonded/guaranteed. The final plat is the means by which performance of preliminary plat requirements is enforced. It shows exact lot lines, streets, easements, and other elements required as conditions of preliminary plat approval. The final plat contains signatures of owners and of city or county officials attesting that various provisions of the preliminary plat have been fulfilled and comply with local regulations. The final plat secures the dedication of roads, parks, and other public spaces within the plat to the public.
The final plat must not differ substantially from the preliminary plat. If there are substantial changes, an amended or new preliminary plat application should be submitted. Since preliminary plats require a substantial investment of time and money on the part of the developer, many communities provide the opportunity for (or require) a concept plan review at the beginning of the process to flag potential problems or to design improvements before it becomes costly to make changes.
More Resources
Review the statutory definitions in RCW 58.17.020.
It may be helpful to look at examples of preliminary and final plat requirements in subdivision codes from other communities. Many examples are posted on the MRSC Subdivisions Webpage, or within municipal codes. The Subdivisions Webpage also provides an overview of subdivisions, and preliminary and final plat processes.
In addition, the following document provides a useful description of preliminary and final plat processes: "A Short Course on Local Planning," ver. 5.1, July 2009, Planning Association of Washington and State of Washington Department of Commerce (see "Chapter 5. Development Tools and Techniques," Part B – Platting and Permits: The Development Process (pp. 14-32)).
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Request for information on transfer of development rights (TDR)
Reviewed: 01/14
TDR involves the removal of the right to develop from land in one area or zoning district and the transfer of that right to land in another area or district, where development is permitted. This is somewhat similar to a density transfer (which is usually limited to a transfer within the project site or to a specific adjacent site), although typically TDR involves transferring development rights to other sites (receiving sites), which are sometimes distant from the sending site. TDR programs are commonly used to preserve agricultural lands but may also apply to open space preservation, critical areas protection, historic sites, and affordable housing. King County, Snohomish County, Thurston County, Whatcom County, Bainbridge Island, and Redmond have TDR programs.
See MRSC's Web page on Transfer of Development Rights. This page contains links to Washington county and city programs and code examples, out-of-state examples, and general articles on TDR.
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What zoning applies when one lot is located in two zoning districts?
Reviewed: 01/14
The general rule is that zoning need not follow boundary lines. Consequently, when a lot is split by a zoning district, part of the lot is subject to the rules that apply to the one district and the other part is subject to the rules that apply to the other district. However, zoning ordinances may, and some do, specifically address the split lot situation, such as providing for some form of administrative special exception procedure or by establishing some flexibility in district boundary lines.
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May local zoning regulations cover amateur radio facilities?
Reviewed: 01/14
The Federal Communications Commission (FCC) has adopted rules which impose a limited federal preemption on local zoning regulations affecting amateur radio antennas (97.15(b) CFR). "Amateur Radio Preemption, 101 FCC 2nd 952 (1985)," also known as PRB-1 (1985), is a "memorandum opinion and order" issued by the FCC, which requires that local regulations that involve placement, screening, or height of antennas based on health, safety or aesthetic considerations must reasonably accommodate amateur communications, and represent the minimum practicable regulation to accomplish the local government's legitimate purpose.
This preemption is explicitly recognized in state statute (RCW 35.21.315 for non-code cities, RCW 35A.21.260 for code cities, and RCW 36.32.600 for counties).
Basically, under the FCC rules, it appears that cities may not adopt local zoning regulations which would have the effect of precluding amateur radio communications. Local regulations must reflect an effort to reasonably accommodate amateur radio facilities and must constitute the minimum practicable regulation to accomplish the local authority's legitimate regulatory purpose.
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May city require a conditional use permit for a group home for persons considered disabled or handicapped?
Reviewed: 01/14
No, this is not permitted under the "Washington Housing Policy Act" (WHPA), RCW 35A.63.240.
This statute provides:
No city may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals. As used in this section, "handicaps" are as defined in the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3602).
Accordingly, a development regulation that requires a conditional use permit for a group home for handicapped or disabled individuals but not for single-family residences violates this statute, which is stricter than comparable provisions of the federal Fair Housing Act. In Sunderland Family Treatment Services v Pasco, 107 Wn. App. 109 (2001), the state court of appeals struck down Pasco's requirement that "group care facilities" obtain a special use permit:
[W]e conclude that the City violated the WHPA by defining "family" in such a way as to impose additional burdens on residential care facilities for the handicapped. The City violated the WHPA by adopting a regulatory scheme that permitted a "family" to obtain immediate occupancy of a residential structure but required "group care facilities" to obtain a SUP before occupying a similar residential structure. But for the City's definition of family, the residents of the proposed facility would have been entitled to immediate occupancy of the home. Instead, the residents of the proposed facility were denied access based on their handicap and familial status.
See also: Regulating Group Homes in the Twenty First Century: The Limits of Municipal Authority, by Ted Gathe, 04/2013 (Reprinted with permission of the author).
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Request for information on density bonuses.
Reviewed: 01/14
Density bonuses are used for many purposes, including the provision of affordable housing units (probably the most common), protection of critical areas, preservation of open space, provision of transit-oriented housing, inclusion of public art, preservation of historical and cultural resources, and energy conservation. Density bonuses are built into planned unit development, planned residential development, and cluster subdivision provisions.
Here are links to some of the documents available on the Web:
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Request for information on regulation/prohibition of "formula" retail or restaurant uses.
Reviewed: 01/14
We are aware of two cities in the state - Port Townsend and Bainbridge Island - that prohibit certain "formula" businesses except in a certain zone or zones. Other cities in the state regulate design features of such establishments but do not prohibit them in zones where other retail/restaurant uses are permitted.
Bainbridge Island limits "formula take-out food restaurants" to two districts and imposes regulations regarding their design: See Bainbridge Municipal Code, Sec. 18.36.030(92) - definition of "formula take-out restaurant;" and Sec. 18.09.030(D)(2) - Formula take-out restaurants.
Port Townsend has enacted regulations governing "formula retail and restaurant establishments." See Ch.17.54 of the Port Townsend Municipal Code. These establishments are permitted only in one commercial zone. See Port Townsend Municipal Code Sec.17.20.020
See also Formula Business Restrictions, Institute for Self Reliance, for a discussion of regulation around the country.
The legality of such restrictions has not been challenged in this state, so we cannot say with any certainty that such restrictions would be found permissible by the courts. However, we note that a California Appeals Court upheld the city of Coronado's formula retail ordinance. If a city provides an adequate justification for restrictions, and allows them in some areas of the city, they would likely be upheld by courts in this state. Limiting them to a certain number may be more legally questionable.
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What is spot zoning (particularly in the case of a rezone) and is it always illegal?
Reviewed: 01/14
Spot zoning is basically disfavored in our state. The basic definition of spot zoning in Washington was outlined in Narrowsview Preservation Association v. City of Tacoma, 84 Wn.2d 416 (1974), in which the court said:
We have recently stated that illegal spot zoning is arbitrary and unreasonable zoning action by which a smaller area is singled out of a larger area or district and specially zoned for use classification totally different from and inconsistent with the classification of the surrounding land, not in accordance with a comprehensive plan
The reasons for invalidating a rezone as an illegal spot zone usually include one or more of the following: (1) the rezone primarily serves a private interest, (2) the rezone is inconsistent with a comprehensive plan or the surrounding territory, or (3) the rezone constitutes arbitrary and capricious action. Each situation must be determined on its own facts and it is not always easy to determine conclusively whether a rezone would constitute an illegal spot zone.
According to Richard Settle in Washington Land Use and Environmental Law and Practice, the issue with spot zoning is not the differential regulation of adjacent land but the lack of public interest justification for such discrimination. Where differential zoning merely accommodates some private interest and bears no rational relationship to promoting legitimate public interest, it is "arbitrary and capricious" and hence "spot zoning." The term "spot zoning" is not really a distinct legal doctrine. It is really a "misleading term for the application of the constitutional requirements of equal protection and substantive due process." See Settle at section 2.11(c). Courts will overturn a rezone if it grants a "discriminatory benefit to one or a group of owners to the detriment of their neighbors or the community at large without adequate public advantage or justification. . . ." Bassani v. County Commissioners, 70 Wn. App. 389 (1993).
The following are some links to information on spot zoning and contract rezones/concomitant agreements:
-
- "Spot Zoning," excerpt from "A Short Course on Local Planning," ver. 5.1, Planning Association of Washington and Washington State Department of Commerce, July 2009 (see Chapter 5(A)(2)(b)(7))
- "Removing Spot Zoning From the Fabric of Zoning Practice" (Includes description of spot zoning law in other states in addition to a summary of Washington law), Public Policy Brief, Gary D. Taylor, J.D., Department of Agricultural Economics, Michigan State University Extension, January 2004
- Spot zoning definition from Appendix A: Glossary of Terms and Phrases (At end of publication), from Beginner's Guide to Land Use Law , Pace University School of Law, Land Use Center .
Some jurisdictions that have rezone criteria that discourage spot zoning:
Mercer Island Unified Land Development Code, §19.15.020(G)(2)
2. Reclassification of Property (Rezones).
- a. The proposed reclassification is consistent with the policies and provisions of the Mercer Island comprehensive plan;
- b. The proposed reclassification is consistent with the purpose of the Mercer Island development code as set forth in MICC 19.01.010;
- c. The proposed reclassification is an extension of an existing zone, or a logical transition between zones;
- d. The proposed reclassification does not constitute a "spot" zone;
- e. The proposed reclassification is compatible with surrounding zones and land uses; and
- f. The proposed reclassification does not adversely affect public health, safety and welfare.
Port Angeles Municipal Code, §17.96.100:
17.96.100 Amendments.
- A. In determining if an amendment to these regulations is needed, the City Council shall give due consideration to the proper relationship of such amendment to the Comprehensive Plan and the entire Zoning Regulations; it being the intent to retain the integrity and validity of the zones herein described and to avoid any isolated spot zoning changes in the Zoning Map.
- B. Any amendments adopted by the City Council may be modified from the form in which they were advertised within the limits necessary to relate properly such amendment or amendments to the Zoning Regulations. Final action on such modifications shall be subject to review and report of the Planning Commission prior to final passage by the City Council.
- C. No application for a change of zoning of any lot, parcel or portion thereof shall be considered by the City Council within one year of the final action of the Council upon a prior application covering any of the same described land. This provision, however, shall not impair the right of the Council to propose by its own action any amendment or change in the boundaries of any of the zones in these regulations. (Ord. 3272, 2/17/2007; Ord. 2861 Sec. 1 (part), 3/17/1995; Ord. 2668 Sec. 12 (part), 1/17/1992; Ord. 1709 Sec. 1 (part), 12/22/1970)
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Does a rezone affect an existing water right?
Reviewed: 01/14
The short answer is no, not directly, but this depends on the situation. A water right is only for the use specified on the water right certificate, and, to retain the water right, it must be "perfected" or used. After five consecutive years of non-use, a water right is considered abandoned. Assuming that the property owners are using the water for the specified use on the certificate and plan to continue to do so, a rezone will not affect the water right. However, at such time that the owner plans to change the use of the property, a new water right certificate will be needed. A water right certificate is attached to the property and runs with the land unless withheld in a contract of sale. In some cases, a person may believe that he or she has a water right certificate but may have a domestic exemption instead.
We recommend contacting the Department of Ecology's regional office if there is any question about whether a valid water right is in effect. Water rights contacts at the Department of Ecology are listed on the department's Water Rights Home page (scroll to bottom of page). This Web page is the best source for general information about water rights in Washington State.
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May a city or county enact a moratorium as an emergency measure?
Reviewed: 01/14
Yes. Many land use moratoriums are adopted as emergency measures in order to preserve the status quo while new plans or regulations are considered and prepared. The authority for enactment of moratoriums by a code city is at RCW 35A.63.220 and RCW 36.70A.390 (Other cites/towns: RCW 35.63.200; Counties: RCW 36.70.795). Although these statutes do not specify the need for declaring an "emergency," the reasons for imposing a moratorium typically involve an "emergency" justifying its adoption without notice or prior hearing. In re Recall of Ackerson, 143 Wn.2d 366, 375 (2001). ("Moratoriums may be initiated upon the incorporation of a new city or may be adopted as emergency zoning ordinances without prior notice or hearing."); Matson v. Clark County Bd. of Comm'rs, 79 Wn. App. 641, 644 (1995) ("Recognizing the emergency, temporary, and expedient nature of such regulations, the courts have tended to be more deferential than usual to the local legislative body.") So, while an emergency determination is not strictly required to enact a moratorium, it is usually necessitated by the circumstances and the reasons for imposing the moratorium and the consequent need to adopt it and have it go into effect immediately.
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May a city or county enact a zoning regulation that prohibits wireless telecommunications antennas from being placed in residential zones?
Reviewed: 01/14
If there are adequate nearby commercial or industrial zoned areas where wireless telecommunications facilities are permitted to be placed, and if placement of antennas in these non-residential zones would enable telecommunications providers to install a system that provides adequate service to the entire jurisdiction, then prohibiting placement in residential zones would not violate the Federal Telecommunications Act of 1996. Each jurisdiction will need to assess their particular zoning configuration and topography. Expert technical assistance may be needed for a jurisdiction to evaluate whether wireless facilities will need to be permitted in all zones of the city.
For more telecommunications information such as sample ordinances, leases, franchise agreements, FCC documents, and articles, see MRSC's Telecommunications Web page.
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Has the state preempted zoning for adult homes located within cities?
Reviewed: 01/14
The state has preempted this area to some extent. The definition of adult family homes is contained in
Ch. 70.128 RCW. An adult family home is defined in state law as the regular family abode of a person who is providing personal care and board to more than one but not more than six adults who are not related by blood or marriage to the person providing the service (see
RCW 70.128.010(1)). The statute states that an adult family home shall be considered a residential use of property for zoning purposes. It requires that adult family homes be a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single-family dwellings. If a city has a facility which constitutes an adult family home as defined in the state statute, then the state requires that it be allowed as a permitted use in all areas zoned for residential or commercial purposes (
RCW 70.128.140).
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May the county prohibit how long in advance of an election that political signs may be posted?
Reviewed: 12/13
No. In the case of Collier v. Tacoma, 121 Wn.2d 737 (1993), the state supreme court held that the provision in the Tacoma Municipal Code that limited political signs to 60 days prior to an election was unconstitutional. So it is not legally possible to limit the time in advance of an election that political signs can be posted in the places where political signs are allowed.
The court allowed a 10-day post-election removal requirement. The rights of political expression do not weigh as heavily on post-election restrictions and the local government's interest in aesthetics and traffic safety outweigh the individual rights. So a county likely could enact a valid regulation requiring removal of political signs ten days after the election.
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Can cities and counties prohibit the placement of signs on wireless antenna facilities?
Reviewed: 12/13
Yes. Under the federal Telecommunications Act of 1996, cities and counties retain their general zoning and land use authority in regard to wireless antenna facilities. They are merely prohibited from taking any action that has the effect of denying a wireless provider the ability to offer services. They can prohibit the placement of signs on an antenna facility just as they can regulate the placement of signs on the sides or roofs of buildings.
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Whether a dedication of a right-of-way through a lot, by itself, effects a division of land that is subject to short plat requirements.
Reviewed: 12/13
There is generally no division of land effected by a mere dedication of right-of-way, so neither the subdivision nor short subdivision process is invoked by a dedication. As a general rule, dedication of a right-of-way involves conveyance of an easement for public travel and not the conveyance of fee title to property. So, a lot that is split by a right-of-way remains one lot. Nevertheless, there may be cases where the underlying fee title to property has been conveyed in conjunction with a dedication of right-of-way. Only in those cases would a division of land occur so as to subject the transaction to compliance with state subdivision and local short subdivision requirements.
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May a city reduce impact fees below the amount needed to cover projected transportation system needs for new development?
Reviewed: 12/13
Yes. First of all, a city may not require new development to pay for correction of existing deficiencies. A city may only charge new development for the portion of facilities that are needed as a result of new development.
A city is not required to impose impact fees and the council may choose to set impact fees below the level necessary to fully cover transportation system improvements for new development. A city may want to do so because of affordable housing concerns or a variety of other public purposes. A city must still show what other sources of public funds will be used to cover the gap between the amount funded by impact fees and the total amount needed.
A city may not, in fact, finance these public facilities solely with impact fees. RCW 82.02.050(a)(2) states that ". . . the financing for system improvements to serve new development must provide for a balance between impact fees and other sources and cannot rely solely on impact fees."
If a city wishes to reduce projected costs of facilities to serve new development (making it easier to reduce impact fees) the city may want to reconsider plan assumptions and level of service standards. If projected costs are based on "gold" level standards, lower standards may be an acceptable tradeoff for lower costs.
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May transportation impact fees be used to fund pedestrian and bicycle facilities?
Reviewed: 12/13
The Growth Management Act states that impact fees can be used for public facilities, including public streets and roads (
RCW 82.02.050(4) and
RCW 82.02.090(7)). MRSC has stated that it is likely that "streets and roads" could be interpreted to include wide shoulders, bicycle lanes, sidewalks and other physical improvements to the roadway that may facilitate pedestrian and bicycle circulation. It may be more of a stretch to use impact fees to fund bike paths or pedestrian ways that are not within the street right-of-way. We feel that the case could possibly be made, particularly since transportation planning is moving toward non-structural solutions. A local jurisdiction would certainly need to make a strong case that the facilities serve transportation rather than primarily recreational needs. Also, impact fees may only be imposed for "system improvements that are reasonably related to the new development" (
RCW 82.02.050(4)). The use of transportation impact fees for pedestrian and bicycle facilities remains a gray area that could be contested in court. (Note that a GMA city or county is also authorized to adopt impact fees to fund publicly owned parks, open space and recreation facilities. Again, the improvements and impact fees charged must be reasonably related to the demand created by the new development).
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May impact fees be used to fund a community center or a library?
Reviewed: 12/13
A community center would fall within the definition of "recreation facilities" in
RCW 82.02.090(7) and would thus be a public facility for which impact fees could be collected and spent. Impact fees are collected only for new development that takes place following the adoption of the impact fee ordinance, and impact fees may be collected only for public facilities included in the jurisdiction's capital facilities element (
RCW 82.02.050(4)).
As a practical matter, it may be difficult to collect a substantial amount of impact fees for the community center. This is because impact fees may only be imposed for "system improvements that are reasonably related to the new development" (RCW 82.02.050(3)(a)). Further, the impact fees "shall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development" (RCW 82.02.050(3)(b)), and "shall be used for system improvements that will reasonably benefit the new development" (RCW 82.02.050(3)(c)). Since a community center is for the benefit of the entire community, one development's impact fee contribution to that facility will be but a small part of the cost of the facility.
GMA impact fees cannot be used to fund a new library, since library facilities are not authorized as a proper expenditure for impact fees under RCW 82.02.090(7). Impact fees are specifically authorized only for: (1) public streets and roads; (2) publicly owned parks, open space, and recreation facilities; (3) school facilities; and (4) fire protection facilities.
For more information, see MRSC's Impact Fees Web page.
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Request for examples of studies on the economic impacts of Wal-Marts on a community.
Reviewed: 12/13
See the following information on economic impacts of large retail establishments:
- A Downward Push: The Impact of Wal-Mart Stores on Retail Wages and Benefits - Executive Summary, Arindrajit Dube, T. William Lester, and Barry Eidlin, U. Cal. Berkeley Labor Center, 2007 - Employees at Wal-Mart earn lower average wages and benefits than workers employed by many other large retailers. This study finds that Wal-Mart store openings lead to the replacement of better paying jobs with jobs that pay less and drive wages down for workers in competing industry segments
- The Effects of Wal-Mart on Local Labor Markets, David Neumark (University of California-Irvine), Junfu Zhang (Clark University), and Stephen Ciccarella (Cornell University), IZA Discussion Paper No. 2545, 01/2007 - Analyzing national data, the study found that the opening of a Wal-Mart store reduces county-level retail employment by 150 jobs. Because Wal-Mart stores employ an average of 360 workers, this suggests that for every new retail job created by Wal-Mart, 1.4 jobs are lost as existing businesses downsize or close. The study also found that the arrival of a Wal-Mart store reduces total county-wide retail payroll by an average of about $1.2 million
- The Impact of big-box retailers on communities, jobs, crime, and more: Research Round-up, Leighton Walter Kille, Journalist Resource, Harvard School of Business - Shorenstein Center on Media, Politics, and Public Policy 04/09/2014 - Abstracts and links to a number of recent studies of various impacts of big box stores on local communities and economies
- Living Wage Policies and Big-box Retail: How a Higher Wage Standard Would Impact Wal-Mart Workers and Shoppers, UC Berkeley Center for Labor Research and Education, 04/2011 - This study finds that raising employees’ pay to a minimum of $12 an hour would lift many out of poverty, reduce their reliance on public assistance, and cost the average consumer, at most, $12.49 a year
- Measuring the Economic and Sociological Impact of the Mega-Retail Discount Chains on Small Enterprise in Urban, Suburban and Rural Communities, Edward B. Shils, Wharton Entrepreneurial Center of The Wharton School, University of Pennsylvania, /1997 - Although somewhat dated, this was a very comprehensive, multi-year study that found that mega-retail discount chains had significant impacts on the traditional retailer contributing to job loss and even blighted conditions in some formerly healthy connercial centers. See particularly chapters 1 and 3 that focus on impacts.
- Mitigating Impacts of Big Box Retail on Local Communities, Ohio State University, Special Issue on Rural Development Policy, Journal of Analysis and Policy, Volume 37(1), 2007 - Brief article discusses who benefits and who pays with the arrival large retail discount stores, and also focuses on a strategy of requiring such large retail discounters to provide employer-paid benefits to reduce impact on publicly-provided services
We also have examples of design guidelines for large scale retail establishments.
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Can a planned unit development create a legal lot of record?
Reviewed: 12/13
No. A planned unit development (PUD) cannot, by itself, create legal lots of record. Legal lots of record can be created only through the subdivision process, with some exceptions identified in
RCW 58.17.040 (which do not include a PUD), or, as an alternative to the subdivision process, through binding site plan procedures that can be adopted by cities and counties pursuant to
RCW 58.17.035, but only in three circumstances (which do not include a PUD). See
Strauss v. City of Sedro-Woolley, 88 Wn. App. 376 (1997), which discusses the binding site plan procedure as an alternative to the subdivision process. So, basically, there is nothing in state law that provides that legal lots of record can be created through a PUD, by itself.
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Must a city or county provide verbatim minutes of a public hearing held before the planning commission if the council or board of county commissioners is reviewing the recommendation of the commission?
Reviewed: 12/13
There is no requirement in state law that verbatim minutes of a public hearing held before the planning commission must be provided to the city council or board of county commissioners when they are reviewing the recommendation of the planning commission.
However, we do recommend that public hearings held by the planning commission on quasi-judicial matters be tape recorded. This is because
RCW 36.70C.110, regarding judicial review of a quasi-judicial land use decision, requires that the record to be reviewed by the court "include a verbatim transcript of any hearings held on the matter." So if there is a judicial appeal, the city or county will need to provide a verbatim transcript of the hearing for the court to review. Since you don't know in advance which decisions will result in a legal challenge, it is best to tape record all quasi-judicial hearings.
This does not mean that a verbatim transcript needs to be provided for all hearings before the planning commission. This is not required in state law, although a local rule could require that.
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Request for information about requirements for membership on a planning commission in a code city and for notice to fill a planning commission vacancy.
Reviewed: 12/13
RCW 35A.63.020 provides the authority for a code city to:
create a planning agency and provide for its membership, organization, and expenses. The planning agency shall serve in an advisory capacity to the chief administrative officer or the legislative body, or both, as may be provided by ordinance and shall have such other powers and duties as shall be provided by ordinance.
According to RCW 35A.63.010(8):
’Planning agency’ means any person, body, or organization designated by the legislative body to perform a planning function or portion thereof for a municipality, and includes, without limitation, any commission, committee, department, or board together with its staff members, employees, agents, and consultants.
As indicated in the above statutes, local governments may adopt an ordinance that specifies requirements and qualifications for membership on the planning commission. However, there are no specific statutory requirements that must be met to be on a planning commission, such as a minimum age or residency in the city.
Perhaps the most common requirement that cities have imposed for planning commission membership is that commissioners must reside within city limits. Some cities allow one or several members of the planning commission to live outside of the city, but within the urban growth area, or some other type of service area. However, many cities do not address residency at all.
Here are a few examples of qualifications/requirements for planning commissioners from other code cities:
There are no specific statutory requirements regarding notice to fill a planning commission vacancy, nor are there any particular requirements as to procedures to fill a planning commission vacancy. We would suggest that your notice contain general information about the position including major requirements/qualifications, meeting times, and/or time requirements, where to get and send an application, submittal deadline, and where to get more information. See the examples below:
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Is the city legally bound to provide public services and facilities to developments within the UGA on demand?
Reviewed: 12/13
Although the GMA contemplates that a city is the appropriate provider of utility services within its UGA, the city is not obligated by the GMA to so provide at any particular time. A city likely wants to control how and when urban growth occurs within the UGA. So, providing or not providing urban services is a basic tool of this control. There is no language in the GMA that takes this tool away from cities or that obligates cities to provide urban services to an area on demand simply because it is within the UGA.
Nevertheless, a city may be obligated to provide utility (water or sewer) service outside its boundaries but within the UGA based on rules developed by case law. The general rule is that, in the absence of contract, express or implied, a municipality cannot be compelled to supply water outside its boundaries.
Brookens v. Yakima, 15 Wn. App. 464, 466 (1976). So, if there is an express contract to provide utility service, a city is contractually obligated to provide that service. An implied contract can arise "where a municipality holds itself out as a public utility willing to supply all those who request service in a general area." Brookens, 15 Wn. App. at 466-67. A city may also have a duty to supply water or sewer service "where a city is the exclusive supplier of sewer or water service in a region extending beyond the borders of the city."
Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381-82 (1993).
But that duty, if it arises, is not absolute; a city may deny water or sewer services if it lacks the needed capacity.
Yakima Fire Prot. Dist., 122 Wn.2d at 382. Also, the duty to provide the service is "subject to such reasonable conditions, if any, as the law may allow." Id. An example of such a reasonable condition, as was presented in the Yakima case, is that the property owner agrees to annexation.
A case where a Washington appellate court found a duty to supply utility service within the entire UGA was in
Nolte v. City of Olympia, 96 Wn. App. 944 (1999), where the city admitted that it was the sole provider of water and sewer service to the UGA.
So, the bottom line answer is "it depends." If the city's adopted water and sewer service area plans are the same as their UGA boundaries, it may be a factor in favor of there being a duty to supply those services. If the city has plan policies for the promotion of contiguous and orderly development and provision of urban services to such development, the city will have better grounds for controlling the timing of utility extension. In particular, if the city has adopted capital facilities element/capital improvements plan and/or phasing policies that specify when and where urban services will be available within the UGA, it will be in a better position to apply reasonable conditions on development.
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What are the notice requirements for amendment of a comprehensive plan?
Reviewed: 12/13
For code city comprehensive plan amendments, the statutes (RCW 35A.63.073 and RCW 35A.63.070) require that the planning commission hold at least one public hearing. Notice is to be given as provided by ordinance and published at least ten days prior to the hearing. If continued hearings are held, no additional notices need be published. For non-code cities and towns, the statutes (RCW 35.63.105 and RCW 35.63.100) require that the planning commission hold at least one public hearing. For counties, the statutes (RCW 36.70.410, RCW 36.70.380, and RCW 36.70.390) require that the planning commission hold at least one public hearing. Notice is to be published at least ten days prior to the hearing.
The GMA does not add any specific notice and hearing requirements to the existing requirements with respect to adoption of comprehensive plans and plan amendments.
However, RCW 36.70A.140 requires that cities and counties planning under the act
establish and broadly disseminate to the public a public participation program identifying procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments.
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What is the effect of a hearing examiner's decision in a code city?
Reviewed: 12/13
The statute on hearing examiners was amended in 1995.
RCW 35A.63.170 now provides three possible effects of a decision made by a hearing examiner: (1) a recommendation to the city council; (2) an administrative decision appealable within a specified time period to the city council; (3) except for rezones, a final decision of the legislative body. In its ordinance creating the position of hearing examiner, a city should specify which of these options will be utilized.
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Does recent legislation, enacted in 2004 and 2008 - to prohibit cities and counties from treating manufactured homes differently than site-built single-family homes, mean that cities and counties have to allow single-wide manufactured homes?
Reviewed: 12/13
SB 6593 (Chapter 256, Laws of 2004), which became effective on July 1, 2005, requires that, to protect "consumers' choices in housing," cities and counties must regulate manufactured homes built to federal manufactured housing construction standards no differently than they regulate other types of homes.
Nevertheless, cities and counties may under this legislation require that that these manufactured homes: (1) be new manufactured homes (but see below); (2) be set on a permanent foundation; (3) comply with any local design standards that may apply to all other homes in the neighborhood in which the manufactured home is to be located; (4) are thermally equivalent to the state energy code; and/or (5) otherwise meet requirements for a "designated manufactured home" in RCW 35.63.160 (For code cities see RCW 35A.63.145). (Because a "designated manufactured home" under that definition is one that includes at least two sections, cities and counties may still regulate "single-wide" manufactured homes differently than other types of homes.)
However, this legislation was amended by the 2008 legislature to provide that cities and counties may not prohibit a mobile or manufactured home from locating in an existing mobile home park or manufactured housing community based on the age or size of that mobile or manufactured home. See RCW 35.21.684; RCW 35A.21.312. Local jurisdictions are still permitted to place age and design criteria on manufactured housing that is sited outside of mobile and manufactured housing communities.
Prior to SB 6593, Washington cities and counties seemingly had the authority to regulate the location of manufactured homes through zoning and even to ban them entirely. While local governments were (and still are) "preempted" by federal law (the National Manufactured Housing Construction and Safety Standards Act of 1974) from enacting construction, safety, and energy standards that are stricter than those established by federal regulations adopted by the Department of Housing and Urban Development (HUD), HUD had acknowledged that the federal legislation did not limit the authority of local governments to regulate the location of manufactured housing, as long as they do not do so based on compliance or noncompliance with stricter construction, safety, and energy standards. And, in Washington Manufactured Housing Assn. v. Public Utility District No. 3, 124 Wn. 2d 381, 385 (1994), the state supreme court, in dicta, noted that it is "clear that zoning laws that ban manufactured housing or limit them to certain areas are not preempted if they are silent as to construction or safety standards." SB 6593, however, eliminated any previous ability of local governments in the state to restrict where manufactured housing - at least certain manufactured housing - could locate.
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Must modular homes be allowed in areas of a city that are zoned for residential development in the same manner as manufactured and mobile homes?
Reviewed: 12/13
Yes. The operative provision is
RCW 35A.21.312, which, in relevant part, states:
A code city may not enact any statute or ordinance that has the effect, directly or indirectly, of discriminating against consumers’ choices in the placement or use of a home in such a manner that is not equally applicable to all homes. Homes built to 42 U.S.C. Sec. 5401-5403 standards (as amended in 2000) must be regulated for the purposes of siting in the same manner as site built homes, factory built homes, or homes built to any other state construction or local design standard. However, except as provided in subsection (2) of this section, any code city may require that:
(a) A manufactured home be a new manufactured home;
(b) The manufactured home be set upon a permanent foundation, as specified by the manufacturer, and that the space from the bottom of the home to the ground be enclosed by concrete or an approved concrete product which can be either load bearing or decorative;
(c) The manufactured home comply with all local design standards applicable to all other homes within the neighborhood in which the manufactured home is to be located;
(d) The home is thermally equivalent to the state energy code; and
(e) The manufactured home otherwise meets all other requirements for a designated manufactured home as defined in RCW 35.63.160.
Note that the federal law provisions above referenced (42 U.S.C. Sec. 5401-5403) relate to manufactured homes.
RCW 35A.21.312 and other similar statutes were amended in 2004 to require that cities and counties “regulate manufactured homes built to federal manufactured housing construction standards no differently than they regulate other types of homes.”
Modular homes are defined in RCW 46.04.303 to include “factory-assembled” structures. RCW 46.04.302 defines “mobile home” and “manufactured home.” RCW 35A.21.312 lists “factory-built homes” in the same manner as “site built homes” and other types of homes (including manufactured homes since 2004, as above referenced). RCW 35.63.160 provides additional provisions related to designated manufactured homes and new manufactured homes.
Therefore, with respect to regulating – which would include zoning regulations – placement or use, cities may not discriminate against consumers’ choices in the placement or use of modular homes in a manner that is not equally applicable to manufactured homes, “… site built homes, factory built homes [i.e., modular homes], or homes built to any other state construction or local design standard.”
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Can cities and towns still restrict the placement of manufactured or mobile homes based upon their age and size?
Reviewed: 12/13
SB 5524, adopted by the state legislature in 2008, prohibits cities and towns from restricting the placement of mobile or manufactured home in existing mobile or manufactured home park based on the age or size of that mobile or manufactured home. The relevant language of this legislation is as follows:
A city or town may not adopt an ordinance that has the effect, directly or indirectly, of restricting the location of mobile homes or manufactured homes in mobile home parks or manufactured housing communities, as defined in RCW 59.20.030, which were legally in existence before the effective date of this section, based exclusively on the age or dimensions of the mobile home or manufactured home. This does not preclude a city or town from restricting the location of a mobile home or manufactured home in mobile home parks or manufactured housing communities for any other reason including, but not limited to, failure to comply with fire, safety, or other local ordinances or state laws related to mobile homes and manufactured homes.
The House Bill Report on this bill provides the following explanation:
Current statutes (RCW 25.21.684, 35A.21.312 and 36.01.225), which allow jurisdictions to place age and design criteria on manufactured housing, apply only to housing to be sited in new mobile home parks or manufactured housing communities, or to be sited outside of mobile home parks and manufactured home communities.
(Emphasis in original.)
The Senate Bill Report indicates that this was an affordable housing issue ("Single wide mobile homes are an important source of affordable housing.") SSB 5524 became effective on June 12, 2008.
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Do other cities use fire impact fees for apparatus such as fire engines?
Reviewed: 12/13
Some jurisdictions have included fire engines and major apparatus in their capital facilities plans and define them as capital facilities in their plans or impact fee ordinances. If the city enacts an impact fee ordinance and wishes to define fire engines and other apparatus as capital facilities, then this should be specified in the ordinance establishing the fees and such apparatus should be included in the city’s capital facilities plan as well. The following are links to code provisions addressing this issue:
The following capital facilities plans address fire apparatus:
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May the rate for impact fees authorized by the Growth Management Act (GMA) be equal to the full cost of new facilities needed to serve new growth and development?
Reviewed: 12/13
No. Impact fees cannot be used to cover the full cost of new facilities. The statute authorizing impact fees under GMA is
RCW 82.02.050, which provides as follows:
Counties, cities and towns that are required or choose to plan under RCW 36.70A.040 are authorized to impose impact fees on development activity as part of the financing for public facilities, provided that the financing for system improvements to serve new developments must provide for a balance between impact fees and other sources of public funds and cannot rely solely on impact fees.
So it is clear that a city or county cannot rely solely on the use of impact fees to finance public facilities for new development. There must be a balance between impact fees and other sources of public funds.
RCW 82.02.060 provides that local governments are to adopt a schedule of impact fees for each type of development activity, specifying the amount of the impact fee to be imposed. The schedule is to be based on a formula or other method of calculating impact fees. In determining proportionate share, the formula for calculating impact fees must incorporate a list of factors that are set out in the statute, such as cost of the facility, availability of other public funds, and a list of other factors. The city must be able to demonstrate that the result is based on justifiable criteria.
For more information on this topic, see MRSC's Web page on impact fees.
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What are impact fees?
Reviewed: 12/13
Impact fees are charges assessed against newly-developing property that attempt to recover the cost incurred by a local government in providing the public facilities required to serve the new development. Impact fees are only used to fund facilities, such as roads, schools, and parks, that are directly associated with the new development. They may be used to pay the proportionate share of the cost of public facilities that benefit the new development; however, impact fees cannot be used to correct existing deficiencies in public facilities. In Washington, impact fees are authorized for those jurisdictions planning under the Growth Management Act (RCW 82.02.050 - .100), as part of “voluntary agreements” under RCW 82.02.020, and as mitigation for impacts under the State Environmental Policy Act (SEPA – Ch. 43.21C RCW). GMA impact fees are only authorized for: public streets and roads; publicly owned parks, open space, and recreation facilities; school facilities; and fire protection facilities.
For more information on this topic, see MRSC's Web page on impact fees.
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Is it possible to use impact fees to fund transit improvements?
Reviewed: 12/13
Based on
RCW 82.02.050(4), it is clear that public facilities must be included in a capital facilities plan element of a comprehensive plan before they can be paid for with Growth Management Act impact fees. The Growth Management Act states that impact fees can be used for public facilities, including public streets and roads. Streets and roads can easily be interpreted to include HOV lanes and other physical improvements to the roadway which may facilitate public transit use. It is more of a stretch to cover programs such as van pool, ride-share, other transit facilities, and similar programs. The use of impact fees for these types of transit improvements remains questionable.
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If, under RCW 82.02.060(4), a city adjusts impact fees downward in certain unusual circumstances, must it make up for the adjustment with public funds?
Reviewed: 12/13
The city is not required to make up for, with public funds, an adjustment from the standard impact fee for which the city must allow in order to ensure fairness in the imposition of such fees. Unlike
RCW 82.02.060(2), in which the city provides an exemption for low-income housing or for "other development activity with broad public purposes," the city is not required by
RCW 82.02.060(4) to use public funds to cover the fees that are "lost" by an adjustment.
The same logic does not operate for adjustments as for exemptions. An adjustment to ensure fairness should be made where the impact for a project is, for some documented reason (see RCW 82.02.060(5)), less than it would be for other similar projects and, thus, application of the standard fee would be excessive. For instance, it may be possible to demonstrate that residents living near a rapid transit station will generate less vehicle traffic than the standard development. In theory, the lower impact would require fewer improvements. A city would allow an exemption for low-income housing for public policy reasons and not because the fee would be disproportionate to the impact. Thus, where an exemption is allowed, the impact would not be mitigated unless the fees are made up from some other source (other than the developer).
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What is the effect of impact fees on affordable housing?
Reviewed: 12/13
Although impact fees do not alter total costs, they do affect the distribution of costs, or who pays for the facilities. Each community will need to make a policy decision about whether the cost of new infrastructure is charged directly to the new users or spread, via higher taxes, across the community. Infrastructure costs in areas where there is little current development can be substantial. The developer is likely to pass these costs on to the home buyer. Most local governments levying impact fees do not levy the full cost of new infrastructure. In fact, the Growth Management Act requires that part of the cost of financing infrastructure for new developments should come from other funds.
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What is the effect of impact fees on general business activity?
Reviewed: 12/13
All things being equal, businesses may choose to locate in a community without impact fees in preference to one that has impact fees. However, there are many other factors in a location decision. For instance, some cities attribute their success in attracting major new employers to the quality of services and amenities which they offer, such as an open space system. Some companies choose to locate in an area with these extra amenities in spite of greater incentives, tax breaks, and lower fees offered by competing cities.
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May a city require impact fees for development in the urban growth area?
Reviewed: 12/13
The city does not have authority to require impact fees outside the city limits but within the urban growth area, as it does not have the necessary regulatory and governmental jurisdiction. The GMA, however, does contemplate that regulation within urban growth areas be exercised jointly by the city and county by agreement. In fact, the GMA mandates that the county and the cities within it enact county-wide planning policies which must provide for "policies for joint county and city planning within urban growth areas."
RCW 36.70A.210(3)(f). Thus, any collection and use of impact fees within the urban growth area for city facilities to serve development within the urban growth area can only come about through agreement between the city and the county, unless the developer agrees to such fees as a condition of the city's provision of utilities. These impact fees must be spent for system improvements that "will reasonably benefit" this development within the urban growth area. Furthermore, public facilities addressed by a capital facilities plan element of the city's comprehensive plan should relate to development within the urban growth area, as impact fees may be collected and spent only for such public facilities. Vancouver/Clark County is an example of an area where the city and county have adopted an interlocal agreement for a coordinated impact fee program. (See
Memorandum of Understanding (between Skagit County and the city of Mt. Vernon) Urban Growth Area Zoning and Development Standards, 1997 ( County agrees to administer program for collection of impact fees wihin UGA)
Interlocal Agreement between the City of Monroe and Snohomish County Concerning Annexation and Urban Development within The Monroe Urban Growth Area, 2008 (addresses county collection and transfer of uncommitted proportion of impact fees upon annexation.)
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May communities provide additional land supply beyond that needed to exactly accommodate the 20-year growth projection?
Reviewed: 12/13
Yes. RCW 36.70A.110(2) states that the urban growth area determination "may include a reasonable land market supply factor" beyond the area that is sufficient to accommodate projected growth for the twenty year planning period. RCW 36.70A.110 and WAC 365-196-310 provide some guidance for the designation, sizing and location of UGAs, but neither the Growth Management Act (GMA) nor the administrative rules define "land market factor."
In Petree et al v. Whatcom County, the Western Washington Growth Management Hearings Board describes the use of a reasonable land market supply factor to account for the fact that not all buildable land will be developed within the 20-year planning horizon. The WWGMHB held that sizing the UGA in excess of the acreage required to accommodate the urban growth projection based upon any other factor (such as affordability) other than market factor is not authorized by the GMA (WWGMHB Case. No. 08-2-0021c, FDO (10/13/2008)).
In North Clover Creek v. Pierce County, the Central Puget Sound Growth Management Hearings Board discussed decisions about whether land that has better characteristics for a desired economic purpose can be added to a UGA that is already oversized and noted that in each of the past cases that addressed this issue, the anti-sprawl/UGA sizing requirements of the GMA trump the economic development goals of the local jurisdiction. (CPSGMHB Case No. 10-3-0003c, FDO (8-2-10)).
See also Streicher v. Island County regarding the land capacity analysis for the sizing of a UGA and locational criteria (WWGMHB Case No. 08-2-0015, FDO at 6-15 (Sept. 29, 2008).
The Department of Commerce’s Urban Growth Area Guidebook (2012) provides very helpful guidance for updating UGAs, including issues related to sizing and servicing the UGAs. It includes summaries of findings from a number of hearings board and court cases that clarify analysis needed to justify land area, market factors for land availability, and related issues.
There appears to be no single right answer regarding UGA size and the size of a market factor, since growth pressures and the quality of land use data will vary from place to place. The answer may be to set a boundary that can be expanded and to monitor supply closely.
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What are communities doing to phase growth within urban growth areas?
Reviewed: 12/13
A number of communities are seeking to designate higher and lower priority areas for urban development (growth tiers) generally radiating out from the growth center. Pierce County has designated three tiers (growth phases) within the urban growth area and an urban reserve area. Growth is directed first into the tiers where facilities and services are most readily available (generally located closer to the developed core). Port Townsend, Enumclaw, Tacoma, and Lynnwood also have established growth tiers in their comprehensive plans. Use of tiered urban growth areas or other phasing strategies also can help assure that concurrency requirements don't tend to push development outward into areas where roads and other infrastructure have greater capacity.
Several Washington and Oregon communities have used urban reserve or holding zones to ensure that certain areas do not develop prematurely (before adequate services are available and the land is needed for urban development). The reserve zones are designed to assure that any limited development within reserve areas will not establish patterns that close off future urban development options. These zones are typically found in counties within UGAs (and also outside of UGAs). Clark County, WA and some cities within the county have established urban holding zones within UGAs, applying 10 or 20 acre minimum lot sizes until concurrency requirements are met. The Western Washington Growth Management Hearings Board found the county's use of holding zones to be acceptable.
Communities such as Carlsbad, CA and Montgomery, MD also have a comprehensive and geographically-based approach to adequate public facilities provision. Rather than designate several rings or tiers of development or planning areas, these communities designate a larger number of facility management zones or sub-areas where different policies and restrictions apply depending adequacy of facilities and services within the zones.
A similar focused infrastructure investment approach has been used in Oregon and Clark County, WA. With this approach, local government would provide off-site urban service facilities within the UGAs with the goal of adding fully served land to the urban land supply. All such public investment would be focused in "focused public investment areas" (PIAs), within the UGAs. If a developer wanted to develop outside the PIAs, even though still within the UGAs, the developer would need to provide all facilities at his/her own expense. This approach has successfully worked to focus development in Salem, OR, which employs a similar technique.
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May a city require development in urban growth areas to conform to city standards in exchange for provision of utility services?
Reviewed: 12/13
MRSC is of the opinion that, absent some existing contract to extend utility service to areas within the urban growth area, the city may, as a condition of providing utility service outside its limits, require that development within the area served conform to city land use standards. (Please note that if city standards are less restrictive than county standards, county agreement would be necessary). Note RCW 36.70B.170, which authorizes a city to "enter into a development agreement for real property outside its boundaries as part of . . . a service agreement." Those standards may not be less than the applicable county standards.
In short, the provision of utility services to property outside the city's limits would be contractual, the terms of the contract being the development agreement between the city and the developer. Outside of such a development agreement, there is little the city may do regarding compliance with city standards or the provision of impact fees, absent cooperation and agreement with the county. A city may also enter into an interlocal agreement with a county to apply city zoning and standards outside of the city and within the UGA. Thurston County has such an agreement with several of its cities. See also the MRSC Web pages on Growth Management Interlocal Agreements and Interlocal Agreements for Annexation.
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Does the Growth Management Act (GMA) discourage agricultural land designation within urban areas? May a city designate agricultural lands within its urban growth area?
Reviewed: 12/13
RCW 36.70A.060(4) states that "agricultural land located within urban growth areas (UGAs) shall not be designated by a county or city as ... agricultural land of long-term commercial significance ... unless the city has enacted a program authorizing transfer or purchase of development rights." The purpose of this provision is apparently to hold urban growth area land for urban needs rather than resource production and to avoid spread out patterns that are expensive to serve.
As noted in City of Redmond v. Central Puget Sound Growth Management Hearings Board (136 Wn.2d 38, 1998),
The obvious purpose of the statute requiring the City to establish a program for the transfer or purchase development rights if the land is within the UGA is to provide reimbursement to the owners of land the uses of which become frozen at a low level of intensity as a result of the City's designation. Here, the City made the agricultural designation without having a TDR program in effect, as the statute requires. As a result, the Board properly invalidated the designation. [at 56]
The city also may not restrict open space corridors to agricultural or forest use unless city acquires sufficient interest to prevent development of the lands or to control the resource development of the lands (see RCW 36.70A.160).
It seems likely that the city may allow some types of agricultural uses as permitted uses, among other permitted uses, in its open space zone district, with certain precautions. Although the statutes prohibit designation of agricultural land of long-term commercial significance, we are not aware of any that specifically prohibits an agricultural use as permitted use within an open space zone. In fact, the Stewart v. Washington State Boundary Review Board for King County case (100 Wn. App. 165, 996 P.2d 1087, 2000) notes that “nothing in the GMA prohibits inclusion of agricultural lands in an urban growth area.”
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Must comprehensive plans prepared under GMA provide substantive policy direction for development regulation?
Reviewed: 12/13
Yes. A GMA city must adopt a comprehensive land use plan which states the city's land use policy. Cities are also required to enact development regulations which are "consistent with and implement the comprehensive plan . . . and (cities) shall perform their activities and make capital budget decisions in conformity with their comprehensive plans" (RCW 36.70A.120). The Procedural Criteria for Adopting Plans and Development Regulations (Ch. 365-196 WAC) interpret that "implement" connotes "not only a lack of conflict but sufficient scope to carry out fully the goals, policies, standards and directions contained in the comprehensive plan." The Central Puget Sound Growth Hearings Board (CPSGHB) held in City of Snoqualmie v. King County, CPSGHB Case No. 92-3-0004, FDO, 3/1/93 that county-wide planning policies provide substantive and directive policy to the comprehensive plans of cities and counties "which in turn provide substantive direction to the content of local land use regulations, which govern the exercise of local land use powers, including zoning, permitting and enforcement" (page 17). The Board also noted in the same case that the use of either "should" or "shall" in a GMA policy document must be construed to have directive meaning . . . the difference in meaning between 'shall' and `should' is now one of degree rather than kind" (page 14).
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May a city set level-of-service standards below the level used as a basis for impact fees?
Reviewed: 12/13
Although this issue is not directly addressed by the GMA, there is a strong case against pursuing such a policy. Impact fees are frequently the subject of litigation, and such a policy may be inviting a challenge. By definition, level-of-service standards should define the level of facilities and services that meet a community's needs and are acceptable to a community. "Level-of-service" is defined in
WAC 365-196-210 as "an established minimum capacity of public facilities or services that must be provided per unit of demand or other appropriate measure of need." It would be difficult to justify impact fees that require a developer to pay for more than what a city's standards indicate are needed.
RCW 82.02.050(1)(c) states that it is the legislature's intent "to ensure that impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees." Fees not related to the adopted city standards could be considered arbitrary. A city can still aspire to a higher level of services than its minimum standards would provide, but it is unlikely that a city can require a developer to pay for a level that exceeds its standards.
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Does the Growth Management Act (GMA) require concurrency for sewer and water?
Reviewed: 12/13
The word "concurrency" appears in RCW 36.70A.070 which clearly requires concurrency for arterials and transit. There is no specific requirement that other types of facilities be provided "concurrent" with development elsewhere in GMA. However, the goal statement in RCW 36.70A.020 suggests that adequate public facilities requirements for other types of public facilities and services may be appropriate. Also, RCW 58.17.110 requires that "adequate provision" be made for a long list of public facilities and services including potable water and waste disposal.
A Western Washington Growth Management Hearing Board case that finds that local government must consider what facilities and services (in addition to transportation) are necessary to support development, but also have discretion about what facilities are subject to concurrency Taxpayers for Responsible Government v. City of Oak Harbor, WWGMHB No. 96-2-002). In McVittie v. Snohomish County, the Central Puget Sound Growth Management Hearings Board found that the capital facilities element (CFE)
"must explicitly state which of the listed public facilities are determined to be “necessary to support development” and each of the facilities so designated must have either a “concurrency mechanism” or an “adequacy mechanism” to trigger appropriate reassessment if service falls below the baseline minimum standard.
Transportation facilities are the only facilities required to have a concurrency mechanism, although a local government may choose to adopt a concurrency mechanism for other facilities." (McVittie v. Snohomish County, CPSGMHB Case No. 01-3-0002, FDO, July 25, 2001.)
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Must the city have a separate concurrency ordinance or may it use SEPA and other existing ordinances to implement concurrency?
Reviewed: 12/13
Although RCW 36.70A.070(6)(b) requires local jurisdictions to adopt and enforce concurrency ordinances, the statutes are not specific about the type of ordinance necessary to implement concurrency. Many cities are adopting separate concurrency ordinances to implement their concurrency program, but a few are relying primarily on SEPA.
Whether a local jurisdiction chooses to implement concurrency through its SEPA regulations or another part of its code, the development regulations should include specific concurrency language that prohibits development when level of service standards for transportation facilities cannot be met. The Growth Management Act (GMA) requires that:
Local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a locally owned transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvement or strategies to accommodate the impacts of development are made concurrent with the development. RCW 36.70A.070(6)(b).
In addition, a Western Washington Growth Management Hearings Board case indicates that local jurisdictions should spell out their methodology for assuring concurrency compliance either within their comprehensive plans or development regulations. Taxpayers for Responsible Government v. City of Oak Harbor, WWGMHB No. 92-2-002, Final Decision and Order, July 16, 1996. Referring to Goal 12 of the Growth Management Act (RCW 36.70A.020(12)) the Board stated that:
In order to comply with this portion of the Act, a local government must not only state what it plans to do but also how. This can be done in the context of a comprehensive plan, development regulations or a combination of both. The critical factor involves a specific articulated methodology to reasonably assure compliance with concurrency.
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Must cities or counties planning under the GMA include economic development elements in their comprehensive plans before the state provides funding for this?
Reviewed: 12/13
The Washington Growth Management Act (GMA) encourages economic development consistent with adopted comprehensive plans. SSHB 2697 (Chapter 154, Laws of 2002) added economic development to the list of required elements of a growth management comprehensive plan, but also provides:
It is the intent that new or amended elements required after January 1, 2002, be adopted concurrent with the scheduled update provided in RCW 36.70A.130. Requirements to incorporate any such new or amended elements shall be null and void until funds sufficient to cover applicable local government costs are appropriated and distributed by the state at least two years before local government must update comprehensive plans as required in RCW 36.70A.130.
We interpret this language to mean that an economic development element is not required until the state has appropriated and distributed sufficient funding to cover the cost to local governments of developing this element. "Null and void" means without legal effect. The requirement basically doesn't exist, until it has been funded. Such funding must also be provided at least two years before local governments are required to update their comprehensive plans. To date no such state funding has been adopted or appropriated.
For more information on this subject, see our Planning for Economic Development Web page.
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What are capital facilities?
Reviewed: 12/13
A capital facility is a structure, street or utility system improvement, or other long-lasting major asset, including land. Capital facilities are provided for public purposes. Capital facilities include, but are not limited to, the following: streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, parks and recreation facilities, schools, and police and fire protection facilities. These capital facilities include necessary ancillary and support facilities. See also
Capital Facilities Planning, an MRSC webpage.
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What must be included in a capital facilities plan element?
Reviewed: 12/13
Each comprehensive plan prepared under the GMA must include a capital facilities plan element.
RCW 36.70A.070(3) of the GMA states the following:
A capital facilities plan element consisting of:
(a) An inventory of existing capital facilities owned by public entities, showing the locations and capacities of the capital facilities;
(b) a forecast of the future needs of such capital facilities;
(c) the proposed locations and capacities of expanded or new capital facilities;
(d) at least a six-year plan that will finance such capital facilities within projected funding capacities and clearly identifies sources of public money for such purposes; and
(e) a requirement to reassess the land use element if probable funding falls short of meeting existing needs and to ensure that the land use element, capital facilities plan element, and financing plan within the capital facilities plan element are coordinated and consistent. Park and recreation facilities shall be included in the capital facilities plan element.
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Should the capital facilities plan be prepared for the city or for the entire urban growth area?
Reviewed: 12/13
The capital facilities element plan must be prepared for the entire urban growth area. This is in keeping with the intent of the Growth Management Act to help cities prepare for growth in their urban growth areas.
In Fallgatter v. City of Sultan, the Central Puget Sound Growth Management Hearings Board found that the city must comply with RCW 36.70A.020(12) and 36.70A.070(3)’s mandate to provide adequate and necessary facilities to support existing and new development within the UGAs within the 20-year planning period . (Fallgatter v. City of Sultan, Central Puget Sound Growth Management Hearings Board Case No. 07-3-0017, FDO, 9/5/2007.)
Based on the same statutes, the CPSGMHB found Kitsap County to be noncompliant because UGA expansions based upon a noncompliant, invalid Capital Facilities Element do not comply with the GMA’s directive that necessary and adequate public facilities and services be available within the UGA. (SuquamishTribe, et al v. Kitsap County, Puget Sound Growth Management Hearings Board Case No. 07-3-0019c, Order on Motion for Reconsideration, 9/13/07.)
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What are critical areas?
Reviewed: 12/13
The Growth Management Act contains a provision requiring all cities and counties to designate and take measures to protect natural areas of critical ecological value (
RCW 36.70A.170 and
RCW 36.70A.060(2)). These critical areas include: wetlands; areas with a critical recharging effect on aquifers used for potable water; fish and wildlife habitat conservation areas; frequently flooded areas; and geologically hazardous areas (
RCW 36.70A.030(5)).See MRSC's
Critical Areas webpage for more information.
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What are the notice and hearing requirements for adoption of a critical areas ordinance under the Growth Management Act?
Reviewed: 12/13
The GMA does not add any specific notice and hearing requirements to the existing requirements with respect to adoption of development regulations such as a critical areas ordinance.
However, RCW 36.70A.140 requires that cities and counties planning under the act
establish and broadly disseminate to the public a public participation program identifying procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments.
If the cityor county has a public participation plan in place, it should be followed. Otherwise, the city should follow the procedures established for adoption of development/zoning regulations. (See RCW 35.63.100, RCW 35.63.120, RCW 35A.63.070, RCW 35A.63.100, RCW 36.70.580, and RCW 36.70.590 for other notice and hearing requirements preceding GMA.)
The same basic guidelines should be followed when adopting amendments to the critical areas ordinance or other development regulations.
Also see Public Hearings: When and Where to Hold Them.
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May a city adopt performance standards to comply with growth management requirements for critical areas designation?
Reviewed: 12/13
The Central Puget Sound Growth Management Hearings Board concluded in Gutschmidt v. Mercer Island (CPGMHB No. 92-3-0006, Final Decision and Order, March 1993) that a city can adopt performance standards, rather than detailed prescriptive standards and mapping, to comply with GMA requirements for critical areas designation. For example, a city may require individual property owners to submit reports and surveys that enable the city staff to determine whether critical areas exist on the property. Instead of utilizing detailed mapping, a city may establish definitions and narratives that characterize what lands constitute critical areas.
Also, in Pilchuck Audubon Society v. Snohomish County (CPSGMHB No. 95-3-0047, Final Decision and Order, 12/06/1995), the Central Puget Sound Growth Management Hearings Board stated that, where critical areas are known, cities and counties cannot rely solely upon performance standards to designate these areas.
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What is the legality of downzoning for critical areas protection?
Reviewed: 12/13
Downzoning is the practice of rezoning an area from a more intensive use to a less intensive use. It is not inherently unlawful to downzone. The fact that the property may not have as great a value after the rezone does not invalidate the rezone action or necessitate the payment of damages by the city.
While property owners must be allowed some reasonable use of their property, a city does have a right to change zoning in order to prevent a harm or protect critical areas, even if in so doing the property value is diminished.
Nevertheless, a city must carefully evaluate whether a proposed downzone might constitute an unconstitutional taking of private property. If application of critical area guidelines or regulations to a particular piece of property would prevent development on the property to such extent that the property owner is denied "all economically viable use of any parcel of regulated property," the city may be liable for damages for a taking of the property, whether the taking is temporary or permanent. Any environmental regulation should be based on a sound comprehensive planning process and supporting background studies. See the MRSC Web page on regulatory takings for more information on this subject.
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What are urban growth areas (UGAs)?
Reviewed: 12/13
Urban growth areas are those areas, designated by counties pursuant to RCW 36.70A.110, "within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature." Within these UGAs, growth will be encouraged and supported with adequate facilities. Areas outside of the UGAs will be reserved for primarily rural and resource uses.
All cities and towns in counties fully planning under the GMA are within the UGA. RCW 36.70A.110 further states that:
An urban growth area may include more than a single city. An urban growth area may include territory that is located outside of a city only if such territory already is characterized by urban growth whether or not the urban growth area includes a city, or is adjacent to territory already characterized by urban growth, or is a designated new fully contained community as defined by RCW 36.70A.350.
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How are urban growth areas established?
Reviewed: 12/13
RCW 36.70A.110, enacted as part of the GMA, indicates that urban growth areas are to be "[b]ased upon the population forecast made for the county by the office of financial management." OFM is to prepare a reasonable range for its population projections for counties, with the middle range representing the most likely population projection for the county. The county is the body that designates UGAs, and the statute mandates that the county must consult with cities in an attempt to reach agreement on the location of these urban growth areas. Based upon the OFM projections, the county and each city within the county shall include areas and densities sufficient to permit the urban growth that is projected to occur in the county or city for the succeeding twenty-year period, except for those urban growth areas contained totally within a national historical reserve.
RCW 36.70A.110 further states that
Each urban growth area shall permit urban densities and shall include greenbelt and open space areas. In the case of urban growth areas contained totally within a national historical reserve, the city may restrict densities, intensities, and forms of urban growth as determined to be necessary and appropriate to protect the physical, cultural, or historic integrity of the reserve. An urban growth area determination may include a reasonable land market supply factor and shall permit a range of urban densities and uses. In determining this market factor, cities and counties may consider local circumstances. Cities and counties have discretion in their comprehensive plans to make many choices about accommodating growth.
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Must a comprehensive plan or plan amendment be adopted by ordinance?
Reviewed: 12/13
We recommend adopting a comprehensive plan or plan amendment by ordinance. Ordinances are generally used to prescribe general and permanent rules of conduct or government, and resolutions generally deal with matters of a special or temporary character. In addition, at least one growth management hearings board has concluded that jurisdictions planning under GMA must adopt a comprehensive plan by ordinance. The Central Puget Sound Growth Management Hearings Board held that GMA comprehensive plans must be adopted by ordinance, based on
RCW 36.70A.290(2)(a), which refers to "the ordinance or summary of the ordinance, adopting the comprehensive plan or development regulations." (See
Burlington Northern Railroad v. Auburn, CPSGMHB No.95-3-0050, Order of Dismissal, 1995). The Western Washington Growth Management Hearings Board, however, came to a different conclusion in
Moore-Clark v. Town of La Conner, WWGMHB No.94-2-0021, Order Regarding Dispositive Motions, 1995. Since the issue isn&t settled at this date, it would be safer to adopt the comprehensive plan by ordinance.
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Would amendments to the comprehensive plan for an area being annexed be subject to the once-a-year comprehensive plan amendment restriction?
Reviewed: 12/13
RCW 36.70A.130(2)(a) limits comprehensive plan amendments to no more than once-a-year, with certain
specific exceptions identified in that subsection. None of those specific exemptions is for amending the comprehensive plan for an area being annexed. However, such an amendment could possibly fit under
RCW 36.70A.130(2)(b), which provides that “after appropriate public participation a county or city may adopt amendments or revisions to its comprehensive plan that conform with this chapter whenever an emergency exists.” Not having an area of the city subject to its comp plan as a result of annexation could perhaps be considered an emergency so as to fit under that provision. We are not aware of any case law or growth management hearings board decision on point, however.
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May a city restrict the conversion of apartments to condominiums within the city?
Reviewed: 12/13
There is only a limited ability of a city to restrict the conversion of condominiums. RCW 64.34.050, enacted in 1989, limits the ability of a city to regulate these conversions. It provides that no city ordinance may prohibit the condominium form of ownership or impose any requirement on a condominium which it would not impose on a physically identical development under a different form of ownership.
There are certain protections in state law for tenants in conversion situations, such as requiring at least 120-day notice to vacate and also a first right to purchase. In addition, cities may require a housing code inspection, the correction of housing code violations before closing, a one-year warranty on housing code violation repairs, a one-year escrow deposit equal to 10 percent of the cost of housing code violations, and a relocation assistance in an amount to be determined by the city or county, which may not exceed a sum equal to three months of the tenant's or subtenant's rent at the time the conversion notice payable to low income tenants. Elderly or special needs tenants may receive a greater amount of relocation assistance as provided in RCW 64.34.440(6)(e)(ii). Otherwise, state law preempts cities from enacting local condominium conversion ordinances. Cities and counties planning under GMA which have allowed any conversion condominiums within the jurisdiction within the previous 12 month period, must report annually to the Department of Commerce.
See the following sample condominium conversion ordinances:
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Are local governments subject to a 120-day timeline for project permit review? Are cities liable if they fail to act on project permits within a 120-day time period?
Reviewed: 12/13
In most cases, local governments should use 120 days as the basic limit for project permit review, although they can exceed this if they make written findings that a specified amount of additional time is needed to process a specific project permit application or type of project. RCW 36.70B.080(1) provides for the following :
Development regulations adopted pursuant to RCW 36.70A.040 must establish and implement time periods for local government actions for each type of project permit application and provide timely and predictable procedures to determine whether a completed project permit application meets the requirements of those development regulations. The time periods for local government actions for each type of complete project permit application or project type should not exceed one hundred twenty days, unless the local government makes written findings that a specified amount of additional time is needed to process specific complete project permit applications or project types.
The development regulations must, for each type of permit application, specify the contents of a completed project permit application necessary for the complete compliance with the time periods and procedures.
Further, RCW 36.70B.080(3) allows a county or city to extend a deadline for issuing a specific project permit application for a “reasonable” amount of time mutually agreed upon by the applicant and the local government.
Local governments do face potential liability if they fail to act within a 120-day time period or other time limit established by the local government pursuant to RCW 36.70B.080 discussed above. This potential for liability is based on RCW 64.40.020(1), which reads, in part:
Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law.
So, if a city or county fails to process a permit application within the timeline it has established in its development regulations, it is subject to potential liability under RCW 64.40.020(1). As a result, cities and counties may want to review established timelines to assure that they can be dependably met.
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Must landscaping plans be stamped by a licensed landscape architect?
Reviewed: 12/13
The state statute regarding landscape architects,
Chapter 18.96 RCW, requires that all plans prepared by a licensed landscape architect be stamped with the seal of the registered landscape architect (
RCW 18.96.150). However, the statute does not address which plans are required to be stamped by a licensed landscape architect. Each jurisdiction determines which plans must be stamped by a licensed landscape architect and should follow its own regulations. Some jurisdictions have prepared city landscape standards, which outline the types of landscaping plans that must be prepared and stamped by a licensed landscape architect.
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Is there any penalty if a city or county fails to send out a notice of completeness with respect to a project permit application?
Reviewed: 12/13
RCW 36.70B.070(1) requires local governments fully planning under the Growth Management Act to send or provide in person a notice of completeness (or one stating that the application is incomplete and what is required to make it complete) within 28 days after receiving a project permit application. The "penalty" for failure to comply with this requirement is that the application will be "deemed complete." RCW 36.70B.070(4)(a).
Despite an application being deemed complete, the city or county may still request additional information. RCW 36.70B.070(2) provides in part:
The determination of completeness shall not preclude the local government from requesting additional information or studies either at the time of the notice of completeness or subsequently if new information is required or substantial changes in the proposed action occur.
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Request for sample design guidelines for corporate franchise establishments, including fast-food restaurants.
Reviewed: 12/13
This is in response to your request for design guidelines addressing corporate franchise establishments. As we discussed, most of the material on corporate franchise design addresses fast-food restaurants or large retail establishments, and I understand that you are more interested in the fast-food restaurant guidelines. Some jurisdictions address corporate signage in their sign guidelines and regulations.
I've found some interesting design guidelines related to corporate franchise design from communities outside Washington State but not much from Washington jurisdictions. I have included some commercial design guidelines from Washington jurisdictions as background information, even though they may not address corporate franchise design specifically.
Washington Jurisdictions
Out of State
- Georgetown, CO - Town of Georgetown Design Guidelines, Corporate and Franchise Designs
- Hopkins, MN - Downtown Design Guidelines, Franchise Architecture
- Cathedral City, CA Design Guidelines - Landmarks, Franchises and Problem Uses
- Walnut Creek, CA Design Review Guidelines (See Ch. Two, Guideline III(E). Fast Food Restaurant Guidelines)
- Westminster, CO Retail Commercial Design Guidelines, Part V - Architecture
The following items are available on loan from the MRSC:
- "Saving Face: How Corporate Franchise Design Can Respect Community Identity," by Ronald Lee Fleming, PAS Report No. 452, 1994
- City of Gig Harbor Design Manual, 1996 - see "Miscellaneous Architectural Devices," on p. 72+
- "Have It Your Way: Fast-Food Restaurant Design," by Edward T. McMahon, Planning Commissioners Journal, No. 20, Fall 1995
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Is it permissible for board of adjustment members to independently visit sites under consideration?
Reviewed: 12/13
Although there is no specific statutory prohibition on site visits, this practice should be discouraged because it raises due process and basic fairness concerns. Site visits are contrary to the basic concept that members of a quasi-judicial body should base their decision solely on information presented at the hearing on the matter. This helps to ensure a basic sense of fairness to such a proceeding, despite the fact that each board member comes to the proceeding with his or her own unique knowledge and biases.
Site visitations are not specifically prohibited in the codification of the appearance of fairness doctrine in Ch. 42.36 RCW. Ex parte communications with opponents or proponents of a particular project (at a project site or otherwise) are, however, prohibited unless the substance of any such communication is placed on the record and a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication is made at each hearing involving the particular project. See RCW 42.36.060. Further, a site visit by a quorum of the board (or, in some circumstances, less than a quorum) would constitute a violation of the Open Public Meetings Act, absent the visit taking place in the context of a public meeting.
The most efficient way of providing site information to board members is to have a staff member report on the site, with photographs and diagrams, at a hearing. If the board deems it necessary to make a site visit, it should do so in the course of a public hearing, with opponents and proponents and members of the public entitled and invited to attend.
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Request for basic pro and con information relating to the Growth Management Act.
Reviewed: 12/13
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Arguments raised pro GMA |
Arguments raised against GMA |
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Can qualify for growth management and other grants
Can enact impact fees per RCW 82.02.050 |
Additional cost to the city or county to meet GMA requirements |
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Growth management requires cities and counties to work together to develop common countywide policies and designate urban growth areas |
Counties decide whether to opt in; all cities within county automatically follow county decision |
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GMA requirement for consistency results in better overall planning
Growth management provides tools for planning for and phasing growth in a coordinated and thoughtful manner |
City or county must follow act requirements; less flexibility for city/county; more state oversight of local planning |
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Growth management helps to protect valuable agricultural lands and other resource lands by concentrating development in urban areas and through development regulations |
Growth management emphasis on urban densities in UGAs is often controversial and may be difficult for small communities
Growth management policies and regulations support very low densities in rural areas and resource lands outside UGAs; this may be controversial |
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Growth management public involvement helps build support for planning and land use regulation |
Property rights groups have opposed growth management |
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Helps communities to identify and meet their goals for the future and plan to meet needs. Goals and policies help to improve overall governmental decision processes |
Communities can do this without GMA and with greater flexibility than allowed by GMA |
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Growth management requires capital facilities planning and plan for how to pay for needed infrastructure
GMA promotes logical, cost effective extension of public facilities. |
Communities must do capital facilities planning even without GMA
Cities and counties struggle with finding adequate funding sources for facilities needed to support new growth |
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Growth management helps to improve a community’s livability and retain its distinctive character |
Some say that growth management is challenging for small, rural counties with limited resources |
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Growth management helps to protect critical environmental areas |
Critical areas regulations are required even for jurisdictions not fully planning under GMA |
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Growth management requires planning for housing locally and regionally and zoning for adequate land supply to meet a range of needs |
Some say that growth management may increase housing costs if demand outstrips housing supply |
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Growth management provides a framework for protecting historic properties |
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GMA helps ensure continuity in planning over time because of restrictions and requirements relating to amendment of plans |
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Does the Growth Management Act (GMA) require that cities have an average density of four houses per acre?
Reviewed: 12/13
The GMA does not have a specific requirement for a minimum or an average density of four houses per acre in urban areas. It does have goals that direct local jurisdictions to reduce low density sprawl, and it has requirements for the establishment of urban growth areas where urban densities are encouraged. Although a series of Growth Management Hearings Board cases established a "bright line" of four units per acre as a minimum appropriate urban density, the state supreme court subsequently ruled that the boards do not have the authority to make public policy and establish such a "bright line" rule.
Viking Properties v. Holm, 155 Wn.2d 112 (2005).
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May a city refuse a request for utility service outside its boundaries but within its UGA and where the city's water and sewer service area plan defines the city's water and sewer service area as its UGA?
Reviewed: 12/13
Although the Growth Management Act (GMA) contemplates that a city is the appropriate provider of utility services within its Urban Growth Area (UGA), the city is not obligated by the GMA to so provide at any particular time. A city likely wants to control how and when urban growth occurs within the UGA. So, providing or not providing urban services is a basic tool of this control. There is no language in the GMA that takes this tool away from cities or that obligates cities to provide urban services to an area on demand simply because it is within the UGA.
Nevertheless, a city may be obligated to provide utility (water or sewer) service outside its boundaries but within the UGA based on rules developed by case law. The general rule is that, in the absence of a contract, express or implied, a municipality cannot be compelled to supply water outside its boundaries. Brookens v. Yakima, 15 Wn. App. 464, 466 (1976). So, if there is an express contract to provide utility service, a city is contractually obligated to provide that service. An implied contract can arise "where a municipality holds itself out as a public utility willing to supply all those who request service in a general area." Brookens, 15 Wn. App. at 466-67. A city may also have a duty to supply water or sewer service "where a city is the exclusive supplier of sewer or water service in a region extending beyond the borders of the city." Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381-82 (1993).
But that duty, if it arises, is not absolute; a city may deny water or sewer services if it lacks the needed capacity. Yakima Fire Prot. Dist., 122 Wn.2d at 382. Also, the duty to provide the service is "subject to such reasonable conditions, if any, as the law may allow." Id. An example of such a reasonable condition, as was presented in the Yakima case, is that the property owner agree to annexation.
A case where a Washington appellate court found a duty to supply utility service within the entire UGA was in Nolte v. City of Olympia, 96 Wn. App. 944 (1999), where the city admitted that it was the sole provider of water and sewer service to the UGA.
The bottom line answer is "it depends." The fact that the city's adopted water and sewer service area plans are defined as their UGA boundaries may be a factor in favor of there being a duty to supply those services.
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Request for information on experiences of cities and counties that have signed interlocal agreements to manage development review and planning for their urban growth areas.
Reviewed: 12/13
Growth Management Interlocal Agreements regarding Urban Growth Areas: A Summary of Issues
The following is a summary of city and county experiences with growth management interlocal agreements (as of September 2003) for development review and planning within the UGA. This information is based on interviews with city and county planners and on MRSC review of sample agreements.
Basic Advice - Keep the agreements simple and keep on talking - coordination and cooperation are essential, especially at the staff level (Olympia, Lynnwood). Douglas County recommends getting an agreement in place, even if it is not perfect, because the agreement can be amended as needed. Commitment to the provisions of the agreement is also essential and has been a problem in a few instances.
Counties and cities where interlocal growth management agreements are generally working particularly well:
- Douglas County - East Wenatchee
- Thurston County - Olympia, Tumwater and Lacey
- Whatcom County - Bellingham
- Yakima County - Yakima and Grandview
In most cases, cities are more positive about interlocals than counties, because the benefits to cities are more obvious, although counties can gain from revenue sharing agreements as well. The agreement typically clarifies and in some cases simplifies the annexation process, which brings more revenue to the city and results in a loss of county tax base. The interlocals require counties to implement city policies and standards and typically complicate the county's development review process. The interlocal agreement process also works more smoothly in smaller counties with fewer cities and towns because less coordination is involved and development review processes are typically simpler. Some counties, such as Snohomish and Pierce, have very large unincorporated UGAs, which further complicate the situation. King County, by contrast, has less unincorporated land in the UGAs, partly due to new incorporations since the GMA was enacted.
In Douglas County, the success of the interlocal agreement with East Wenatchee has provided a stepping stone to other cooperative efforts between the city and county.
Coordination
Coordination at the planning staff level is generally good (Skagit, Whatcom, Thurston, Yakima, others). In Thurston County, city and county department heads meet once a month; staff meet as needed (sometimes weekly to review major development projects). The city staff acts as consultant to the county. In Snohomish County, Snohomish County Tomorrow is a collaborative interjurisdictional forum that includes representatives from all cities, the county and the Tulalip tribe. The planning directors meet monthly.
Continuity of Support from Elected Officials
Changes in elected officials have been problematic for interlocal growth management agreements in many counties; county support for the interlocals is essential and is difficult to obtain because county officials view the interlocal as a loss of control (as well as lost revenue when annexation occurs). There is an issue of representation. Unincorporated UGA residents vote for county commissioners or councilmembers but are essentially being regulated by city councils if the county follows city standards in the UGA.
County Permit Processing using City Standards
In most cases when interlocal agreements are adopted, the county processes development permits using city standards, although Snohomish County and Whatcom County are exceptions. Some counties would like to develop a single set of urban standards for all unincorporated UGAs for cities within the county. Snohomish County has developed uniform urban standards for unincorporated UGAs, but there is an issue with design guide ines from cities that have not been adopted by the county. (Snohomish County's standards are not yet adopted.) Snohomish County also has an urban centers demonstration code that has been very well received and is being implemented on a voluntary basis in two areas within the county's southwest UGA. This code encourages mixed-use development at urban densities and provides some flexibility for innovative transit-oriented urban development projects. (See Snohomish County Code Ch. 30.34A - Urban Centers Development Program).
In Thurston County, Lacey, Tumwater and Olympia each provided 75% of the funding for a draft county ordinance addressing each of their respective development standards. The use of city standards is important so that the new development in the UGA, which will eventually become part of the city, will have the look and feel of city development. Having the same street standards is especially important. Without similar standards, it would likely be less expensive to build in unincorporated UGAs, and this would encourage sprawl rather than the compact urban growth as envisioned by the GMA. One of the problems has been getting city and county fire departments to accept the same standards.
In the Bellingham UGA in Whatcom County, certain city standards have been used for some permits (such as subdivisions) but not others (building permits). Bellingham has a history of extending sewer and water service outside the city boundaries. In the future, Bellingham will require new development in its unincorporated UGA to meet city standards in order to extend services or only rural densities will be allowed.
Common service standards are more of problem for large counties which must deal with varying city standards for the multiple city UGAs within a single county. Some counties wish that they had developed a single county-wide standard for urban development outside cities rather than adopting the standards of each individual city (Skagit and Thurston).
Common Zoning
This is similar to the standards issue. Zoning districts vary among jurisdictions, and this has also been problematic for counties when varying city zoning districts and/or development standards are adopted within the UGA. Most counties retain the county zoning in the unincorporated UGA until the time of annexation, but Thurston County is an exception. Thurston County has adopted city zoning regulations within UGA but would have preferred a single set of urban zoning districts for all unincorporated UGAs to simplify administration. Thurston has also developed a single county-wide zoning standard for home occupations and cell towers.
Interlocal Agreements Will Not Solve All Growth Management Issues between a County and its Cities
In some cases cities and counties haven't been able to reach agreement on service standards, revenue sharing or other issues, and have agreed to disagree. (For instance, Thurston County did not adopt Olympia's park plan). Adjustment is needed as plans and development regulations change, and actual development occurs.
Revenue Sharing
One of the big stumbling blocks is the issue of revenue-sharing between cities and the county (Clallam, Snohomish, Thurston, Whatcom, and Yakima). So far, this has mostly been handled on a case-by-case basis associated with a particular annexation request, such as in the case of city contribution for a major county capital improvement, such as a road project. The East Wenatchee - Douglas County interlocal agreement , and the Walla Walla City and County Urban Area Growth Management Agreement are among the few that address revenue sharing. Douglas County is pleased with the fact that the interlocal agreement recognizes county financial interests. The mediated revenue sharing agreement between Moses Lake and Grant County is another example. The Clark County-Vancouver agreements for the Van Mall development are a good example of past revenue sharing agreements.
For more information, MRSC has a Web page that addresses Annexation and Growth Management Agreements - Revenue Sharing .
The issue of assessing impact fees to finance services within a city's unincorporated UGA is sometimes problematic because counties are generally more reluctant than cities to impose impact fees.
Annexation Issues
Annexation is a problem because it has not occurred as quickly as anticipated in most counties. Some of this is due to boundary review boards (BRBs) and their requirements. The boundary review board is a particular problem in Skagit County. BRBs have been used as a way to organize opposition to annexation (Skagit County). There also is a need for a simplified approach to annexation for unincorporated islands (Thurston County). (Note: There is a new law (SHB 1755) that provides for an alternative approach to the annexation of unincorporated islands. This option provides for an interlocal agreement between the county and city and is only available in counties subject to buildable lands review and evaluation under the GMA.)
Snohomish County has developed a master interlocal agreement for annexation and prepares an interlocal agreement with a city when an annexation involves 50 acres or more.
Some cities will not extend sewer and water service to unincorporated areas without annexation (Snohomish, Skagit). This may reflect the aftermath of the Moses Lake decision, because many cities used outside utility agreement prior to the court decision. There is a potential impasse in Skagit County related to a pending Growth Management Hearings Board decision (Anacortes). Because the Skagit County BRB is a major impediment to annexation, in the future Skagit County may not allow construction in UGAs until annexation occurs. This may place the onus on the developer rather than the city to move forward with annexation.
In Douglas County, an annexation to East Wenatchee was approved by a large majority at an election. The county planning director feels that the cooperative attitudes between the city and the county, including the interlocal agreement, have had a lot to do with strong local support.
The adoption of interlocal agreements in King County has not proceeded as originally envisioned. Instead, the county has adopted a map showing annexation areas as part of countywide planning policies. This has helped to resolve overlapping annexation areas and identify gaps in unincorporated UGAs. From the county's perspective, this is a much simpler approach than adopting multiple interlocals, since King County and a number of its cities had reached a deadlock in developing interlocal agreements. In 2003, King County offered a one-time financial incentive to cities to annex unincorporated urban islands .
In 2003, Snohomish County was in the process of adopting a map of annexation area boundaries for the nine cities in the Southwest County UGA. This was a several-year process involving extensive coordination between the county and the cities.
Subarea Planning
Until recently Snohomish County was preparing subarea plans within its unincorporated UGAs and processing development permits within the unincorporated UGAs using county standards. In general, the subarea planning process was contentious and unwieldy The county stopped developing subarea plans within unincorporated UGAs associated with cities and is relying on the cities to do this planning instead.
Staff Transfers
Another issue involves transferring staff as part of the annexation process. This is a somewhat touchy issue and is relatively untested at this point. In 1996, Clark County and Vancouver signed a memorandum of understanding regarding interagency personnel transfers for a large annexation area.
Other Issues
Another more minor concern is the transfer of county records to the annexing city (Douglas County). According to public records retention requirements, county records must remain with the county even though the city needs the information for annexed property. In Douglas County, the city is responsible for copying files or requested records.
Skagit County has a procedure for six-month updates to city regulations and UGA boundaries to keep boundaries and standards up-to-date. This has been a record-keeping nightmare for the county.
In Whatcom County, the agreement with Bellingham is amended every time a new annexation occurs.
Jurisdictions are using plan updates as a time to refine interlocal agreements for UGAs. In Douglas County, all cities are working with the county to develop a joint plan as part of the plan update.
Sample Agreements
Here are some Web links that may interest you, including links to some of the agreements discussed above. The MRSC Web pages contain many newer agreements.
King County
Interlocal agreement between King County and Auburn related to potential annexation area designation and future service provision
Skagit County
Skagit County and Anacortes Interlocal Agreement
Snohomish County
Interlocal Agreement between the City of Monroe and Snohomish County Concerning Annexation and Urban Development within The Monroe Urban Growth Area, 2008 - Addresses county collection and transfer of uncommitted proportion of impact fees upon annexation
Whatcom County
Bellingham and Whatcom County Interlocal Agreement
(Link to this question)
Must a port district comply with city zoning regulations over an airport?
Reviewed: 11/13
Yes, although cities and port districts are encouraged to work cooperatively in such situations. See, e.g., RCW 14.12.030. Generally, port districts are subject to a city’s zoning authority.
The court of appeals has held that a port district is required to comply with regional transportation plans and local comprehensive plans adopted under the Growth Management Act (GMA). See Des Moines v. Puget Sound Reg'l Council, 108 Wn. App. 836, 843 (1999). And, at least two attorney general opinions state that a port district is subject to city zoning. See AGO 1983 No. 3 (“And because a port district is subject to city zoning and building codes … .”); AGO 1978 No. 12 (“… to the extent they are territorially situated within the boundaries of an incorporated city or town, the various public port districts in our state are now subject to both the zoning codes and the building codes of those municipalities.”).
In analyzing whether a water-sewer district was required to comply with a county’s zoning code, the state supreme court analyzed the issue in a way that should equally apply to the same issue with respect to a port district. In Olympic View Water and Sewer Dist. v. Snohomish County, 112 Wn.2d 445, 448-49 (1989), the state supreme court applied the test set out in Everett v. Snohomish County, 112 Wn.2d 433 (1989), and concluded:
Here, the Legislature in empowering water and sewer districts to maintain and supply waterworks, maintain and operate systems of sewers, and to acquire property necessary for such purposes, provided no detailed standards to guide such districts in selecting sites for facilities such as the shop and storage facility at issue herein. Further, the Legislature did not purport to preempt the field of zoning regulations or otherwise oust counties of their zoning authority in such cases. Upon examining the statutory authority granted by the Legislature to both the District and the County herein, we likewise perceive the intent of the Legislature to be that the District comply with the County's zoning code.
As to port districts, the legislature did not provide them with the authority or with standards to regulate the siting of its facilities, nor does it purport in the port district title, Title 53 RCW, nor in the cities and towns title, Title 35 RCW, to preempt the zoning authority of cities with respect to port districts.
So, while a port district certainly engages in planning with respect to its facilities and properties (see, e.g., RCW 53.25.090), its development activities pursuant to any such plan must be consistent with the city’s zoning and comprehensive plan.
Note also that chapter 14.12 RCW, which relates specifically to airport zoning, provides in RCW 14.12.050 that where there is a conflict between any airport zoning regulations adopted under chapter 14.12 RCW and any other regulations applicable to the same area, the more stringent requirement or limitation governs.
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Must an access easement to a proposed plat be permanent in order to be considered adequate access?
Reviewed: 11/13
Subdivisions must have adequate access - access that meets the local standards for such. (See Lechelt v. Seattle, 32 Wn. App. 831, 835 (1982), review denied, 99 Wn.2d 1005 (1983): "Agencies reviewing plat applications must consider the adequacy of access to and within the proposed subdivision, and may condition approval of the plat upon the provision of adequate access.") Although we could find no legal authority right on point, it's our opinion that, where access is provided by an easement across adjacent private property, that easement must be "permanent" in order to be adequate. If that easement can be revoked in the future, it should not be deemed to be adequate access. The easement, however, need not be exclusive.
If the adjacent property owner will not grant a permanent easement, the landlocked subdivider/property owner may be able to obtain a "private way of necessity" that would serve as a permanent easement that would provide adequate access. See RCW 8.24.010.
In sum, we would recommend that plat or short plat approval not be granted if the subdivider cannot show a permanent access easement that meets the local standards for such.
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What are the county's obligations when reviewing and collecting impact fees on behalf of a school district?
Reviewed: 11/13
The county is the agency that is authorized to impose and collect impact fees. As a result, it is the county's responsibility to ensure that the requirements of chapter 82.02 RCW and the county's impact fee regulations are met. The county should ensure that any impact fees collected are for public facilities that are addressed by a capital facilities plan element of the adopted comprehensive plan as provided in RCW 82.02.050(4) and that the other criteria of that statute are met. The county should ensure that the administration requirements of RCW 82.02.070 are followed, including retaining in special interest bearing account, expending within 10 years, and other requirements. See also WAC 365-196-850 - Impact Fees.
Although the county is ultimately responsible for administering the impact fee program, the school district is the agency that is spending the funds, so joint and cooperative action by the city and the school district is necessary for the city to impose the fees and for the school district to use the fees collected for school facilities. An interlocal agreement is the proper vehicle for such joint and cooperative action. See RCW 39.34.030 ("Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter.").
We believe that King County has such agreements with school districts regarding impact fee collection on the district's behalf, so you should refer to the applicable agreements regarding county and district responsibilities. Interlocal agreements are a means for the county to help ensure that statute and code requirements are met. For instance, in this Thurston County-Rochester School District agreement, the county agrees to transmit the collected funds to the district as sound as practicable, while the district agrees to establish an interest-bearing impact fee fund, to refund the fees when required, and to expend the funds consistent with chapter 82.02 RCW. In addition, the district must maintain the accounts and records necessary to demonstrate compliance and prepares an annual report to the county.
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Does the Growth Management Act prohibit cities from extending utility services (water and/or sewer) outside the urban growth area to serve proposed development?
Reviewed: 09/13
The answer is, generally, yes. RCW 36.70A.110(4) provides that it is not appropriate for urban governmental services to be extended to or expanded in rural areas. RCW 36.70A.030(18) makes it clear that water and sewer service are urban governmental services. There is an exception to extending water or sewer service outside the urban growth area in those limited circumstances shown to be necessary to protect the public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development. RCW 36.70A.110(4). So, this limited exception to the general prohibition may or may not apply in a given situation depending on some specific facts.
The leading case on this issue is Thurston County v. Cooper Point Association, 148 Wn.2d 1 (2002), which reviewed the extension of a sewer line by the county into a rural area. The court held that the county's proposed extension of sewer services constituted urban growth subject to statutory restrictions and that the county had not shown the extension was necessary to protect basic health, safety, and the environment. Therefore, the extension of services was in violation of the Growth Management Act, RCW 36.70A.110(4).
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Are there any laws that apply to a person raising bees?
Reviewed: 07/13
Some statutory provisions address beekeeping, including chapter 15.60 RCW ("Apiaries"), as well as administrative regulations in chapter 16-602 WAC. See also RCW 17.24.011 (regulation of plant, plant product, bee movement), and RCW 82.04.629 (B&O tax exemptions for honey bee products). These requirements and provisions could apply, depending on the particular circumstances at issue.
Also of interest may be regulations adopted by cities in Washington State on this general issue. Typically, such regulations are part of regulations related to animals or are found in the zoning code. See the following examples:
The following general information may also be of interest:
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How can a city restrict undesirable uses while it is working on a downtown redevelopment strategy involving changes to zoning and design standards?
Reviewed: 06/13
It is common to enact a six-month moratorium in situations where a downtown plan or strategy is being developed that will involve revisions to the comprehensive plan, zoning code, or design standards. For statutory provisions regarding moratoria and interim zoning, see RCW 36.70A.390 (GMA), RCW 35A.63.220 (code cities), RCW 35.63.200, and RCW 36.70.795 (counties). A public hearing is required within at least 60 days of the adoption of the moratorium or interim zoning. The six-month moratorium (or interim zoning) can be extended for additional six-month periods, as noted in the statutes.
We see several options for the moratorium. It could be applied to all uses in a certain downtown zoning district and/or defined area. If you wanted to allow some types of development to continue, the moratorium could be limited to specific uses that would not be allowed to be developed during the moratorium period (such as auto repair, storage units, etc.). Another less common approach would be to state the uses that would be allowed during the moratorium period and make all other uses not listed subject to the moratorium.
The following are some examples of ordinances establishing moratoria for downtown and other commercial zoning districts:
Another option used by communities when revisions to the zoning code or design standards are underway is to enact an interim zoning ordinance. This is not practical unless draft zoning changes or design standards have already been developed and may be less applicable to your situation. Here are two examples of interim zoning with respect to downtown zones:
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Does the vested rights doctrine apply to binding site plans?
Reviewed: 05/13
This issue has been addressed in two recent court cases, but the answer is not a simple yes or no. These cases both concluded that the vested rights doctrine did not apply to binding site plans in view of the process established by each jurisdiction for approving binding site plans and building permits. The clear implication is that possibly the vested rights doctrine would apply if the local process were different.
- Deer Creek Developers, LLC v. Spokane County, 157 Wn. App. 1 (2010)
A developer does not have a due process right to the vesting of development rights under existing land use laws and regulations upon the filing of an application for site plan review if, under applicable laws and regulations, site plan review approval is not a prerequisite to the submission of a building permit application and the developer is not prohibited from filing a building permit application at the same time the site plan application is filed.
- Abbey Rd. Group, LLC v. City of Bonney Lake, 167 Wn.2d 242 (2009)
After the developer applied for site development plan review but before applying for a building permit, the city council passed an ordinance rezoning the subject property to a zoning category that precluded the sort of multifamily development the developer sought to construct. Concluding that Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864 (1994), was controlling and upholding a prior court of appeals decision, the state supreme court held that the developer, having failed to file a building permit application, did not have vested rights in the prior zoning. The court determined that the developer was not prohibited by the city code from submitting a building permit application at the same time as applying for site development plan review.
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What is the relationship between the county's six-year transportation improvement plan (TIP) and the comprehensive plan?
Reviewed: 04/13
The comprehensive plan statute, RCW 36.70A.070, describing the mandatory elements of the comprehensive plan states that the transportation element must be consistent with the six-year plans as required of the various agencies (city, county, state). And RCW 36.81.121, the TIP statute for counties then says that the annual TIP must be consistent with the comp plan.
This does not mean that the TIP is part of the comprehensive plan, only that it must be "consistent with" the comprehensive plan. We looked at a few TIPs and many made no specific mention of the consistency requirement, however we did find a brief and simple reference to it in the TIP from the City of Vancouver:
Transportation Improvement Program Overview
The City of Vancouver 2013 - 2018 Transportation Improvement Program (TIP) is an update of the City's 2012 - 2017 TIP. The TIP is the programming document for transportation improvements over a six-year period. The State of Washington law (RCW 35.77.010) requires the City to prepare a TIP annually that is consistent with and implements the city's adopted comprehensive growth management plan. The TIP identifies capital transportation system improvement projects and includes a policy to work with affected property owners to preserve railroad right-of-way in the event a railroad ceases to operate. A City of Vancouver Arterial Street System and Classification Map which designates roadways functionally classified as Arterials pursuant to VMC 11.70.010 and VMC 9.02.040 is adopted and attached hereto. For information about the City's Comprehensive Plan, contact Vancouver Planning at 360- 487-7950. For questions or more information about specific transportation projects, please contact Vancouver Public Works at 360-487-7130, or visit the City's website: www.cityofvancouver.us
(Emphasis added)
With regard to whether the TIP is formally incorporated into the comprehensive plan, while it does not appear to be a requirement, a simple statement like Vancouver has used may be a useful reminder to the county commissioners as well as the public that the county is meeting two separate but interrelated requirements. We think it's a good idea and would suggest taking it a step further and actually reference both statutes. From the standpoint of eligibility for funding, it probably doesn't matter as much since it's the consistency requirement rather than the formal incorporation of one into the other that grant programs would likely be concerned with. With that said however, the more you can show it, the better.
Excerpts from the RCW (Emphasis added):
- RCW 36.70A.070
Comprehensive plans -- Mandatory elements.
(6) A transportation element that implements, and is consistent with, the land use element.
...
(c) The transportation element described in this subsection (6), the six-year plans required by RCW 35.77.010 for cities, RCW 36.81.121 for counties, and RCW 35.58.2795 for public transportation systems, and the ten-year investment program required by RCW 47.05.030 for the state, must be consistent.
- RCW 36.81.121
Perpetual advanced six-year plans for coordinated transportation program, expenditures -- Nonmotorized transportation -- Railroad right-of-way.
(1) At any time before adoption of the budget, the legislative authority of each county, after one or more public hearings thereon, shall prepare and adopt a comprehensive transportation program for the ensuing six calendar years. If the county has adopted a comprehensive plan pursuant to chapter 35.63 or 36.70 RCW, the inherent authority of a charter county derived from its charter, or chapter 36.70A RCW, the program shall be consistent with this comprehensive plan.
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May a local government apply development regulations and require permits for a privately owned and operated project proposed to be built on federally owned property?
Reviewed: 03/13
It’s our opinion that a non-federal entity proposing a project on federal land would not be exempt from local zoning and land use regulations, unless the non-federal use of the federal property were pursuant to federal legislation that included an intent to preempt such local regulation.
We could not find a lot of legal authority on this issue, but in an Alaska Supreme Court decision, Alaska Railroad Corp. v. Native Village of Eklutna, 43 P.3d 588 (Alaska 2002), the court held that “a government's supremacy immunity from zoning does not transfer to a private party that leases or licenses the use of the land.” Similarly, the California Court of Appeals held that “the federal preemption doctrine does not prohibit the imposition of county regulations on the construction of a building by a private developer which is intended for lease to a federal agency.” Smith v. County of Santa Barbara, 203 Cal. App. 3d 1415 (1988).
But, where the private or non-federal use of federal property is pursuant to federal legislation that includes the intention to preempt local regulation, local regulation is preempted. See, e.g., Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979); United States v. Village of New Hempstead, 832 F. Supp. 76 (S.D.N.Y. 1993).
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Request for code provisions allowing small-scale corner stores (grocery, coffee shop, hair salon) in residential neighborhoods
Reviewed: 02/13
We haven't found much in the way of research on this topic, although there does appear to be a renewed interest in allowing more neighborhood-scale corner stores throughout communities. To some extent, this is tied to the goal of walkable neighborhoods with basic services available nearby. Also, the local food movement supports more opportunities to purchase locally grown food in residential neighborhoods. See Healthy Corner Stores Network.
In most instances, where corner stores are allowed in residential areas, they are subject to a conditional use permit. In Seattle and other communities, proposals to allow small-scale neighborhood stores in residential zones have been very controversial and have not always been adopted.
Articles Related to Corner Stores
- The Resurrection of the Corner Store, by Kaid Benfield, The Atlantic Cities, February 23, 2012
- D.C. Looks to the Past to Fix its Zoning Code, by David Alpert, The Atlantic Cities, February 11, 2012; See also Myth vs. Fact: Could You Have a Dry Cleaner Next Door? Zoning DC, November 20, 2012
- The Rush to Build Walkable Urban Grocery Stores, by Sam Newberg, Urban Land, March 22, 2011
- Turning the Corner Store, by Roger Valdez, Sightline Daily, February 4, 2011
Examples from Zoning Codes and Comprehensive Plans
- Anacortes Municipal Code §17.36.040 - Neighborhood grocery stores allowed as conditional use in R2 zone (see p. 2) Standards: maximum of 1,200 sf retail sales space, maximum 3,200 sf total building space, and at least ¼ mi. distance from existing grocery store.
- Blaine Municipal Code §17.42.040 (F) - Neighborhood grocery stores allowed as conditional use in planned residential zone. Standards: maximum of 8,000 sf gross commercial floor area; no single business greater than 2,500 sf; and other performance criteria.
- Buckley Municipal Code §19.20.050 - Neighborhood mixed-use zone - allows small grocery stores.
- Clallam County Code §33.20.050(3)(a) re: size of neighborhood grocery stores in urban residential zone. Standards: less than 10,000 sf in area; total lot coverage 35% - maximum; 20% for structure and 15% for other improvements.
- Everett Zoning Code §38.100 - Nonconforming grocery stores in residential zones.
- Lacey Municipal Code §16.60.040(A)(3)(a) (planned residential zone) and §16.60.130.
- Poulsbo Draft Comprehensive Plan 2009, Implementation Chapter (see Goal LU; Policy LU, p. 3) and Poulsbo Comprehensive Plan, 12/2009, Ch. 2 (see Policy LU p. 18). See Poulsbo Council Approved Zoning Code 02/2013, Residential Zoning Districts Neighborhood Commercial §18.70.070.F.6.
- Tumwater Municipal Code §18.56.160(b)(3)(a) - Grocery store under 2,000 sf gross floor area. Allowed as conditional use in certain residential zones.
- Whatcom County Code §20.20.155 - Neighborhood grocery allowed as conditional use in urban residential zone. Gross commercial floor area not exceeding 2,500 sf and other performance standards.
- Austin, TX, Neighborhood Planning Guide to Zoning, Infill Special Use Options ( see p. 76) - The city provides for a set of options that may be used for small lot amnesty/infill areas, including cottage housing, "urban homes," secondary apartments, neighborhood mixed use building, residential infill, neighborhood centers, and corner stores.
- Hermiston, OR Zoning Code Duplex residential zone - Neighborhood grocery allowed as conditional use.
- Seattle considered allowing small grocery stores in multifamily areas; however, this was not adopted. See Council rejects mayor's plan for more stores in neighborhoods, by Lynn Thompson, Seattle Times, May 23, 2012. However, Seattle is Supporting a Healthy Corner Store Initiative (Councilmember Conlin).
- Also see Seattle Department of Planning and Development Director's Report relating to Council Bill 117697, regarding 2013 Amendments to the Seattle Comprehensive Plan, 01/23/2013 Excerpt:
Attachment C -- Recommended Amendments
Healthy Food
Urban Village Element
* UV10.5: Encourage the location of grocery stores, farmers markets, and community food gardens to support access to healthful food for all residential areas, inside and outside of urban villages.
(Link to this question)
Have any other cities recently reduced or deferred transportation impact fees?
Reviewed: 10/12
The following cities have deferred or reduced transportation/traffic impact fees within the last few years:
- Auburn Municipal Code, Sec. 19.04.070(A) - Temporary exemptions from transportation impact fees in certain downtown areas
- Burlington - Ordinance No. 1758 - Continuing the temporary reduction of transportation impact fees by 50 percent
- Edgewood - Ordinance No. 11-0365 - Temporary reduction in traffic impact fees
- Pierce County Ordinance No. 2011-81s - Adjustment and decrease in some impact fees
- Kent - Kent City Council Delays Development Impact Fees to Aid Economy
- Des Moines - Ordinance No.1524 - Amends the fee schedule to increase only five percent instead of 10 percent in 2012
- University Place - Traffic Impact Fee Ad Hoc Committee Report, October 12, 2011 ("If adopted, these recommendations will result in a 20% minimum reduction to the Traffic Impact Fee . . . . ") and "University Place might lower impact fees for developers," Tacoma News Tribune, March 26, 2008
- Blaine - "Council votes 4-3 to remove impact fees city-wide," The Northern Light, October 28, 2009
See also the MRSC webpage on Impact Fee Payment Deferral Programs.
We have not done a survey on this topic, so this is not necessarily a comprehensive list of all Washington cities that have reduced or deferred transportation/traffic impact fees.
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Request for information on regulating and siting essential public facilities such as group homes, secure residential treatment facilities, and correctional or work release facilities.
Reviewed: 08/11
Essential Public Facilities
Essential public facilities (EPFs) include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
Both cities and counties must develop criteria for the siting of EPFs as per RCW 36.70A.200, WAC 365-196-550, WAC 365-196-560, and WAC 365-196-570. RCW 36.70A.103 requires that "state agencies shall comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to this chapter." On the other hand, RCW 36.70A.200 states that "no local plan or development regulation may preclude the siting of essential public facilities". Also, GMA county comprehensive plan rural elements “shall provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses” as per RCW 36.70A.070(5)(b).
Taken together, it appears that a city does have zoning control over EPFs, but may not, through zoning, prevent siting of facilities which meet the definition of "essential public facilities." Some zoning restrictions apparently are possible, but not if the effect of these restrictions is to effectively preclude any EPFs from locating within the city.
The Growth Management Hearings Boards have addressed issues related to EPFs. Each of the three boards has a Digest of Decisions posted on their respective Web pages. Each Digest of Decisions contains a keyword directory section that lists cases by category, including essential public facilities. The Digests also contain an Appendix with a list of hearing board cases that have been appealed to the courts. The main Growth Management Hearings Boards Website has links to Web pages for each of the three regional hearings boards where Digest of Decisions are posted.
Here are some local jurisdiction examples of processes for general siting of essential public facilities:
County EPF Siting Examples
- Essential Public Facilities Web page, - Spokane County - Very useful page includes Spokane County regional siting process, interlocal agreement, analysis of correctional facility siting, secure community transition facility siting process, etc.
- Stevens County Code, Sec. 3.03.080 – Regional Facilities and Essential Public Facilities (Permitted and conditionally permitted uses) - Stevens County Code, Sec. 3.20.050 - Essential Public Facilities (criteria) and Stevens County Code, Ch. 3.20.010 - Conditional Use & Administrative Conditional Use Permits
- Stevens County Code, Ch. 3.06 - Special Development & Performance Standards – Specific Development Types (Including airports, wireless communicatio
- Stevens County Essential Public Facilities Permit Application, and conditional use or administrative conditional use permit application
- Jefferson County Code, Sec. 18.15.110
- Essential Public Facilities, Jefferson County Comprehensive Plan
- San Juan County Essential Public Facilities Staff Report, Oct. 2008
- San Juan County Ordinance, 2008
City EPF Codes
- Bothell Municipal Code, Sec. 12.06.080
- SeaTac Municipal Code, Sec. 15.22.035, and Sec. 15.10.249
- Bellingham Municipal Code, Ch. 20.17
- Vancouver Municipal Code, Ch. 20.855 – Essential Public Facilities (amended 2005) and Vancouver Municipal Code, Ch. 20.870 – Human Service Facilities
- Redmond Community Development Code, Sec. 20F.40.80 – Essential Public Facilities, and Sec. 20D.170.55 - Secure Community Transition Facilities
- Oak Harbor Municipal Code, Ch. 19.38 – Essential Public Facilities
- Lacey Municipal Code, Sec.16.66.060 - Essential public facilities, and Sec.16.66.055 - Standards for sexual offender secure community transition facilities
- Sequim Municipal Code, Ch. 18.56 – Essential Public Facilities and Special Property Uses
Secure Community Transition Facilities
In 2001 (ESB 6151, Chapter 12, Laws of 2001, 2nd Spec. Sess.) and in 2002 (ESSB 6594, Chapter 68, Laws of 2002), the Essential Public Facilities section of Growth Management Act (RCW 36.70A.200) was amended to add a requirement that cities and counties establish a process and adopt regulations for the siting of secure community transition facilities (SCTFs). SCTFs are considered "essential public facilities," and local comprehensive plans or development regulations may not preclude the siting of "essential public facilities." Also see WAC 365-196-570 - Secure Community Transition Facilities - Requirements.
Please see information posted on the State Department of Social and Health Services Web site.
Work Release and Correctional Facilities
Local correctional facilities and group homes are by statutory definition considered to be essential public facilities and consequently subject to the provisions of RCW 36.70A.200.
The Central Puget Sound Growth Management Hearings Board was asked to determine if the City of Tacoma had complied with the siting requirements of this statute when it adopted development regulations excluding work release facilities from all areas of the city except for a heavy industrial zone. The Growth Board ruled that by limiting the location of an essential public facility to an impracticable area the city was “precluding” an essential public facility in violation of the requirements of RCW 36.70A.200. (See: State of Washington Department of Corrections and Department of Social and Health Services v. City of Tacoma, Central Puget Sound Growth Management Hearings Board Case No. 00-3-0007, Final Decision and Order (11/20/00).
RCW 70.48.190 gives cities the specific authority to locate and operate holding, detention, special detention, and correctional facilities any place designated by the city legislative authority within the territorial limits of the county in which the city or town is situated. While the Growth Management Act’s intent is to establish a collaborative process involving cities and counties in the siting of essential county-wide, regional, and state facilities, the specific authority of RCW 70.48.190 controls. The city must follow a process for EPF siting that is consistent with the adopted county-wide planning policies. The city should have some finding re impacts of correctional facilities to justify any proposed restrictions.
Group Homes, Adult Family Homes and Family Day Care Homes
A local jurisdiction's ability to regulate some types of group homes is particularly limited by (1) RCW 70.128.175 relating to adult family homes and residential care facilities, (2) RCW 35.63.220, RCW 35A.63.240 & RCW 36.70.990, regarding persons with handicaps, and (3) the 1988 Amendments to the Fair Housing Act.
RCW 70.128.175 basically pre-empts local control over adult care facilities which provide in home care, room and board to a small number of individuals. These facilities cannot be regulated as conditional uses. The statute doesn't pre-empt local regulation of residential care facilities which house 5-15 functionally disabled individuals. However, the statutory provision for a review of need for such facilities (RCW 35.63.140; RCW 35A.63.149; RCW 36.70.755) may imply that if cities are failing to provide for them, the state will pre-empt local regulation. A DCD model ordinance does make residential care facilities permitted uses in residential zones.
In addition, the Fair Housing Act Amendments (FHAA) provide that local zoning laws can't have the effect of discriminating against the disabled, which may include some elderly residents. Provisions for special use permits, dispersion rules and limits on the number of residents in group homes are open to challenge. As a general rule, regulations can't treat housing for the disabled differently than other residential uses.
Dispersion requirements for group homes have been upheld in Minnesota where based on an adopted state policy of integrating group home residents into the community. However, in this state, the U.S. District Court did ot find Bellevue's dispersion requirements to be justified. The recently updated paper, Regulating Group Homes in the Twenty First Century: The Limits of Municipal Authority (04/2013), by Ted Gathe, provides a particularly helpful overview of the legal issues involving the siting and regulation of group homes. It is the most recent commentary we have on this subject.
The state has preempted some local control over siting of family day care homes (children). New legislation was enacted as Ch. 273, Laws of 1994 and is codified for non-code cities in RCW 35.63.185, and for code cities in RCW 35A.63.215 and for counties in RCW 36.70.757. The legislation applies to family day care facilities, where day care is provided in the provider's home for six or fewer children. It does not preempt the authority to zone for "mini"-day care centers providing care for more than twelve children outside the family home.
Examples:
Crisis Residential Centers
RCW 74.13.031- 74.13.035 address "Crisis Residential Centers" (CRCs). Apparently, there are no specific requirements about CRCs similar to group homes, but they may fall within "essential public facilities."
Also note these two decisions regarding crisis residential centers:
- Sunderland Servs. v. Pasco, 107 Wn.App.109 (7/3/01) - [Group Care Facility/Special Use Permit] - The City's denial of a special use permit to operate a youth crisis residential center in a residence located in an R-1 zone (that was based upon requirements contained in the City's home occupation ordinance) constituted an erroneous interpretation of the law violating the Washington Housing Policy Act and the Federal Fair Housing Act.
- Sunderland Family Treatment Services v. City of Pasco, 127 Wn.2d 782,Wash. Supreme Court., 10/19/95. In the first appellate ruling on the Washington Housing Policy Act the state Supreme Court has ruled that the anti- discrimination statute's fair housing protections for the handicapped do not extend to "troubled youth" staying in a "crisis residential center" located in a residential neighborhood.
RCW and WAC Definitions and Limitations on Local Regulation
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