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Planning

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State related to planning. Click on any question to see the answer.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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What is the Multifamily Tax Exemption? Who applies for it, the developer or the city?
Reviewed: 03/20

Under chapter 84.14 RCW, Washington cities with a population of 15,000 or more may establish a tax exemption program to stimulate the construction of new, rehabilitated, or converted multi-family housing within designated areas, including affordable housing. In addition, cities in "Buildable Lands" counties under RCW 36.70A.215 and the largest city in a GMA county where no city has 15,000 or more population may also utilize the tax exemption program.

When a project is approved under this program, the value of eligible multifamily housing improvements is exempted from property taxes for 8 or 12 years. Land, existing improvements, and non-residential improvements are not exempt. Only multiple unit projects with 4 or more units are eligible for either the 8- or 12-year exemption, and only property owners who commit to renting or selling at least 20 percent of units as affordable housing units to low and moderate income households are eligible for a 12-year exemption. If the property use changes in a manner inconsistent with program requirements before the 8- or 12-year exemption ends, back taxes are recovered based on the difference between the taxes paid and the taxes that would have been paid without the tax exemption.

For eligible local governments, it is the city that would adopt such a program and a developer/property owner that would apply to participate in the city’s program.

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Is there a comprehensive list of what type of uses constitute an "essential public facility?"
Reviewed: 03/20

There is a fairly comprehensive description of an “essential public facility” in RCW 36.70A.200(1) (emphasis added):

The comprehensive plan of each county and city that is planning under RCW 36.70A.040 shall include a process for identifying and siting essential public facilities. Essential public facilities 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, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

A more detailed list is set forth in WAC 365-196-550(1), which states in relevant part:

(d) The following facilities and types of facilities are identified in RCW 36.70A.200 as essential public facilities:

(i) Airports;

(ii) State education facilities;

(iii) State or regional transportation facilities;

(iv) Transportation facilities of statewide significance as defined in RCW 47.06.140. These include:

(A) The interstate highway system;

(B) Interregional state principal arterials including ferry connections that serve statewide travel;

(C) Intercity passenger rail services;

(D) Intercity high-speed ground transportation;

(E) Major passenger intermodal terminals excluding all airport facilities and services;

(F) The freight railroad system;

(G) The Columbia/Snake navigable river system;

(H) Marine port facilities and services that are related solely to marine activities affecting international and interstate trade;

(I) High capacity transportation systems.

(v) Regional transit authority facilities as defined under RCW 81.112.020;

(vi) State and local correctional facilities;

(vii) Solid waste handling facilities;

(viii) In-patient facilities, including substance abuse facilities;

(ix) Mental health facilities;

(x) Group homes;

(xi) Secure community transition facilities;

(xii) Any facility on the state ten-year capital plan maintained by the office of financial management.

This seems to be a fairly comprehensive list, but this regulation makes clear that the primary components of the definition of an essential public facility is that it (1) provides a public service; and (2) is difficult to site. See WAC 365-196-550(1)(f). Thus, there may be other uses that fall within the definition, even if they do not appear on this list.

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Would dedication of right of way (ROW) through a parcel create separate lots?
Reviewed: 01/20

It's our position that, unless the city would own the property underlying the right-of-way (ROW) in fee (which is not your typical scenario), then a ROW bisecting a lot would not result in two lots being created. We are not aware of any case law authority for the proposition that establishing a ROW (whether opened as a road or not) across undivided property serves to split that property into two lots. A ROW itself is only an easement (in most cases) and does not carry with it fee title to the underlying property. See, e.g., Christian v. Purdy, 60 Wn. App. 798, 801(1991). See also our blog post: Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1).

Property can be divided in this state only through the subdivision process in chapter 58.17 RCW or through one of the exceptions to the subdivision process in RCW 58.17.040. If a right-of-way is established through the middle (or any portion) of a lot, the property would remain as one lot and a short plat would be necessary to divide the lot into two, one on each side of the right-of-way (though with the boundary line through the center of the right-of-way).

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Our city would like to start a fund for façade revitalization grants that businesses could apply for. What restrictions should we be aware of? Are there any examples we could follow?
Reviewed: 05/19

In response to your information request about business façade and building improvement funds, we have found several programs from other cities in Washington. These examples are a mix of grant and loan programs, but all appear to be funded with non-General Fund monies, such as CDBG funds (which is presumably how they avoid the “Gift of Public Funds” issue). Here are the example programs:

  • Chehalis Community Renaissance Team (CCRT) Façade Program – Grants provide a 50 percent match, up to $2,500 per business or property, for approved improvement costs; administered by CCRT, which is primarily a privately funded organization.
  • Port Angeles Façade and Sign Improvement Program – Up to $10K for façade improvement and/or $1K for signage improvements, using CDBG funds.
  • Renton Façade Improvement Program – Loan program with a minimum loan of $10K, using CDBG funds.
  • Selah Downtown Association (SDA) Business Façade Improvement Grant Program – Grant of up to $10K (with a 50% match required), which is administered by the SDA, a 501(c)(3) non-profit organization.
  • Downtown Association of Yakima (DAY) Façade Improvement Grant Program - Grant of up to $10K (with a 50% match required) for both business owners and commercial building owners; administered by the DAY.

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Our city council has debated whether we have enough affordable housing. Is there a definitive measurement or formula for assessing the amount of affordable housing a city should have? Are these data points already available?
Reviewed: 05/19

In response to your first question, We are not aware of a definitive formula that calculates how much affordable housing a city should have. With that said, many local governments use existing housing and household income data to develop an estimate for the amount of affordable housing that is needed. Often, this housing need analysis is done as part of a comprehensive plan update process.

A generalized methodology for this type of analysis may be found in the King County Countywide Planning Policies (CPPs), Appendix 4-“Housing Technical Appendix,” which states:

“The methodology for each jurisdiction to address countywide affordable housing need is summarized as follows:

Countywide need for Housing by Percentage of Area Median Income (AMI)

  1. Moderate Income Housing Need. Census Bureau estimates indicate that approximately 16 percent of households in King County have incomes between 50 and 80 percent of area median income; establishing the need for housing units affordable to these moderate-income households at 16 percent of each jurisdiction’s total housing supply.
  2. Low Income Housing Need. Census Bureau estimates indicate that approximately 12 percent of households in King County have incomes between 30 and 50 percent of area median income; establishing the need for housing units affordable to these low-income households at 12 percent of each jurisdiction’s total housing supply.
  3. Very-Low Income Housing Need. Census Bureau estimates1 indicate that approximately 12 percent of households in King County have incomes between 0 and 30 percent of area median income; establishing the need for housing units affordable to these very-low income households at 12 percent of each jurisdiction’s total housing supply. This is where the greatest need exists, and should be a focus for all jurisdictions.” [Emphasis added]

Examples of comprehensive plans addressing local affordable housing needs include:

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Does RCW 39.92 authorize a code city which is not required or choosing to plan under RCW 36.70A.040 to develop a transportation program involving the collection of transportation impact fees?
Reviewed: 02/19

RCW 39.92 could be used by your city to impose transportation impact fees, even though your city does not plan under the Growth Management Act. As you point out, reference is made in RCW 82.02.020 to impact fees under RCW 39.92. The second reference is the operative one for your purposes. RCW 82.02.020 prevents a city from imposing certain fees, charges and taxes, but it also sets out certain exceptions, including:

Nothing in this section prohibits counties, cities, or towns from imposing transportation impact fees authorized pursuant to chapter 39.92 RCW.

RCW 39.92.040 provides for transportation impact fees, provided the requirements of the chapter are met. RCW 39.92.040 predates the Growth Management Act. It was not repealed by the Growth Management Act and, moreover, it is stated that nothing prohibits its use.

Here is an excerpt from our Impact Fees webpage:

Separate legislation (the Local Transportation Act, chapter 39.92 RCW, whose initial passage predated GMA by two years) authorizes all counties, cities, towns, and transportation benefit districts across the state - including those not planning under GMA - to impose transportation impact fees, but MRSC is not aware of any jurisdictions that currently do so under that authority.

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Is it possible to make a small change to the zoning ordinance without a comprehensive plan update?
The change involves altering the allowed height of accessory structures. There is no mention of
this issue in the comprehensive plan.

Reviewed: 01/18

RCW 36.70A.130(1)(d) requires that: “Any amendment of or revision to development regulations shall be consistent with and implement the comprehensive plan.” This provision does not require that the comprehensive plan be updated every time the zoning code is amended. If the proposed zoning change is consistent with the comprehensive plan, then no changes to the comprehensive plan are required.

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The city is in the process of adopting a comprehensive plan. There was a scheduled public comment period that closed. Is any additional public comment required?
Reviewed: 12/17

A second opportunity for public comment is not required in any of the statutes governing notice/comment/public participation associated with the adoption of comprehensive plan or development regulations. Below are the statutes that relate to the process by which a city adopts or amends a comprehensive plan and development regulation:

RCW 36.70A.035 sets forth the specific notice provisions for public participation for proposed amendments to comprehensive plans and development regulations, including area-wide rezones. However, it does not prescribe a specific type of notice but lists examples of reasonable notice provisions. Note that RCW 36.70A.035(2) provides:

(a) Except as otherwise provided in (b) of this subsection, if the legislative body for a county or city chooses to consider a change to an amendment to a comprehensive plan or development regulation, and the change is proposed after the opportunity for review and comment has passed under the county's or city's procedures, an opportunity for review and comment on the proposed change shall be provided before the local legislative body votes on the proposed change.
(b) An additional opportunity for public review and comment is not required under (a) of this subsection if:
(i) An environmental impact statement has been prepared under chapter 43.21C RCW for the pending resolution or ordinance and the proposed change is within the range of alternatives considered in the environmental impact statement;
(ii) The proposed change is within the scope of the alternatives available for public comment;
(iii) The proposed change only corrects typographical errors, corrects cross-references, makes address or name changes, or clarifies language of a proposed ordinance or resolution without changing its effect;
(iv) The proposed change is to a resolution or ordinance making a capital budget decision as provided in RCW 36.70A.120; or
(v) The proposed change is to a resolution or ordinance enacting a moratorium or interim control adopted under RCW 36.70A.390.

RCW 36.70A.130 describes requirements for amendment to the comprehensive plan, and limits action to once per year, with some exceptions.

RCW 36.70A.140 does not outline specific procedures that must be followed but states (in part) that:

The [public participation] 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. . . .

RCW 35A.63.070, RCW 35A.63.073 and RCW 35A.63.100 set forth the notice provisions for adopting comprehensive plans, proposed amendments to comprehensive plans, and development regulations, including area-wide rezones in code cities. RCW 35A.63.100 and RCW 35A.63.070 considered together state that any amendment to the zoning code requires at least one public hearing; if the amendment is a site-specific rezone, it is a "project permit" for which only one hearing may be held per RCW 36.70B.050. Prior to holding the public hearing, notice of the time and place of the hearing must be published in a "newspaper of general circulation in the municipality and in the official gazette, if any, of the municipality at least ten days prior to the date of the hearing."

The GMA did not repeal the notice requirements in RCW 35A.63.070 and RCW 35A.63.100 for code cities. Therefore, code cities must follow those requirements in addition to those imposed by the GMA.

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Why can’t impact fees be used for maintenance?
Reviewed: 11/17

Impact fees may only be imposed for public capital facilities (also called “system improvements”) identified in a local government’s capital facilities plan that are designed to provide service to the community at large, are reasonably related to a new development, and will benefit that new development (see WAC 365-196-850). RCW 82.02.050(4) states in relevant part (emphasis added):

The impact fees:

(a) Shall only be imposed for system improvements that are reasonably related to the new development . . . .

In addition, RCW 82.02.050(5)(a) states in part (emphasis added):

Impact fees may be collected and spent only for the public facilities defined in RCW 82.02.090 which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to the provisions of RCW 36.70A.070 or the provisions for comprehensive plan adoption contained in chapter 36.70, 35.63, or 35A.63 RCW.

RCW 82.02.090(9) defines “system improvements” to mean (emphasis added):

public facilities that are included in the capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements.

RCW 82.02.090(7) then defines “public facilities” to mean:

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.

Nowhere in the above-quoted provisions is there any reference to operations or maintenance of public facilities. Rather, there is reference only to the public facilities themselves. If the Legislature intended impact fees to be usable for operations or maintenance of public facilities, it would have said so.

For more information, see MRSC’s Impact Fees topic page.

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What is the industry standard for determining gross site area vs. net site area for determining density?
Reviewed: 09/17

Most (but not all) regulations with which we are familiar use a net density calculation that subtracts such factors as on-site natural resources/critical areas and public rights-of-way. Here are some sample code provisions:

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Is a capital facility plan required before expending Growth Management Act real estate excise tax (REET) funds?
Reviewed: 09/17

Yes. A capital facilities plan is required before expending either the first quarter percent REET funds, authorized by RCW 82.46.010(2) or the second quarter percent REET funds authorized by RCW 82.46.035.  Note that the rate at which it can be levied and the uses to which it may be put differs by city or county size and whether the city or county is planning under the Growth Management Act (GMA). More detailed information is available on our Real Estate Excise Tax webpage. 

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Can a city use a hearing examiner to perform the functions of a planning commission, such as holding public hearings on text amendments to the zoning code?
Reviewed: 07/17

RCW 35A.63.170 authorizes a city to use a hearing examiner to perform certain functions that would normally be carried out by a planning agency or planning commission (emphasis added):

As an alternative to those provisions of this chapter relating to powers or duties of the planning commission to hear and report on any proposal to amend a zoning ordinance, the legislative body of a city may adopt a hearing examiner system under which a hearing examiner or hearing examiners may hear and decide applications for amending the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative body may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to:

(a) Applications for conditional uses, variances, subdivisions, shoreline permits, or any other class of applications for or pertaining to development of land or land use;

(b) Appeals of administrative decisions or determinations; and

(c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW.

The emphasized language above suggests that generally applicable zoning ordinance amendments are not to be delegated to a hearing examiner. That is consistent with the typical role of a hearing examiner, which is usually limited to site-specific rezones and application of zoning regulations to individual properties.

While a city is not required to have a planning commission, RCW 35A.63.170 prevents cities from delegating all planning agency functions to a hearing examiner. Hearing examiners are well equipped to hear quasi-judicial land use matters, but they do not seem as qualified to make policy recommendations to a city council on generally-applicable zoning regulations. Those types of items could be delegated to another individual authorized by the council to serve as the “planning agency,” and could include a city staff member or an individual on contract for such services for one or more cities. See RCW 35A.63.020; RCW 35A.63.010(8)

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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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How do other cities deal with fee in lieu of park land dedication or park impact fees for mixed-use developments?
Reviewed: 04/17

Please see the following:

Codes that address applicability of park impact fees to mixed use developments:

Codes limiting park fees to residential units in mixed-use developments:

Codes that apply park impact fees to commercial uses:

We did not find any provisions applying a fee in-lieu of park land dedication requirement for mixed-use projects.

You may also be interested in MRSC’s Impact Fee topic page.

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If a road is dedicated to the public in a subdivision within the unincorporated county, does that make the road a county road? Or, does the road still need to the established pursuant to chapter 36.81 RCW?
Reviewed: 01/17

If a road is dedicated to the public in a subdivision within the unincorporated county, that road is a county road. The process in chapter 36.81 RCW would thus not be used. AGLO 1970 No. 46 addresses the methods by which a county road may be established:

In our opinion there are several methods by which a highway may become a county road. One method is, of course, by means of the formal procedure set forth in chapter 36.81 RCW.

A second method is by dedication of roads in a plat duly approved by county authorities.

See also AGO 1952 No. 307 (“When the county commissioners by appropriate action approve a proposed plat without reservation concerning the roads designated therein, those roads become county roads.”).

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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:

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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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Request for examples of rental housing licensing programs.
Reviewed: 08/15

Please see the following code provisions establishing such programs:

  • Mountlake Terrace Municipal Code Ch. 15.45 - Residential Rental Business License and Inspection Program
  • Toppenish Municipal Code Ch. 5.35 - Residential Rental Units
  • Prosser Municipal Code Ch. 15.30 - Rental Licenses
  • Sunnyside Municipal Code Ch. 5.02 - Residential Rental Units – Licensing – Crime Free Rental Housing Program

The 2010 Legislature specifically authorized local rental inspection programs, subject to certain requirements. See RCW 59.18.125. Cities adopting a rental inspection/licensing ordinance must comply with RCW 59.18.125.

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Request for information on regulating the keeping of chickens in residential zones.
Reviewed: 07/15

First, you may want to take a look at our web page on "Regulating Livestock and Other Farm Animals." This page includes several city code provisions regulating animals, including chickens.

See also:

Here are a few sample ordinance and code provisions regulating the keeping of chickens:

If you would like to review more examples, you can search for the keyword "chickens" on Code Publishing's multiple code search tool. Be sure to check the "Washington" box before you start the search so you can limit your results to Washington cities and towns.

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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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Can counties allow final plats to be submitted in phases, with some of them submitted at a date beyond the five, seven, or ten-year deadlines stated in RCW 58.17.140(3) without adopting an ordinance that authorizes extensions?
Reviewed: 07/14

We think phasing is fine as long as it does not extend beyond the applicable deadline, unless an extension is granted. Final plats must be submitted for all phases prior to the deadline. The phasing of a plat does not affect the deadlines for final plat submittal as stated in RCW 58.15.140(3). That statute, at subsection (4), provides authority for the county to adopt procedures by ordinance to allow extensions of time to submit final plats, with or without additional conditions or requirements. 

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