Land Use: Developers

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**Before you read further, I cannot emphasize enough that the information contained in each section below is but a snapshot of individual land use laws.  These summaries are intended to provide general background information that may be relevant to your legal issue, but should not be relied upon as legal advice.  Land use law is expansive and complex, and proper legal analysis requires consideration of all applicable laws in the context of case-specific facts and circumstances.  Visit the Services & Fees page to learn about different ways we can work together to resolve your legal matter.

Development Permits and the Vested Rights Doctrine

Permit application processes vary from city to city.  However, they typically share a similar pattern that begins with a pre-application meeting at city hall.  The pre-application meeting is an opportunity for city staff to go over the proposed project and provide guidance about what permits and approvals will be required for the project to move ahead.

It costs a lot of time and money to prepare the documentation needed to apply for a development permit.  To give applicants some assurance that those efforts won’t be in vain, the state legislature adopted what is known as the “vested rights doctrine.”  The statutory vested rights doctrine basically says that when a property owner or developer submits a complete building permit application or subdivision application, that application vests to the zoning and other land use control ordinances then in effect.  That means two things: first, that the application must be considered under the city code in effect on the vested date; and second, that if the application is approved, then the project must conform to the development regulations in effect on the vested date.  The doctrine also applies to development agreements—once approved—which vest development rights to the terms contained in the agreement and the development regulations in effect on the vested date.

A few notes to keep in mind about Washington’s vested rights doctrine:

1. The doctrine only applies to building permits, plats or short plats, and development agreements—binding site plan applications do not vest development rights.

2. The doctrine attaches when a building permit or subdivision application is complete, not when the application is first submitted.  City staff will review submitted applications to determine if all of the required documentation has been provided—that is, whether or not the application is “complete.”  Development rights vest on the date that the city issues a determination of completeness for the application.

3. For development agreements, the doctrine attaches upon the effective date of the agreement.  An application or request for a development agreement does not vest development rights.

4. Vested rights are not waivable; developers cannot selectively benefit from old and new regulations.

5. Vested rights survive annexation.

6. The doctrine does not apply to impact fees, connection charges, or expiration dates for inactive plat applications.  Additionally, the vested rights doctrine does not apply to state-mandated requirements for a municipal stormwater permit (NPDES) issued by the Department of Ecology.

7. The statutory vested rights doctrine is the minimum protection guaranteed to applicants; cities may provide additional vesting rights by local ordinance.

Moratoria and Other Interim Zoning Controls

Generally speaking, a county or city must provide notice and hold a public hearing prior to making any changes to its zoning code.  However, state law permits cities to adopt temporary changes to the zoning code without any prior notice to the public, as long as the city follows certain procedural requirements.  These temporary—or, interim—zoning controls may impose more restrictive requirements, or may even impose a moratorium preventing certain development activities altogether.  The motivation for adopting interim zoning controls is usually to prevent anticipated or potential development that would be adverse to the city or its residents.  What that means for property owners and developers is that a city may see you coming and put up a no-warning roadblock that prevents your project.  Though frustrating, this practice is neither evil nor unlawful.

An exaggerated example will be useful here:  imagine there is a vacant 4-acre lot adjacent to a retirement home / assisted living facility in a mixed-use zoning district.   The owner wants to develop the vacant lot, and has offers to construct a Thai restaurant, an organic grocery store, or a biker bar.  The zoning code permits “groceries and eateries,” which encompasses all three proposed uses.  So the owner chooses the most profitable use—the biker bar—and sits down with the city planner for a pre-application meeting.  The city planner thinks of the poor old folks and bemoans the overbroad code language that allows this disruptive use in the middle of town.  Two days later, the city council adopts a surprise ordinance revising the zoning code so that it now permits “groceries and eateries, except biker bars.”  Although the property owner is now prevented from building the biker bar, his right to develop the land has not been usurped—he is still free to build the restaurant or grocery store, or look for other options.  And although the code change was pointed and abrupt, the city is within its rights to prohibit the biker bar, just as the city may prohibit adult novelty shops or gun ranges through the standard public process.

Impact Fees and Deferral Requirements

Impact fees are one-time charges assessed against a development project to help pay for new or expanded public facilities—such as roads, parks, schools, and emergency services—which are needed to meet the increased demand created by the new development.  Impact fees are assessed on a per-unit basis and typically due at the time the permit application is approved.

In an effort to promote the economic recovery of the construction industry, the state legislature recently passed a new law requiring cities to create a process whereby applicants for single-family residential construction are entitled to defer payment of impact fees until completion of the project.  The deferral entitlement is limited to the first 20 houses per builder/applicant, although cities may choose to grant additional deferrals beyond that limit, subject to certain guidelines.

The deferral process in each city varies as to what condition triggers payment: final inspection, certificate of occupancy, or time of sale.  But in any event, the deferral term cannot exceed 18 months under state law.  The dollar amount of the deferred impact fees is attached as a lien on the property, and the applicant is required to record that lien, and to subsequently record the satisfaction and release of the lien.  The City of North Bend provides a good example of an adopted impact fee deferral process.

Declarations, Easements, and Notices on Title

City codes often require several different notices to be recorded in connection with development projects.  A declaration sets forth binding promises regarding the property.  An easement grants specific rights or benefits to a third party on, under, or over the land.  Other notices on title merely create a record to advise future owners about certain circumstances affecting the property.  These documents are recorded with the county recorder’s office so that they are discoverable in a search of the property address or tax parcel number.  Although seemingly a tangential procedural step, the execution and recording of these documents should be done with care.  Declarations, easements and notices on title will be referred to and relied upon by several parties over the course of time.  It is very important these documents contain accurate terms, statutory language, and legal descriptions and visual depictions.

One type of declaration specific to subdivisions is the Declaration of Covenants, Conditions & Restrictions (CC&R’s) associated with the establishment of a homeowners’ association.  CC&R’s should be carefully prepared and thoroughly reviewed for consistency with the requirements of the city code, hearing examiner’s decision, and face of the final plat.

Common Oversights on Final Plats

For developers, selling completed homes is the finish line.  But for cities and homebuyers, it’s the beginning of a code compliance marathon.  The final plat and CC&R’s must satisfy the terms of the preliminary plat approval, but should also address specific rights and obligations relative to the ongoing existence of the housing development.  Common oversights that often lead to disputes, and even litigation, include:

• Failure to explicitly identify ownership and maintenance of common areas;
• Failure to identify responsible parties for maintenance of street trees, planting strips, and sidewalks;
• Failure to identify ownership and maintenance of stormwater drainage ponds;
• Failure to identify liability for maintenance of dangerous trees within Native Growth Protection Areas;
• Failure to mark metes and bounds of streets dedicated to the city in the final plat;
• Inconsistency between CC&R provisions and the notes, dedications or easements recorded on the final plat; and
• Omission of required conditions set forth in a hearing examiner decision, development agreement, or city code.

By the time the project reaches final plat approval, the owners, developers, engineers, consultants, and city staff are so familiar with the project that it’s difficult to spot these oversights and inconsistencies.  Inviting a fresh pair of eyes at this stage can help reduce the possibility of surprises or conflicts before the city council or hearing examiner.

Five Ways to Fast-Track Your Land Use Application

1. Get it right the first time.  Cities’ number one complaint about processing development permit applications is that the initial submission is hurried and incomplete.  This means city staff have to review everything and request supplemental and updated reports, drawings, or studies—often repeatedly—which significantly delays the review process.  It also passes through more costs to the applicant, because city consultants end up reviewing the application materials two or three times.  Applicants will find the review process faster and cheaper if they are diligent in preparing a complete and current application and supporting documents for their initial submission.

2. Avoid surprises—know the code.  Applicants are often frustrated when staff require information that seems to exceed the scope of the application checklist or pre-application review letter.  But all application requirements are rooted in the city code, and can only be summarized on city forms.  Applicants who familiarize themselves with the code provisions referenced in pre-application review letters, application checklists, and city correspondence will be ready for the follow-up questions and requests that come at them.

3. Know your enemy [is not your enemy].   From homeowners to housebuilders, everyone thinks they have to fight city hall.  But the land use application process should be a cooperative endeavor, and understanding the city’s priorities is key to that collaboration.  Primarily, cities have the same three priorities when it comes to land use decisions: a) ensuring adequate and efficient delivery of public facilities; b) promoting economic development consistent with the city’s vision; and c) adhering to the requirements of state and local laws.  Applicants’ priorities—usually profit or pleasure—are not necessarily adverse to the city’s.  So, try to avoid thinking that that city is “just being difficult,” and do your best to help the city accomplish its goals so that the city can help you accomplish yours.

4. Be a good neighbor.  Lots of development projects get hung up when negotiation is required with neighboring property owners.  Ironically, requests from developers are rarely very detrimental to those neighboring homeowners.  In my experience, the primary cause of delay and disgruntlement is simply fear of the unknown.  A lot of people don’t understand what an easement is, or are afraid of being taken advantage of to meet developers’ needs.  That’s why, when you meet with affected property owners to negotiate an easement or mitigating improvements on their property, transparency is the best policy.  Don’t start by stating what you need and why it doesn’t hurt them to give it.  Start by explaining why the project requires access to their property, and what that access will look like.  When the homeowner feels informed, understood, and respected, negotiations will go a lot smoother.

5. Pick your battles.  Applicants sometimes perceive cities as just flexing municipal muscle, and valuable time is wasted debating whether “the city can do that.”  It is important not to underestimate cities’ authority and discretion, which is usually broader than people think.  That doesn’t mean that communications from city staff should never be questioned, or that there is no room for differing interpretations of city code provisions.  It is wise to keep in mind, though, that cities are public entities subject to high scrutiny, and are therefore also highly risk-averse.  So when an opinion or interpretation comes down from a department director, it has often already been vetted through the city attorney and city manager/administrator, and determined to be a winnable position.  It is always worth weighing what is really worth the time and money to keep challenging.