- Request for basic pro and con information relating to the Growth Management Act. Reviewed: 08/11
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Arguments raised pro GMA |
Arguments raised against GMA |
- Can qualify for growth management and other grants
- Can enact impact fees per RCW 82.02.050
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- 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
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- 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
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- 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
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- 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
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- 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
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- 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.
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- 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
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- 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
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- 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
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- 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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The following counties are required to plan under GMA: Chelan, Clallam, Clark, Grant, Island, Jefferson, King, Kitsap, Lewis, Mason, Pierce, San Juan, Skagit, Snohomish, Spokane, Thurston, Whatcom, Yakima
The following counties are voluntarily planning under the GMA: Benton, Columbia, Douglas, Ferry, Franklin, Garfield, Kittitas, Pacific, Pend Oreille, Stevens, Walla Walla
The following counties are not planning under GMA: Adams, Asotin, Cowlitz, Grays Harbor, Klickitat, Lincoln, Okanogan, Skamania, Wahkiakum, Whitman
You might want to contact some of the counties that are voluntarily planning under the GMA to ask them about their experience. Two that we would recommend are Douglas and Walla Walla counties.
The following are links to information regarding growth management in Washington State:
- "A Short Course on Local Planning," July 2009, Planning Association of Washington and Washington State Department of Commerce (see "Chapter 3. Growth Management")
- "The Growth Management Act: An Overview," Washington State Department of Commerce (formerly Department of Community,Trade and Economic Development - CTED), Fact Sheet – Brochure
- "Overview of the Growth Management Act," Washington State Department of Commerce (formerly CTED)
- "What is a Comprehensive Plan?" Washington State Department of Commerce (formerly CTED)
- "GMA 101: Planning Under the Growth Management Act," Washington State Department of Commerce (formerly CTED)
- "How Growth Management Helps Communities Achieve their Goals, Reports from Local and State Leaders," Washington State Department of Commerce (formerly CTED), Sept. 2006
- "Creating Livable Communities: Managing Washington’s Growth for 15 Years (Growth Management 15 Year Report)," Washington State Department of Commerce (formerly CTED), June 2006
- Success Stories: The Governor's Smart Communities Awards, Washington State Department of Commerce (formerly CTED).
- "Achieving Growth Management Goals: Local Success Stories (
3.77MB) ," Washington State Department of Commerce (formerly CTED), December 2000
- "Periodic (Comprehensive Plan) Update Checklist for Cities," and "Periodic (Comprehensive Plan) Update Checklist for Counties," Washington State Department of Commerce (formerly CTED).
The chapter on growth management in the "Short Course on Local Planning" provides a good summary of growth management and the Growth Management Act.
- Does the Growth Management Act (GMA) require that cities have an average density of four houses per acre?Reviewed: 08/11
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).
- 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: 08/11
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.
- 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: 08/11
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, Chapter 30.34A - Urban Centers Demonstration Program ( in Title 30).
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 ( 1.8 MB) 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.
Also see "Annexations Under the Growth Management Act: Barriers and Potential Solutions," Washington State Department of Commerce (formerly Department of Community, Trade and Economic Development), December 2004.
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.
Douglas County
Interlocal agreement between East Wenatchee and Douglas County regarding annexation delivery of services and revenue sharing
King County
Interlocal agreement between King County and Auburn related to potential annexation area designation and future service provision ( 240 KB)
Skagit County
Skagit County and Anacortes Interlocal Agreement
Whatcom County
Bellingham and Whatcom County Interlocal Agreement ( 3.2 MB)
- Must a city or county subject to the Growth Management Act have a separate transportation concurrency ordinance or may it use SEPA and other existing ordinances to implement concurrency?Reviewed: 08/11
Although RCW 36.70A.070(6)(b) requires local jurisdictions subject to the GMA to adopt and enforce transportation 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. See RCW 36.70A.070(6)(b). In addition, a Western Washington Growth Management Hearings Board case (Taxpayers for Responsible Government v. City of Oak Harbor, (WWGMHB No. 96-2-0002, FDO, 1996) indicates that local jurisdictions should spell out their methodology for assuring concurrency compliance either within their comprehensive plans or development regulations.
- What are capital facilities?Reviewed: 08/11
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.
- What must be included in a capital facilities plan element?Reviewed: 08/11
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.
- Should the capital facilities plan be prepared for the city or for the entire urban growth area? Reviewed: 08/11
MRSC recommends that the capital facilities element plan be prepared for the entire urban growth area. This would seem to be 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.)
- Should the inventory of public facilities be limited to just city-owned facilities?Reviewed: 08/11
No. The inventory of public facilities should include all public facilities, and should not be limited to city-owned facilities. This would include school and park district property, state property, and other publicly-owned facilities.
- Is a capital facility plan required before expending Growth Management Act real estate excise tax (REET) funds?Reviewed: 08/11
Yes. A capital facilities plan is required before expending either the 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 on the real estate excise tax is available on a separate MRSC Web page.
- How can a city establish level-of-service standards for roads that would ensure adequate circulation without closing down development in urban growth areas?Reviewed: 08/11
Some communities, such as Redmond and Bellingham, are using standards to measure overall mobility rather than simply road capacity. Although roads may be more congested in high density urban areas, overall mobility may still be adequate where transit and pedestrian facilities meet some of the circulation needs. Thus, a lower level-of-service could be justified for roads in target urban growth areas than in other areas with fewer transportation options.
- What are critical areas?Reviewed: 08/11
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.
- What are the notice and hearing requirements for adoption of a critical areas ordinance under the Growth Management Act?Reviewed: 08/11
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.
- May a city adopt performance standards to comply with growth management requirements for critical areas designation?Reviewed: 08/11
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, December 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.
- What is the legality of downzoning for critical areas protection?Reviewed: 08/11
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.
- What are urban growth areas (UGAs)? Reviewed: 08/11
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.
- How are urban growth areas established?Reviewed: 08/11
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.
- May communities provide additional land supply beyond that needed to exactly accommodate the 20-year growth projection? Reviewed: 08/11
Yes. RCW 36.70A.115 requires that comprehensive plans and development regulations provide sufficient land capacity for development.
The GMA requires that cities reevaluate their UGAs at least every 8 years to assure a continued 20-year land supply (RCW 36.70A.130). In theory, if undevelopable lands have been excluded from the UGA, there should always be 12 to 20 times the supply needed to accommodate growth in any given year. This should be enough to provide market choice and to avoid pushing up land and housing costs.
Recognizing that growth pressures and market conditions can change over the course of 20 years, it is important to monitor and reevaluate land supply more often than the 10 years required by the GMA. It may be desirable to review land supply every three years, if not annually, to avoid surprises. King, Pierce, Snohomish, Kitsap, Clark and Thurston counties, and the cities within these counties, must provide for annual collection of data on growth, development densities, and related information and evaluate such data at least every five years to assure that there is an adequate supply of buildable land to accomodate projected growth and meet county-wide planning policy objectives (RCW 36.70A.215). Some communities may not be able to monitor land supply regularly, or will not be confident about growth projections or land use information. RCW 36.70A.110(2) does allow counties to include "a reasonable land market supply factor" in sizing the UGA. The Central Puget Sound Growth Management Hearings Board has stated that if the market factor exceeds the land supply needed to accommodate OFM's 20-year growth projection by more than 25%, the board will increase its scrutiny of the UGA designation (Bremerton et al v. Kitsap County, CPSGMHB Case No. 95-3-0039c, FDO, 1995). Several court cases discuss how a county must justify why the market factor is needed and how it was derived. See, for instance, Diehl v. Mason County, 94 Wn. App. 645, 972 P.2d 543 (1999) and Thurston County v. Western Washington Growth Management Hearings Board, 137 Wn. App. 781 (4/3/2007). There appears to be no single right answer 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
- Does the drawing of urban growth boundaries increase property costs?Reviewed: 08/11
If drawn too tightly, urban growth boundaries could contribute an increase in property costs. A major reason for providing adequate land supply and monitoring that supply is to avoid a substantial increase in property costs or an imbalance between land supply and demand.
- What are communities doing to phase growth within urban growth areas?Reviewed: 08/11
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.
- Can cities gain authority to administer their regulations outside city boundaries within the city's urban growth area?Reviewed: 08/11
Counties still have the official land use authority within the unincorporated urban growth area. County-wide planning policies allow cities to influence policy direction for UGAs. Cities in this and in other states have extended their influence within the UGA through agreement within the counties. Agreements can cover matters such as joint planning within the UGA, agreement on annexation policies, adoption of city standards within the UGA, restrictions on development until urban services are in place, and city review and comment on major development within UGAs. For more information, see the MRSC Webpages on Growth Management Interlocal Agreements.
- May a city require development in urban growth areas to conform to city standards in exchange for provision of utility services?Reviewed: 08/11
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 Annexation and Growth Management Agreements - Revenue Sharing.
- 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: 08/11
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.”
- Must comprehensive plans prepared under GMA provide substantive policy direction for development regulation?Reviewed: 08/11
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).
- May a city set level-of-service standards below the level used as a basis for impact fees?Reviewed: 08/11
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.
- Does the Growth Management Act (GMA) require concurrency for sewer and water?Reviewed: 08/11
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.)
- Must the city have a separate concurrency ordinance or may it use SEPA and other existing ordinances to implement concurrency?Reviewed: 08/11
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.
- Must cities or counties planning under the GMA include economic development elements in their comprehensive plans before the state provides funding for this?Reviewed: 08/11
The Washington Growth Management Act (GMA) encourages economic development consistent with adopted comprehensive plans. SSHB 2697 (Chapter 154, Laws of 2002 (23 KB)) 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.
- Is the city legally bound to provide public services & facilities to developments within the UGA on demand?Reviewed: 08/11
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.
- Must the county take local action to implement the provisions of HB 1653, which clarifies the integration of the Shoreline Management Act (SMA) policies with the Growth Management Act (GMA) relating to critical areas? Reviewed: 07/11
No. HB 1653 (Ch. 107, Laws of 2010) was enacted in response to a confusing Washington State Supreme Court decision, Futurewise v. Western Washington Growth Management Hearings Board, 164 Wn.2d 242 (2008). This legislation addresses the integration of the SMA and GMA with respect to critical areas within shorelines. The bill establishes new provisions in the GMA that clarify that local critical areas ordinances adopted pursuant to the GMA will apply to critical areas within the shorelines of the state until the Department of Ecology approves a comprehensive shoreline master program (SMP) update, a segment of an SMP relating to critical areas, or a new or amended SMP. The legislation clarifies that existing shoreline critical areas regulations of local governments remain in place and were not invalidated by the Futurewise decision and also that a jurisdiction may amend an SMP section pertaining to critical areas without being considered a full scale SMP or SMP segment update. The bill applies retroactively to July 27, 2003, the effective date of the original legislation that the Futurewise case addressed. No local legislation must be adopted to implement this legislation.
- Request for information about other jurisdictions that have developed standards for cottage housingReviewed: 08/11
Information about and examples of cottage housing ordinances are posted on MRSC's Cottage Housing webpage.
- Request for sample ordinances and information on innovative single-family infill developmentReviewed: 08/11
Sample ordinances and information on innovative single-family infill development are availabe on the following MRSC web pages:
- Manufactured Housing - 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: 08/11
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. (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.
- How do other cities establish size limits on accessory dwelling units? Reviewed: 08/11
Many jurisdictions combine both percentage of main structure and maximum square footage in their size restrictions for accessory dwelling units. Also, many jurisdictions have additional design requirements that ensure that the ADU does not alter the appearance of the residential structure.
Algona Municipal Code, Sec. 22.48.010
6. Size restrictions: The accessory dwelling unit shall contain not less than three hundred square feet of floor area. The accessory dwelling unit shall contain not more than the lesser of one thousand square feet of floor area or forty percent of the total square footage of floor area of the single-family dwelling and accessory unit combined.
Bellevue Land Use Code, Sec. 20.20.120
3. The accessory dwelling unit shall contain not less than 300 square feet and not more than 800 square feet, excluding any related garage area; provided, if the accessory unit is completely located on a single floor, the Director may allow increased size in order to efficiently use all floor area, so long as all other standards set forth in this section are met;
Brewster Municipal Code, Sec.17.10.110
B. The accessory dwelling shall contain not less than three hundred square feet and not more than eight hundred square feet, excluding any related garage area; provided, if the accessory dwelling is completely located on a single floor, the administrator may allow increased size in order to efficiently use all floor area, so long as all other standards set forth in this section are met.
Clyde Hill Municipal Code, Sec. 17.39.030
F. Size Restrictions. The accessory dwelling unit shall contain not less than 300 square feet and not more than 900 square feet of gross floor area, excluding any related garage area, and more than 1,200 square feet of projected roof area. "Projected roof area," as used in this section, means the area within the boundaries of the outermost portion of the vertical projection of the roof to the ground, including all gutters, breezeways, covered walkways, patios, porches and other extensions of the roof of the accessory living structure.
For accessory dwelling units that are attached to and made part of a detached garage, the size of the living quarters portion of the structure shall not exceed 750 square feet of gross floor area. In calculating the size of the "living quarters portion," any stairway to the living quarters shall not be included except to the extent that the stairway exceeds 100 square feet. If the accessory unit that is converted from a previously existing building is completely located on a single floor, the public works director may allow increased size of up to 20 percent in order to efficiently use all floor area, so long as all other standards set forth in this chapter are met.
G. Square Footage. The square footage of the accessory dwelling unit, excluding any related garage area, shall not exceed 40 percent of the total square footage of the single-family dwelling and accessory dwelling unit combined, excluding any garage area. For accessory dwelling units that are attached to and made part of a detached garage, the square footage of the living quarters portion shall not exceed 750 square feet of gross floor area. In calculating the size of the "living quarters portion," any stairway to the living quarters shall not be included except to the extent that the stairway exceeds 100 square feet.
Eatonville Municipal Code, Sec. 18.08.045 (A)
5. The accessory dwelling unit shall contain not less than 300 square feet and not more than 800 square feet, excluding any related garage area; provided, if the accessory unit is completely located on a single floor, the director may allow increased size in order to efficiently use all floor area, so long as all other standards set forth in this section are met;
6. The square footage of the accessory dwelling unit, excluding any garage area, shall not exceed 40 percent of the total square footage of the primary residence and accessory dwelling unit combined, excluding any garage area;
Edmonds Municipal Code, Sec. 20.21.030
C. Size. In no case shall an accessory dwelling unit be (1) larger than 40 percent of the livable floor area of the principal dwelling, (2) nor more than 800 square feet, (3) nor have more than two bedrooms; provided, if the accessory dwelling unit is completely located on a single floor, the planning manager may allow increased size up to 50 percent of the floor area of the principal dwelling in order to efficiently use all floor area, so long as all other standards set forth in this chapter are met.
Enumclaw Municipal Code, Sec. 19.34.090
An accessory dwelling shall be no larger than 40 percent of the livable floor area of the principal dwelling unit, shall not exceed 800 square feet in size, and shall not have more than two bedrooms. When an accessory dwelling unit is completely located on a single floor of a multiple-floor dwelling, the administrator may allow increased size up to 50 percent of the principal dwelling unit's livable floor area in order to efficiently use all floor area. (Ord. 2119 1, 2001).
Federal Way Municipal Code, sec. 19.200.180
9. The ADU, excluding any garage, workshop and similar nonliving areas, shall contain between 300 – 800 sq. ft., but shall not exceed 40% of the sq. ft. of the primary dwelling unit, excluding any garage, workshop and similar nonliving areas. The unit shall have no more than two bedrooms.
Fircrest Municipal Code, Sec. 22.58.012 (c)
6) An attached ADU shall not exceed 800 square feet; provided, if the ADU is completely located on a single floor of a multistory building, the director may allow increased size in order to efficiently use all floor area. Such increase shall not exceed five percent of the floor area of the principle structure. An attached ADU shall be designed to maintain the architectural design, style, appearance and character of the principal unit as a single-family residence. If an attached ADU extends beyond the current footprint or existing height of the principal unit, or requires modifications to the exterior of the building, the addition or modifications must be consistent with the existing facade, roof pitch, siding, windows, and other exterior design elements and finish materials.
Kent Municipal Code, Sec. 15.08.350(B)
7. The size of an ADU contained within or attached to an existing single-family structure shall be limited by the existing structure's applicable zoning requirements. An ADU incorporated in the construction of a new single-family house shall be limited to forty (40) percent of the principal unit. The size of a detached ADU, for either new construction or an existing home, shall be up to eight hundred (800) square feet or thirty-three (33) percent of the size of the principal unit, whichever is smaller. A legal guest cottage, as defined by KCC 15.02.174, existing prior to November 21, 1995 shall not be denied an accessory housing permit solely because it is larger than the maximum size stated in this criteria. Any legally constructed accessory building, existing prior to November 21, 1995, may be converted to an accessory dwelling unit provided the structure does not exceed fifty (50) percent of the size of the principal unit.
La Conner Municipal Code, Sec. 15.110.080
(3) The accessory dwelling may be no more than 700 square feet in size.
Lynnwood Municipal Code, Sec. 21.42.110 (G)
7. Size. The ADU shall have a maximum gross floor area of 800 square feet or 40 percent of the habitable square footage of the primary unit, whichever is less. A maximum of one bedroom shall be provided for ADUs less than 600 square feet in size; a maximum of two bedrooms shall be provided for ADUs 600 square feet or greater in size. When calculating the square footage of the ADU, covered exterior elements such as decks and porches will not be included. The total size of all such covered exterior elements shall not exceed 200 square feet and the design shall be consistent with the primary dwelling unit.
Marysville Municipal Code, Sec. 22C.180.030
(3) The floor area of the accessory dwelling unit shall not exceed 35 percent of the total floor area of the original single-family dwelling, and shall comply with the density and dimensional requirements set forth in MMC 22C.010.080. In no case shall the accessory dwelling unit be less than 300 square feet in size, or have more than two bedrooms. Floor areas shall be exclusive of garages, porches, or unfinished basements.
Mercer Island Municipal Code, sec. 19.02.030(B)
4. Size and Scale. The square footage of the accessory dwelling unit shall be a minimum of 220 square feet and a maximum of 900 square feet, excluding any garage area; provided, the square footage of the accessory dwelling unit shall not exceed 80 percent of the total square footage of the primary dwelling unit, excluding the garage area, as it exists or as it may be modified.
North Bend Municipal Code, Table 18.10.050(1.52)
d) ADUs shall not be larger than 10 percent the lot area or 800 square feet, whichever is smaller, and contain a maximum of one bedroom. Studios are allowed on lots less than 5,000 square feet and ADUs shall meet the height requirements of 1.51(b).
Redmond Community Development Guide, Sec. 21.08.220(C)
(3) Size/Scale.
(a) The total square footage of a detached ADU shall not exceed 40 percent of the total square footage of the primary dwelling unit and the accessory dwelling unit combined excluding any garage area, and in no case shall it exceed 1,000 square feet.
(b) In no case shall the ADU exceed 1,500 square feet in total area. If an ADU occupies an entire single floor, the Technical Committee may allow for an increase in the allowed size of the ADU in order to efficiently use all of the floor area, so long as all other standards of this section are met.
Sequim Municipal Code, Sec. 18.66.050(B)
1. The total floor area of the ADU shall not exceed 700 square feet or 50 percent of the area of the primary unit, whichever is less.
2. The ADU shall not reduce the size of the primary unit to less than two times the size of the ADU.
Yarrow Point Municipal Code, Sec. 17.12.030(E)
b. Size. The gross floor area of an accessory dwelling unit shall not exceed six percent of the lot area and shall contain not less than 220 square feet and not more than 850 gross square feet, excluding any related garage area.
- Request for farm worker housing standards from other communities. Reviewed: 08/11
This is in response to your request for examples of standards from other communities for farm worker housing. The following links include several Washington and some out-of-state examples of farm worker housing standards. The Santa Cruz County regulations are particularly thorough.
The following organizations may also have useful information on this subject:
- Request for information on affordable housing.Reviewed: 08/11
Comprehensive information on affordable housing is available on MRSC's Web page on Housing. See especially the sub pages on Affordable Housing Ordinances and Funding Resources for Housing.
- Request for sample strategic plans for affordable housing. Reviewed: 08/11
Comprehensive information on affordable housing is available on MRSC's Web page on Housing. See especially the pages on Affordable Housing Ordinances and Housing Plans.
- 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: 08/11
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.”
- Can cities and towns still restrict the placement of manufactured or mobile homes based upon their age and size? Reviewed: 08/11
SB 5524, recently adopted by the state legislature, now 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.
- Do other cities use fire impact fees for apparatus such as fire engines?Reviewed: 08/11
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:
- 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: 08/11
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.
- What are impact fees?Reviewed: 08/11
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.
- Who pays impact fees? Reviewed: 08/11
The developer of a proposed development pays the impact fee, although the developer will, as a practical matter, pass the costs of these fees onto the purchasers of the developed property. The local government examines the proposed development, determines what facilities will be required to sustain the desired level of service, and charges the developer a fee to cover a portion of the cost of the needed system improvements.
For more information on this topic, see MRSC's Web page on impact fees.
- Must a city charge impact fees? Reviewed: 08/11
No. Impact fees are strictly optional. The Growth Management Act requires that cities plan for future growth and provide the facilities necessary for accommodating that growth. Impact fees provide another way for cities and counties to pay for these facilities.
For more information on this topic, see MRSC's Web page on impact fees.
- What can the different types of impact fees be used for?Reviewed: 08/11
See Types of Impact Fees Authorized by Washington Statutes on the MRSC Impact Fees Web page.
- May impact fees for water and sewer be imposed under the Growth Management Act? Reviewed: 08/11
No; GMA-authorized impact fees do not provide for water and sewer facilities. (See response to above question, "What can the different types of impact fees be used for?")
For more information on this topic, see MRSC's Web page on impact fees.
- Is it possible to use impact fees to fund transit improvements?Reviewed: 08/11
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.
- 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: 08/11
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).
- What is the effect of impact fees on affordable housing?Reviewed: 08/11
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.
- What is the effect of impact fees on general business activity?Reviewed: 08/11
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.
- May a city require impact fees for development in the urban growth area? Reviewed: 08/11
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 Interlocal Agreement between Vancouver and Clark County regarding coordinated impact fee program, 1996.)
- May a city reduce impact fees below the amount needed to cover projected transportation system needs for new development?Reviewed: 08/11
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.
- May transportation impact fees be used to fund pedestrian and bicycle facilities?Reviewed: 08/11
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).
- May impact fees be used to fund a community center or a library?Reviewed: 08/11
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.
- Can transportation impact fees be used to fund the transportation impact fee study update for the same area? Reviewed: 07/11
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.]
- Is it legal for cities to incorporate an annual construction cost index adjustment into their impact fee calculations? Reviewed: 07/11
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, .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.
- Planning Commission - Must members of a planning commission reside within the city limits?Reviewed: 08/11
There is no state statute that requires planning commission members be residents of the city. However, RCW 35.21.200 allows a city to establish by ordinance a residency requirement for appointive officials, which would include members of the planning commission.
- Request for sample planning commission application forms.Reviewed: 08/11
The following includes examples from Washington communities and from several out-of-state jurisdictions:
For more information, see the MRSC Web pages on the Planning Commission and Boards and Commissions.
- 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: 08/11
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.
- 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: 08/11
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:
- May county planning commission and board of adjustment meetings be shifted to different locations around the county? Reviewed: 08/11
While the county commissioners are required to hold their regular meetings in the county seat (RCW 36.32.080), we can find no similar language relating either to planning commissions or boards of adjustment. The Open Public Meetings Act, when referring to the places of meetings, merely states in part:
The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body. Unless otherwise provided for in the act under which the public agency was formed, meetings of the governing body need not be held within the boundaries of the territory over which the public agency exercises jurisdiction.... (Our emphasis)
RCW 42.30.070. The term “regular meeting” means “recurring meetings held in accordance with a periodic schedule declared by statute or rule.” RCW 42.30.075. For state agencies, the agencies are supposed to give notice to the code reviser regarding the time and place of their regular meetings; there is no similar requirement for non-state agencies. However, as a practical matter, other agencies do list the time and place of their regular meetings when they adopt a rule, resolution or bylaw setting the schedule for regular meetings.
In our opinion, the planning commission and/or the board of adjustment could meet at different locations throughout the county. One way to accomplish that would be to establish a rule indicating that the commission/board will meet on the first Tuesday (or whatever other day that may be selected) of each month at ___ in city A, at ___ on the second Tuesday of each month in city B, etc. The alternative would be to provide notice of each meeting, similar to what is done for special meetings.
- Can the city and county planning commissions combine to form a joint planning commission?Reviewed: 07/11
Yes, a city and county can combine planning commissions into a single joint or regional commission. Washington statutes provide specific authority for two or several local jurisdictions to establish joint planning commissions. See RCW 35.63.070; RCW 35A.63.040; RCW 36.70.060.
The following are examples of joint city-county planning commissions:
In the past, Yakima city and county formed the Yakima Urban Area Regional Planning Commission. In 2009, Yakima County withdrew from the Regional Planning Agreement, thereby necessitating the establishment of separate city and county planning commissions.
- Must a code city have a citizens' advisory planning commission or may it use city staff? Reviewed: 07/11
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.
- 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: 07/11
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" web page also links to several examples of procedures from cities and most of these include reference to conflict of interest procedures. Our Planning Commission web page includes other examples of procedures as well.
- Request for sample checklists that planning and engineering departments use for their internal review of preliminary and final short plats, preliminary and final plats, and commercial developmentsReviewed: 08/11
- Request for small lot development standardsReviewed: 08/11
Small Lot Development Standards
- Everett Zoning Code, Sec. 19.07.010 - Small lot single family dwelling and duplex development and Table 6.1
- Issaquah Municipal Code, Sec. 18.06.100(D), Sec. 18.06.130, and Sec. 18.07.360
- Kent Municipal Code, Sec. 15.08.320
- Marysville Municipal Code, Sec. 22C.010.310
- Puyallup Municipal Code, Ch. 20.20 (see provisions for RS-04 High urban density single-family residential zone)
- Renton Municipal Code, Sec. 4-02-020 (see R-10 zone) and Sec. 4-02-110A
- Richland Municipal Code, Sec. 23.18.020 - High Density Residential Small Lot Special Requirements (in Title 23)
- SeaTac Municipal Code, Sec. 15.13.010, Sec. 15.19.750, Sec. 15.19.760, and Sec. 15.19.770
- Seattle Municipal Code, Ch. 23.43, Residential small lot
- Tacoma Municipal Code, Sec. 13.06.145 (in Title 13 (
))
Other Web Information on Small Lot Housing
- 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: 08/11
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.
- May a city or county approve, without going through subdivision procedures, a lot line adjustment between two contiguous lots where no new lot is created and where both lots would remain in compliance with minimum zoning and subdivision requirements?Reviewed: 08/11
Yes, RCW 58.17.040(6) specifically exempts lot line adjustments of this type from application of the subdivision laws. Ideally, however, a city or county's subdivision ordinance should include a section dealing with lot line adjustments that provides for a specific, summary procedure for their approval.
- Is a city or county responsible for enforcing private covenants on a plat?Reviewed: 08/11
No. Cities and counties are not responsible for enforcing private covenants between landowners. These should be enforced privately since they do not involve city or county regulations or requirements.
- Does state law allow a city or county to delegate authority for approval of preliminary plats to the planning commission?Reviewed: 08/11
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.
- Does RCW 58.08.040, requiring a deposit to cover anticipated taxes and assessments for plats, apply to short plats?Reviewed: 08/11
No, at least according to AGO 1975 No. 12. RCW 58.08.040 states in part as follows:
Prior to any person recording a plat, replat, altered plat, or binding site plan subsequent to May 31st in any year and prior to the date of the collection of taxes in the ensuing year, the person shall deposit with the county treasurer a sum equal to the product of the county assessor's latest valuation on the property less improvements in such subdivision multiplied by the current year's dollar rate increased by twenty-five percent on the property platted.
In AGO 1975 No. 12, the attorney general's office concluded "that the word 'plat' in the opening phrase of RCW 58.08.040 does not refer to short plats or short subdivisions filed pursuant to RCW 58.17.060."
- Must a city or county establish an administrative procedure under state law to review and approve short plat applications? Reviewed: 08/11
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.
- May a preliminary plat be denied on the basis of community opposition?Reviewed: 08/11
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.
"apwa"
- Are subdivisions considered development for shoreline purposes? Reviewed: 08/11
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.
- 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: 08/11
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).
- Request for information about what a preliminary plat is and its relationship to final plat.Reviewed: 08/11
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)).
- 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: 07/11
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 language that some jurisdictions have adopted to deal with this type of situation:
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Fife Municipal Code Sec. 18.48.010.D: “Contiguous parcels that have one or more common owners, one or more persons who have an interest in the entity that owns or has an ownership interest in contiguous parcels, or a developer who intends to develop contiguous properties, must comply with the subdivision requirements of this title if the total number of resultant lots will exceed four in number. The short subdivision code may not be used as a mechanism to avoid the requirements of the subdivision code where there are adjacent parcels under common ownership, as described herein, that, but for the property boundaries, would be required to comply with the subdivision requirements.”
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Lynnwood Municipal Code Sec. 19.50.005: “Contiguous parcels of land in the same ownership and having boundaries in common shall be presumed to be a single parcel in determining whether or not the division of land comprises a short subdivision.”
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Marysville Municipal Code Sec. 20.04.050(1): “All contiguous parcels of land, regardless of date of acquisition or location in different lots, tracts, parcels, tax lots or separate government lots, that are to be subdivided or short subdivided shall constitute a single subdivision or short subdivision action.” (Woodinville has identical language in its municipal code at Sec. 20.08.020(1).)
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.
- 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: 07/11
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 have the authority to accept such a bond to defer installation of such improvements in a short plat.
- What is the legal nature of a dedicated right-of-way in a subdivision? Reviewed: 07/11
The general rule is as expressed in these court decisions. 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).
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."
London v. Seattle, 93 Wn.2d 657, 666-67 (1980):
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.
Finch v. Matthews, 74 Wn.2d 161, 168 (1968):
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.
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.
- What is spot zoning (particularly in the case of a rezone) and is it always illegal?Reviewed: 08/11
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:
- "Understanding Spot Zoning," by Robert C. Widner, Planning Commissioners Journal, No. 13, Winter 1994
- "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 U.S. Legal.
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)
- How are espresso stands, particularly those with drive-through windows, regulated in other jurisdictions?Reviewed: 07/11
The following are code provisions from Washington jurisdictions regulating espresso stands and drive-in/drive-through businesses:
- Auburn Municipal Code, Sec. 18.28.020(C), "Central Business District" (no drive-in facilities shall be allowed vehicle access to or from Main Street )
- Edmonds Design Guidelines, See #4, p. 12, "Site Design, Vehicular Access, Drive-Through Facilities"
- Kent Municipal Code, Sec. 15.02.113.1, "Drive-in, drive-through facilities," Sec. 15.05.050, "Drive-in businesses," and Sec. 15.08.020(C), "Special permit uses – drive-in restaurants"
- Mount Vernon Municipal Code, Chapter 17.92, "Development and Permit Requirements for Mobile Food Vans and Espresso Stands"
- Olympia Unified Development Code, Secs. 18.06.060(F) and (U), "Drive-Through and Drive-In Uses" and "Restaurants - Downtown Business (DB) District Requirements" (Note: Drive-in and drive-through businesses, except banks, are prohibited in downtown and urban waterfront zones. In The High Density Corridor 3 zone, all businesses which serve customers exclusively in their vehicles are prohibited.)
- Puyallup Municipal Code, Sec. 20.30.045(11) (regarding vending stands or kiosks including espresso stands)
- Puyallup Submittal Requirements for Espresso Stands
- SeaTac Municipal Code, Sec. 15.38.150
- Sumner Municipal Code, Sec. 18.04.0352, " Drive-in espresso/coffee business," Sec. 18.16.020, " Principal and conditional uses," and Sec. 18.16.080, (O) & (P) "Performance Standards"
- Model Town Center Zoning Ordinance, APA, 2006 (drive-in and drive-through facilities not allowed in TC zones).
Several communities, including Auburn, Olympia, and University Place, prohibit drive-through or drive-in uses in the CBD or on the city's main street.
- Request for sample drive-through facility standards for banks.Reviewed: 07/11
The following code provisions regulate drive-through lanes and drive-up windows associated with banks. Many of these relate to parking and queuing for drive-up facilities.
- Request for information and sample ordinances on freeway-oriented commercial zones and policies.Reviewed: 07/11
The following are sample freeway commercial zones:
- Bellingham Municipal Code Sec. 20.34.020 (C) Auto-Use Qualifier Commercial Areas (AC)
- Blaine Municipal Code Ch. 17.24 - Highway Commercial Zoning District
- Des Moines Municipal Code Ch. 18.29 - H-C Highway Commercial Zone
- Kirkland Zoning Code Ch. 35 - Freeway Commercial (FC) Zones
- Mountlake Terrace Municipal Code Ch. 19.60 - F/T - Freeway/Tourist District (not typical freeway-oriented zone)
- Walla Walla Municipal Code Ch. 20.74 - Highway Commercial District.
Most cities seem to have moved away from highway-oriented zones to more general commercial zones or mixed-use zones. In most comprehensive plans, the highway-oriented uses are included in a broader commercial land use designation. The comprehensive plan policies for commercial land use are typically general and do not address freeway-oriented land uses very specifically. Most communities are not encouraging concentrations of freeway-oriented uses in commercial areas.
The following articles are also available through the MRSC Library :
- "Zoning the Interchange," by Suzanne Sutro Rhees, Zoning News, December 1993
- "Acres of Automobiles," by Christopher Burke, Zoning News, June 1997
- "Transforming a Commercial Strip: The Revitalization of U.S. Route 1 in College Park, Maryland," by Terry Schum, Zoning News, February 2002.
- Does a rezone affect an existing water right? Reviewed: 07/11
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.
- May a city enact a moratorium as an emergency measure?Reviewed: 07/11
Yes. Many land use moratoriums are adopted as emergency measures in order to prevent the filing of applications by developers which might defeat the general purpose of the moratorium. A county or city likely has authority to enact interim zoning controls as an emergency measure to preserve the status quo while new plans or regulations are considered and prepared.
- What is the maximum allowable time for an emergency moratorium? Reviewed: 07/11
A moratorium adopted as an emergency is only effective for six months, but may be renewed for one or more six-month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal. For cities and counties fully planning under the Growth Management Act, see RCW 36.70A.390; for code cities, see RCW 35A.63.220; for other cities, see RCW 35.63.200; and for counties, see RCW 36.70.795.
- May the hearing for a renewed moratorium be held after a moratorium has been renewed?Reviewed: 07/11
Yes. RCW 35A.63.220 (for code cities), RCW 35.63.200 (for non-code cities), and RCW 36.70.795 (for counties) require a hearing within 60 days of adopting a moratorium or interim zoning if such hearing was not held before council action (or board action for counties). These statutes also require adoption of findings of fact to justify the action.
- Can the powers of initiative and referendum be used to amend a city's zoning ordinance and impose a moratorium on rezones for a limited time period?Reviewed: 07/11
No. The courts in this state have indicated that amendments to the zoning code are not a proper subject for an initiative. RCW 35A.63.220 (for code cities) and RCW 35.63.200 (for non-code cities) specifically indicate that it is the legislative body which has the authority to adopt a moratorium.
- May a city or county enact a zoning regulation that prohibits wireless telecommunications antennas from being placed in residential zones? Reviewed: 07/11
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.
- Has the state preempted zoning for adult homes located within cities? Reviewed: 07/11
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 70.128.175). 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.
- Must a port district comply with city zoning regulations over an airport? Reviewed: 08/11
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.
- What zoning applies when one lot is located in two zoning districts?Reviewed: 07/11
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.
- May local zoning regulations cover amateur radio facilities?Reviewed: 07/11
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.
- Is a private covenant enforceable if it is more restrictive than city zoning rules?Reviewed: 07/11
A private covenant is still enforceable, assuming it is validly created and does not violate public policy, even though it is more restrictive than the city code. However, the city has no role in enforcing these covenants. The city is only concerned with city regulations. Enforcement of private covenants is a private matter.
- Is the city council required to issue findings of fact and conclusions of law when ruling on a request for a rezone?Reviewed: 07/11
Yes. The findings of fact and conclusions of law are necessary so that if the council's decision is appealed, the superior court will have an adequate basis for reviewing whether the council's action is arbitrary, or whether it is supported by the record.
- Is a city prohibited from regulating the placement of satellite dishes on residential property?Reviewed: 08/11
Yes, if the satellite dish is one meter or less in diameter. A 1996 FCC order preempts all local regulation that affects the installation, maintenance, or use of satellite dishes that are one meter or less in diameter in any zoning district, and two meters or less in diameter in commercial and industrial zones. In other words, a property owner in a residential zone may, under this FCC order, put a satellite dish with a diameter of one meter or less basically anywhere on his or her property.
This Q&A on the FCC website deals with over the air reception devices.
- May a city prohibit the location of a day-care facility that provides for eight children in a residential zone?Reviewed: 07/11
No, not if the facility meets the definition of a "family day-care provider" under the terms used in RCW 74.215.010. That definition means a day-care provider who regularly provides child day-care for not more than twelve children in the provider's home in the family living quarters.
RCW 35A.63.215 (for code cities) and RCW 35.63.185 (for all other cities) provide that no city may enact an ordinance or regulation that prohibits the use of a residential dwelling, located in an area zoned for residential or commercial use, as a family day-care provider's home. The definition of family day-care provider that applies is the above definition from RCW 43.215.010.
- May city require a conditional use permit for a group home for persons considered disabled or handicapped?Reviewed: 07/11
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: "Group Homes: Local Control and Regulation Versus Federal and State Fair Housing Laws," by Ted H. Gathe, Washington State Bar Association Land Use Conference, May 1997 (Reprinted with permission of the author and the Washington State Bar Association).
- Request for information on density bonuses. Reviewed: 07/11
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:
Out of State Examples
In addition, we have the following information in our library:
- Alternative Techniques for Managing Growth, 2nd ed. by Irving Schiffman, Institute of Governmental Studies, 1999 (see "Density Bonus," pp. 57-59)
- Growing Greener: Putting Conservation into Local Plans and Ordinances, by Randall Arendt, Island Press, 1999 (see p. 48-49 and pp.163-164).
- "Using Zoning Bonuses for Smart Growth and Development," by Marya Morris, Zoning News, July 2000.
- How do other cities and counties handle unlisted uses that are not addressed in the zoning code?Reviewed: 07/11
There is no general rule for unnamed uses not listed in a zoning code. Most communities provide some provisions for addressing unlisted or similar uses in their zoning code.
The following codes include general provisions for unclassified uses or uses similar to others listed in the zoning code. In addition, some communities note that similar uses are permitted in particular zones (such as a commercial zone), and these provisions are typically listed as part of specific zone classifications in the zoning code.
- Are ham radio antennas exempt from local zoning requirements?Reviewed: 08/11
There is no state law that preempts local regulation of ham radio towers, but there is a federal ruling regarding preemption of state and local regulations related to amateur radio facilities. In 1985, the Federal Communications Commission issued a ruling, known as PRB-1, regarding federal preemption of state and local regulations pertaining to amateur radio facilities, that established a limited federal preemption policy. The ruling does not specify any particular height limitation below which a local government may not regulate. It states that "local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose." Section 25, PRB-1, Memorandum Opinion and Order (FCC 85-506), Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities.
This ruling is still in effect and has been affirmed by additional PRB-1 interpretations by the FCC. Based on a review of local ordinances, it appears that most cities exempt ham radio antennas from local wireless communications facilities regulations.
Here’s a Q&A on the FCC website that deals with over the air reception devices.
The relevant US Code provision for amateur (ham) radio antenna regulations is: 47 CFR 97.15.
- Request for information on regulation/prohibition of "formula" retail or restaurant uses.Reviewed: 07/11
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: Bainbridge Municipal Code, Sec. 18.06.370 - definition of "formula take-out restaurant;" Bainbridge Municipal Code, Sec. 18.40.020 - locational/zone restriction; and Bainbridge Municipal Code, Sec. 18.41.050 - formula take-out restaurant design guidelines.
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 and Ordinance No. 2896 at "Formula Business Restrictions - Port Townsend, Washington." See also "Formula Business Restrictions."
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 such as those adopted by Port Townsend and Bainbridge Island and does allow them in some area(s) of the city, they would likely be upheld by courts in this state. Limiting them to a certain number may be more legally questionable.
- May contract rezones still be used as a tool, or have they been replaced by development agreements?Reviewed: 07/11
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.
- What kinds of land uses are allowed on property near major natural gas or hazardous liquid pipelines - and how close can buildings be built to those big pipelines? Do federal regulations set limits?Reviewed: 07/11
It is up to local governments to establish land uses and setbacks along transmission pipelines. There are no applicable federal regulations. The easement controlled by the pipeline operator normally only deals with what can or cannot be done on the actual easement. For additional information, see MRSC's Planning Near Pipelines page. If you have questions regarding these issues, contact MRSC legal consultant Jim Doherty.
- May a city control the location of a sex offender residential housing unit through the adoption of zoning regulations? Reviewed: 07/11
A city has very limited options in regard to regulating sex offender housing, because the state has preempted most of this area. The 2006 legislature enacted SSB 6325 (codified as RCW 9.94A.8445) that prohibited local governments from enacting residency restrictions on sex offenders. The compromise that was signed into law put in place a statewide restriction that prohibits certain sex offenders from living within 880 feet of a public or private school. See RCW 9.94A.030(6) regarding definition of "community protection zone" and RCW 9.94A.703(1)(c) regarding the restriction on certain offenders residing within that zone.
- Request for information on what other jurisdictions do to buffer the impacts between commercial and residential zones.Reviewed: 09/11
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 Ch. 20.25D (see §20.25D.010(B)(12) - Bel-Red Office/Residential Transition) and §20.10.375(A)(12)
- Bellingham Municipal Code §20.37.130 - Samish Way Urban Village - Development (includes several transition zones)
- Bellingham Municipal Code §20.37.230 - Fountain District Urban Village - Development (includes several transition zones)
- Edmonds Municipal Code Ch. 16.77 - Office-Residential Zone
- Ellensburg Municipal Code Ch. 13.18 - Residential Office Zone
- Kent Municipal Code §15.08.210 - Transition Area Combining District
- Lynnwood Municipal Code §21.46.220 - Transition or buffer strip
- Lynnwood Municipal Code Ch. 21.52 - Mixed Use-Business Zone
- Redmond Zoning Code Ch. 21.50 - Transition Overlay Areas
- Seattle Municipal Code Ch. 23.46 - Residential-Commercial
- Tacoma Municipal Code §13.06.200.B.1 Transitional District
- University Place Municipal Code §19.20.035 - Mixed-Use Office Zone
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).
- How does Initiative 1183, relating to liquor privatization, affect local zoning authority? Reviewed: 02/12
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.
MRSC has examples of current zoning regulations that address liquor stores; however, these codes do not reflect the change from state to private liquor premises. These zoning provisions that address zoning for state-operated liquor stores and state-contracted liquor stores may be useful as a starting point for amendments to zoning ordinances to address private liquor stores:
- Auburn Municipal Code - §18.30.020 Permitted uses and §18.28.020 Permitted uses
- Fife Municipal Code - §19.40.020 Permitted uses
- Fircrest Municipal Code - §22.46.007 Prohibited uses (c)
- Issaquah Municipal Code - §18.06.130 Table of permitted land uses (see Land Uses, Food and Beverage - continued)
- Jefferson County Municipal Code - §13.20.020 Permitted uses
- Kent Municipal Code - §15.04.070 Wholesale and retail land uses (table)
- Newcastle Municipal Code - §18.08.070 Retail Land Uses table
- SeaTac Municipal Code - §15.12.060 Retail land uses
- Spokane Valley Municipal Code - §19.120.010 General (table of permitted land uses)
- Washougal Municipal Code - Table 18.36-1