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Featured Inquiry (01/08/07)

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Question

Request for information about how other jurisdictions are handling detached single-family condominiums constructed on a single parcel.

Answer

Snohomish County and a number of other communities are trying to address a new type of "airspace" condominium project, which consists of detached single-family dwellings on a single piece of property. At issue here is whether these condominium projects result in a division of land into lots, because the sale of units would include an easement for exclusive use of the yard area around the dwelling units. The net result would be indistinguishable from a conventional single-family subdivision, except that the land is, technically, owned in common. The project meets the definition of a condominium in RCW 64.34.020(9) and is clearly subject to the requirements of the Washington Condominium Act (WCA). The question is whether the county also may require that this type of development be processed under subdivision or binding site plan procedures. If not, how should this type of development be handled to address concerns about good site planning and public improvements requirements?

A subdivision process or the alternative binding site plan process for condominiums under RCW 58.17.040(7) would be required if a division of land is required to accomplish the condominium, for instance, to separate the condominium from other property not involved in the condominium. In general, MRSC attorneys have opined that a proposed condominium project where no new lots are created on property but where individual units (airspace) will be sold should be processed under the Washington Condominium Act (WCA), and is not subject to subdivision requirements or the binding site plan procedure under RCW 58.17.040(7). As defined in RCW 58.17.020(1) a subdivision is "the division or redivision of land into five or more lots, tracts, parcels, sites," etc (emphasis added). Similarly, under RCW 58.17.035, a city, town, or county may adopt by procedures for "divisions of land" by use of a binding site plan as an alternative to the subdivision process. MRSC attorneys have interpreted this to mean that the subdivision process, including the alternative binding site plan process referenced in RCW 58.17.040(7), is triggered by the division of land (rather than simply airspace). The issue here is whether projects with detached single-family condominium units with exclusive easements for the use of an area of land around the units involve "divisions of land." The argument that such projects do, in effect, involve divisions of land is based on the fact that the developer would be selling more than just the airspace of the building when the purchaser also is granted exclusive use of a defined yard area around the dwelling, such that the developer is dividing the parcel into lots even though fee title to those lots does not pass to the buyers.

There are no reported court decisions that exactly address this issue. There is one appellate case that addresses condominium units when land is clearly divided into lots. In Strauss v. City of Sedro-Woolley (88 Wn. App. 376, 944 P.2d, 1997), the court concluded that property may not be subdivided to create legal lots of record for condominiums unless it is subdivided pursuant to RCW 58.17.033 and RCW 58.17.060 - .070 or a binding site plan is filed pursuant to RCW 58.17.035 and .040(7). However, this case addresses the conversion of mobile home park units to condominiums. MRSC attorneys note that in Strauss, the mobile home park owner apparently is trying to divide land into individual mobile home sites (to create legal lots of record) rather than to simply create units within a condominium building or site. As a result, this case does not settle the question of single family condominiums on a single parcel of land.

Adding to the uncertainty, the terms "parcels," "tracts," and "sites" (used in the definition of "subdivision") are not defined, although "lot" is defined. The definition in RCW 58.17.020(1) states that "Subdivision" is the “division or redivision of land into five or more lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership…"

Black's Law Dictionary defines "site" as "A plot of ground suitable or set apart for some specific use. A seat or ground plot. The term does not of itself necessarily mean a place or tract of land fixed by definite boundaries."

Under this definition, dividing land into "sites," perhaps would be subject to subdivision or binding site plan requirements. Since the term is not defined in the statute, it would be up to the courts to decide if site has this meaning, is just a synonym for lot, or has some other meaning.

Since we are uncertain what the courts would find in this situation, we recommend that the county consider adopting regulations outside of the subdivision code that address this type of condominium development and that will assure good site planning and improvements requirements. A condominium development must still comply with zoning requirements, including type of use, density, setbacks, parking and access, and other requirements. It must also comply with building codes, requirements for sewer and water, and other development regulations that are not a part of the subdivision requirements. Some communities have specific language to allow only one building or detached single family unit per lot. Others require some type of site plan review where multiple buildings are proposed for a single parcel.

This issue is more widespread than we initially thought. We have learned of examples from Marysville, Burien, Lacey, Issaquah, Kennewick, Walla Walla, Kirkland, Bothell, Auburn, Bainbridge Island, and others. Many of these have regulations that clearly require site plan review or PUD procedures for a multi-building project outside of their subdivision regulations. Some are using binding site plans, with the understanding that they may be applied in this situation. Clearly, it is an emerging issue in a number of communities.

The following are examples of different types of provisions that may help assure adequate site planning and improvements requirements, even if subdivision or binding site plan requirements are not applied.

Ordinance that Specifically Addresses Multiple Single Family Dwellings on a Single Lot

  • Marysville Ordinance No. 2662 (See Sec. 19.08.030 - Residential land use table & footnotes, especially footnote No. 22)

    As the footnotes indicate, Marysville permits only one single family detached dwelling per lot except in planned residential developments and a binding site plan process must be followed. Marysville also amended its small lot single family dwelling development standards to also address issues related to multiple single family dwellings crowded onto a single lot. I will also provide some examples of other regulatory tools that may be useful for addressing this type of development.

One Unit per Lot Limit

Some communities have specific language in zoning codes to allow only one building or detached single family unit per lot. As a result, land would need to be divided into lots and thus would be subject to the subdivision process. Here are several examples:

Development Regulations and Improvement Requirements Separate from Subdivision Code

Some communities have placed development regulations related to streets, utilities, parks and similar improvements in titles that are separate from the jurisdiction’s subdivision code. Even if condominiums projects are not governed by the subdivision statute, they are still subject to zoning or other codes. Several examples follow:

  • San Juan County Code, Ch. 18.60 (Development Regulations) is separate from Ch. 18.70 (Land Division)
  • Pierce County Code, Title 16 (Subdivisions) is separate from Title 17A (Construction and Infrastructure Regulations, Site Development and Stormwater Drainage

Site Plan Review

Some communities have zoning or development regulation requirements for site plan review of developments with multiple buildings on the same parcel. Such provisions could be drafted to include multiple detached single family units on a single parcel. It could even be done as an administrative review, with adequate criteria and guidelines.

  • Lacey Municipal Code, Ch. 16.84
  • Federal Way Municipal Code, Ch. 22, Art. V – Site Plan Review – Process II
  • Pullman Municipal Code, Ch. 17.135 – Site Plan Review (applies to townhouses and planned residential development, but exempts single family dwelling on an individual lot)
  • Pullman Municipal Code, Ch. 17.107 – Planned Residential Development
  • Oak Harbor Municipal Code, Ch. 19.48
  • Redmond Community Development Guide, Sec. 20F.40.130 Site Plan Entitlement

Unit Lot Subdivision

Here are several examples of unit lot subdivisions. Although apparently directed at townhouses, the Seattle code also applies to some types of high density single-family development.

Comments Received from APA Members Forum Related to Detached Single Family Condominiums

Below are some of the APA responses that explain how different jurisdictions are processing them:

  1. The City of Lacey did one of these a few years back. The zoning allowed for multifamily, so the land did not have to be subdivided. They processed it as a multifamily development, through an administrative site plan review.
  2. The City of Auburn has several "detached single family condominium" projects, both completed and under construction. They have all occurred pursuant to a Planned Unit Development approval.
  3. Bainbridge Island was one of the first to have this hybrid. It was governed by their multi-family site plan review. The first one was (a cottage housing development). There have been several others in the downtown Winslow area. You would need to contact B.I. and see if they have changed the way they are reviewed or if they are still done under site plan review. Also, Bothell has had several of these projects as well. They were in multi-family zones and were also done under site plan review.
  4. The City of Bothell has had a tremendous number of these units built in the last few years (300+). They have far outpaced our single family detached subdivisions. Detached condominiums are only allowed in our 'multifamily' zones where dwellings could be built in attached footprints, but are not required to. In multifamily zones the land doesn't have to be subdivided to support more than 1 dwelling unit on a parcel. Our single family detached zones do not permit more than 1 dwelling unit per lot of record. That precludes this design from locating there.

    We don't do much with them different from other 'multi-family' developments. We treat them as multifamily permits and process them accordingly. The projects have to undergo SEPA review along with clearing and grading permits (this is the mechanism we use for site plan, utility plan, traffic and circulation review and approval). Each home then gets a building permit for the actual structure. We don't get involved in the legal relationship between the developer and the 'unit' purchaser. We don't treat them any different than someone buying a unit in a typical condominium development.

    Our subdivision codes only relate to the process for creating a subdivision and some of the administrative elements (timelines, etc). Our development standards are located in our zoning codes and in our design and construction standards manual. The DCS manual is adopted by reference in our Title 18 Utilities and Infrastructure.
  5. Kirkland has a condo/lot development. It is an 81-lot single family detach project on one lot.   When the project was about two thirds done, we had someone come in and talk about “his lot.”  This was about 6 years ago.  We were unaware that the developer had gone to the County and recorded these condo/lots.

    We saw this condo/lot approach as a way to avoid dedication right-of-way (subdivision ordinance) and to have the minimum standard setbacks between detached single-family structures (zoning).  It could also be used to avoid our floor area ratio requirements for single family. 

    After the fact, we decided that they needed to have an approved binding site plan or similar site plan review for this type of “subdivision” to occur.  Since the project already did go through a site plan review by our Hearing Examiner and City Council, we considered that process done.  The Enclave homes still did not meet our building setbacks for legal lots, but it was too late to deal with that issue. Right-of-way dedication had actually occurred for this project as a public benefit in exchange for several modifications to zoning code standards.

    (There was also a problem) with our recreational open space requirement for multifamily.  (The developer) had asked for a modification to count the rear yards to meet part of their recreation open space requirement. We don’t make a distinction between detached, attached, or stacked dwelling units when we require common open space recreational area.  In fact, we require that for four or more units the applicant provide 200 s.f. per unit and the space has to meet certain length and width requirements.   

    The Planning Dept. did end up with a major problem about a required easement for a neighborhood sign that was to be provided to the city as a condition of the permit.  The condo “lots” had been created before the City received the sign easement so the developer said that he could not go back to the “lot” owner to get the easement.  The developer ended up paying for a portion of the neighborhood sign instead and we fortunately were able to get land near by as part of another project to place the sign.  

    Our Building and Fire Dept struggled with this new concept because of restrictions for cooking outdoors (barbecues on decks) and separation of structures from "lot" lines under the UBC at that time.

    It is also very confusing to the condo owners when they think that they have a "legal lot" and come in asking questions about their lot, such as when told that they can not park their cars on a part of their "lot."  We tell them that they have no legal lot as defined by our Zoning Code.  The condo/lots do not meet the underlying zoning lot size.

    We have not amended our codes to address these types of condos/lots.  We decided to wait and see if more occurred in the city.
  6. The project in Kennewick was processed as a PUD. There were major problems because the City engineering staff approved road construction plan that were not consistent with the PUD plan. The road got built and then the planning staff was left to clean up the mess. Its a great project but the exemption from subdivision control is a serious gap that must be closed.
     
    The project in Walla Walla was processed as a binding site plan and there problems as well.
  7. This was probably 6-7 years ago, but my memory is that we did a Site Development Permit then building permits.  An SDP gives us more review/purview, in some ways, than a plat would.  (The streets were already established around the block of property, so it was the “lots” and alleys that we had to establish through the SDP.)  For instance, we reviewed the landscape on the individual lots as well as building placement which we wouldn’t normally do for SFD homes.  The utilities were also more complicated than normal.  Now that we are several years down the line, the problem is that some of the owners would prefer to be on fee-simple lots and it’s really hard to get all the owners to pay for and agree to subdividing it.  The only advantage of doing this was to the Master Developer who could build more units in a particular phase if they did them this way – otherwise no real benefits to the homeowners, though in other circumstances there might be.  My mother-in-law lives in a cottage housing development and they are condominium SFD but I don’t know a lot about how those were processed.  Because they are set up in a novel and tight configuration around a garden, the owners have enjoyed sharing the garden and other overall responsibilities, whereas in the Issaquah development arrangement there isn’t anything that’s different than a SFD so no benefits from being a condo – probably more hassles.
  8. The City of East Wenatchee and some other jurisdictions have developed the binding site plan (BSP) process to specifically address condos. Our binding site plan process also requires compliance with development regs listed in the subdivision code. Our BSP regs could still use some work. We have had some issues relative to using this process on an existing multi-family building when they decide to condominiumize the thing. We have not had anyone try to use the condo process for detached SF but it would seem that the BSP would still work for that type of project. (Note the respondent from the city of East Wenatchee apparently interprets the subdivision code differently and believes that a binding per RCW 58.17.040(7) could be used, even if land is not divided into lots or parcels.)
  9. (Another planner responded that her city has determined that a binding site plan could be used based on the Strauss v. City of Sedro Woolley case mentioned above): I don’t have any info on this particular topic, but I did want to respond to the notion that “they would be governed by the Washington Condominium Act rather than by subdivision regulations or the binding site plan alternative…”  I don’t necessarily agree.  Just this week I had an appeal hearing involving a condo project.  The conditions were somewhat different than what you’re talking about, but part of what came into play was this case: 88 Wn. App. 376, Strauss v. City of Sedro Woolley [No. 38407-4.1.  Division One.  October 13, 1997.] (pulled off MRSC’s site) - specifically, the finding that RCW 64.34.050(1) does not usurp requirements of 58.17.035.  Even with the type of development you describe, the BSP process would still be the mechanism by which common areas are regulated (including maintenance provisions).  Even with the individual yards concept, this may include such things as internal roads, landscaping strips, drainage facilities, etc.