January 13, 2011

How Washington’s unusual developer-friendly laws allow suburban sprawl

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By Robert McClure

InvestigateWest

Washington was the first state in the country to adopt what has become the benchmark for leniency in laws allowing developers to lock in building rights early in the development process.

Under Washington case law and statutes, changes that tighten land-use regulations do not apply once a developer has submitted a preliminary plan sketching out how he or she intends to develop a piece of property. In most states, a developer doesn’t get a break from stricter rules until construction starts.

Years can go by before construction starts, but in Washington the old rules will still apply. This “vesting” doctrine has played out for years in ways critics contend are overrunning Washington’s countryside with subdivisions and asphalt.

Here are some examples of how the concept translates into controversial reality in counties with sizeable populations: 

Whatcom County: Under pressure from a state growth-management board’s ruling, county council members in late 2009 pulled authorization for urban-style development from a large area near the Canadian border and west of Blaine, reducing the allowed density twentyfold. But just 25 days before the commission’s vote, Trillium Corp., developers of the existing 800-home Semiahmoo resort, filed an application to lock in building rights for more than 1,250 homes and 60,000 square feet of commercial space on 624 acres west of the existing resort. Attorneys for the developer wrote in an Oct. 30, 2009 cover letter submitting the plans that they intended to lock in the building rights. Neighbors downhill at Birch Bay Village are nervous that the new development will hamper their existing efforts to deal with stormwater before it enters Birch Bay. Plans submitted by the developer assure county officials that stormwater will be controlled. “Stormwater is a big issue that will be checked out,” said Tyler Schroeder of the Whatcom County Planning Services Division. Trillium notes that the land was considered suitable for urban-style growth for decades, and says it had been actively working on expanding the resort all along.

Whatcom County: Based in part on a 1971 county approval of plans for a subdivision, and the city of Bellingham’s agreement 39 years ago to provide water to it, the Governor’s Point Development Company is moving ahead with plans to develop a 141-lot subdivision on 125 acres in the Chuckanut Drive area. The plans have been frustrated by the refusal of the nearby city of Bellingham to provide water. The 1971 subdivision approval was never used, but the landowners came back in 1992 with a second plan that also was approved — but after the city says it had made it clear it would not provide water service. The current zoning, the developer’s lawyers have said in court papers, would allow as many as 375 homes on the 125-acre development, nearly three times the development being proposed now. “Cases like this are why we have a statute of limitations,” attorney Dean Brett, representing nearby homeowners, argued in court documents regarding the water dispute. But the same could be said of how the development would run afoul of the Growth Management Act and other modern environmental laws, Brett said in an interview. Already the Chuckanut area is plagued by some failing septic tanks, the developer’s lawyers wrote in court papers. The developers have sought to penalize Bellingham $2.8 million in damages for failing to provide water. An attorney for the developers declined to comment on the case.

Whatcom County: Strader Place was the name of a 47-lot development proposed by Lake Samish in 1992. That never got off the ground, but in 2000 developer Derek Stebner purchased the land and began to market it under the name Sleepy Hollow. Neighbors concerned about traffic and pollution of the lake appealed, noting that the project had been redesigned, renamed, and was under different ownership. But a hearing examiner ruled in 2001 that the neighbors couldn’t prove that either the first set of developers or the second had ever abandoned the project. The county council, in a meeting the public was not allowed to attend, affirmed that decision. Stebner in 2004 postponed a subsequent hearing on the development, didn’t re-schedule it and then neighbors heard nothing for about five years. But then Stebner resurrected the project in 2009. Neighbors, thinking a 17-year-old subdivision application by another developer surely didn’t entitle Stebner to proceed, appealed. But a hearing examiner disagreed, opening the way for the developer to build up to 47 homes on 25 acres. Current zoning would allow just five homes on the property. The developer also doesn’t have to follow rules passed in 1997 to help fish by leaving 100-foot forested buffers alongside waterways. He can leave the 50-foot buffers required in the early 1990s.

Snohomish County: As the county’s Critical Areas Ordinance to protect wetlands, streams and other environmentally sensitive features was debated, developers filed large numbers of building proposals to lock in their right to ignore the law’s protections. In the two years leading up to the effective date of the ordinance, the number of development applications was 616. Over the next two years, just 128 developments were proposed. (The current economic decline is clearly a factor in the decline. But the land rush was apparent simply by examining the number of permits applied for in the two months before the ordinance went into effect and the two months after: 51 applications to 14.)

Snohomish County: The Edmonds-based McNaughton Group development company is pressing ahead with plans to build 600 new homes to the forested Lake Goodwin area northwest of Marysville, based on “rural cluster” zoning that has since been tightened significantly. Neighbors in the woodsy area are fighting the developments. Ellen Hiatt Watson of the non-profit group 7 Lakes, who grew up in the area and learned to swim in Lake Goodwin beside her childhood home, says the subdivisions are changing the character from rural to suburban. More here.

King County: One of the earlier and bigger vesting plays involves Redmond Ridge, east of Redmond, where Quadrant Homes filed applications to build 1,876 lots, and filed them in such a way as to keep the building rights intact indefinitely. This bargaining power allowed the company to get county approval for development far from the urban core, even after 1990 passage of the Growth Management Act. More here.

King County: A developer wants to transform the small rural town of Black Diamond, boosting the number of homes by 400 percent and nearly quadrupling the population. An ordinance passed by the city grants the developer vested status when it comes to stormwater regulations. Residents fighting the development far east of Auburn say the city can’t do that. More here.

Pierce County: Orcas, Rainier, Baker, Adams, Alder, Cascade. Those are the names of floor plans offered in Grand Firs, a subdivision near Graham in Pierce County that is pretty clearly not what the authors of the Growth Management Act had in mind. The plan for 402 homes on 206 acres was filed after the state’s Growth Management Act passed in 1990 but before Pierce County passed a comprehensive growth plan required by the state law. Only about 15 homes would have been allowed on the land between Joint Base Lewis McChord and Mount Rainier under the law in effect when the subdivision was built. The development went in right next to a facility that bred endangered red wolves in a project to rescue the species being conducted for the U.S. Fish and Wildlife Service by the Point Defiance Zoo. Zoo spokeswoman Whitney DalBalcon said the development moving into the neighborhood was “a major factor” in the decision to move the captive-breeding facility.

Pierce County: When developers in a firm called Westside Business Park sat down with county officials before filing a development application, they said they would build an office building and parking on one lot, and four mini-storage buildings and a small office on an adjacent lot. A preliminary site plan showed water drainage facilities. But in an application for a plat, or a map showing how the property would be divided, there were no plans for the water drainage facilities, roads, or utilities. Six weeks later, the Pierce County Council adopted new rules to tighten requirements for drainage, in part in response to the federal Clean Water Act. The county told the developers that because they had not shown how they planned to construct the drainage facilities, their application was not vested and they would have to follow the new drainage rules. But the developers challenged that and a hearing examiner found that the “bare bones” development application did indeed get Westside Business Park in under the wire — even though no drainage plans were submitted. Higher courts upheld the ruling.

Pierce County: It was the day before Pierce County’s comprehensive plan was about to go into effect when a Kirkland developer filed paperwork to build 350 homes on 300 acres right at the base of the Cascade foothills, far past where the incoming growth plan would allow that kind of density. The gated community known at The Buttes is legal, but it’s far from what the state Growth Management Act envisioned. Pierce County officials — having lost two key vesting cases in the 1980s and realizing that there was a big supply of lots established years before the growth law went into effect — did something that’s allowed but rarely undertaken by local governments: They passed an ordinance specifying that building rights not used within five years automatically expire. However, it’s still possible for property owners to get extensions, and the county passed an ordinance temporarily extending the grace period from five years to seven years because of the current massive economic downturn. As for applying the day before the deadline, Buttes developer Tom Sturgeon said that’s far more difficult than it sounds. “We did get vested under the wire, if you want to use that term, but it took us two years of engineering work and surveys to get the application to a point where the county would accept it,” Sturgeon said. “It was a major ongoing engineering project.” Sturgeon estimated costs of about $500,000 simply to get the project to the point it could be vested.

Thurston County: The number of small building lots in the countryside was making such a mess of growth-management efforts that county officials had to declare a two-year moratorium on any more subdivisions there. From 1995 to 2006, more than one-third of all new homes in Thurston County were built in rural areas instead of in urban areas where growth-management efforts seek to direct new construction. Even after the two-year moratorium ended in August 2007, some 3,800 of the small rural lots remained. County officials estimated that was enough to keep fueling growth in the countryside for another nine years. The estimate came right after Thurston officials modified the rural zoning laws so that fewer lots could be established in the future. More than half the rural growth in the county from 2000 to 2005 took place on lots of two acres or less. 

Thurston County: It was April 5, 1990 when Manke Lumber originally applied to build 300 single-family homes on 337 acres adjacent to the city of Lacey in a subdivision called Silver Hawk. Four months later, the county downzoned the property. The developer was in and out of legal proceedings with the county over the years. Preliminary approval was granted by Thurston County on Oct. 24, 2005. That set running a five-year clock to get a final county approval. But the company said it needed more time. At a November 2009 hearing, the developer’s engineer testified that he had been working on the project since 1999. The hearing officer extended the company’s deadline, giving the company another year to secure a final approval from the county. Sometime after that, Manke will be free to build under rules more than two decades old.

Kitsap County: Visitors to the 1909 Alaska-Yukon-Pacific Exposition in Seattle were offered the chance to purchase a bunch of tiny real estate plots in the area near the U.S. Navy’s present-day Manchester fuel depot — lots that sold for $25 then, and that even today can claim to be vested for development. In an area where the county’s comprehensive plan calls for one home for every five acres, the development could be thirtyfold as dense if all the lots were developed. Similar situations face areas around Kitsap communities such as Indianola, Kingston, and Suquamish. The Kitsap County Commission ordered several development moratoriums and directed its staff to study the situation. The Kitsap Planning Commission intended to wrestle with the problem recently during its so-called “Year of the Rural,” but that effort has been delayed by lack of county planning staffers. At the proposed Woods View development near Manchester, planned for the corner of Woods and Farmer Dell roads, 78 homes are to be built on less than 13 acres. Each lot is 40 feet wide and 100 feet long. Resident Celia Johnson, who lives nearby in the home where her father grew up, told the Kitsap Sun: “This area is zoned rural. I can’t put another home on my 212 acres. I understand that landowners have rights, but they are taking away rights on my property. . . . This was done in 1909. How many laws were written in 1909 that have been repealed and don’t apply anymore? Why does this?” The original developer, Darlene Piper, earlier this year filed for bankruptcy. She sued county officials in federal court in Tacoma, alleging they, among other actions, held up the development by contacting state officials to express concern about the development’s septic system and their fears of “development of urban densities outside an urban growth area.” Piper did not return a phone message left at her office.

Spokane County: Lawyer Rick Eichstaedt won the case for his clients. The Eastern Washington Growth Management Hearings Board ruled that the Spokane County Commission was way out of line when it changed the boundary of its urban growth area to include the Palisades neighborhood, not far from the airport. The board issued a “finding of invalidity,” meaning the commission’s action was illegal. There’s just one problem: “It only applies from the day they issue it forward,” Eichstaedt explained. “It’s not retroactive.” And in the time Eichstaedt had been arguing the case before the growth board, developers had filed applications to build in the area. It was too late. This same development had been rejected by a previous county commission, but things changed after an election. The new board’s move authorized up to 480 homes where eight would otherwise be allowed.

Spokane County: County commissioners amended their plan for growth in the Five Mile Prairie area to allow some 1,500 homes where 22 would otherwise be authorized. Local residents appealed, noting that parts of the area are prone to landslides, that the development would harm sensitive aquatic areas, and that a building binge would overtax roads, schools and police services. They won a decisive victory from the Eastern Washington Growth Management Hearings Board, but not in time to halt developers who had filed subdivision applications while the case wended its way through the process. What the growth board called the county commission’s “clearly erroneous” decision ably benefited the developers anyway. Here’s what the growth board had to say about that: “Here, two years have passed. The area within the expanded (urban growth area) has been blanketed with developments or vested development permits. The once rural area clearly has changed.” Former Spokane County regulator Brenda Sims warned at least as early as 2003 that development in the area would aggravate existing problems with polluted stormwater runoff from the area. The growth-management board noted that for stormwater and other services, “levels of service are inadequate or questionable,” and the county government itself said Five Mile Prairie is “a major stormwater problem area.”

Kittitas County: The American Forest Land Company, owner of more than 50,000 acres north of Cle Elum in the Teanaway River Valley, says the logging business hasn’t been very good lately. In fact, it hasn’t sold any timber since 2006 and so it needs to sell off some of its timber land for development. Kittitas County commissioners passed a comprehensive plan that allows one home on every three acres in portions of the remote mountain valley, but it was struck down as “non-compliant” with the state’s Growth Management Act by the Growth Management Hearings Board. The town of Roslyn, near the land in question, attacked the county’s rules in court papers, saying they “not only increase density in the rural areas, they (also) have no maximum limit on density, which means that it can permit unbridled urban-level growth even in the rural, unincorporated parts of the County. . . . A county may not plan for urban growth in a rural area. Yet, that is exactly what Kittitas County has done in this instance.” Instead of changing the zoning to allow fewer homes, the county has appealed, and is now headed for the Washington Supreme Court. Land-use lawyer David Bricklin, representing residents who want to see growth limited, has seen this movie before, he says. As long as the county commission leaves the 3-acre zoning in place, developers need only file for building permits to lock in building rights during the appeal. “If the county commissioners had any sense, they would use this window to change the zoning, but they’re complicit,” Bricklin charges. AFLC says it’s considering many uses for its land, and isn’t about to charge ahead with development plans right away.

Clark County: After setting aside land for farming in 2004, the Clark County Commission in 2007 changed its state-mandated growth plan to allow development on 4,351 acres near several towns. One of the justifications cited was “unique economic development opportunities.” The 2007 changes by the county were the third set in less than a decade, noted John Karpinski, the Vancouver lawyer who challenged the conversion of farmland to suburbs. He noted that, just across the Columbia River in Oregon, where a stronger growth-management law rules, things are different: “Clark County has expanded their growth boundaries in 10 years more than the Portland metropolitan area has expanded theirs in 37.” He challenged the changes. But while the appeal was pending, the cities of Camas and Ridgefield annexed 945 acres of the farmland. And because the Growth Management Act says local governments’ actions are presumed legal until ruled otherwise, the conversion of farmland to urban development went through even after a state growth-management board declared illegal the county’s decision to allow development on the farmland. A judge later reversed that decision on 400 of those acres. The 200 acres annexed by Ridgefield will permit five homes per acre, said City Manager Justin Clary, meaning 1,000 homes can be built on the property. The 514 acres annexed by Camas is zoned Light Industrial/Business Park, and the land is the subject of a development agreement that might allow building of some homes, according to Kathy Marlowe, Camas town planner.

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