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2003, 07-31 Study SessionThursday, July 31, 2003 6:00 P.M. - 9:00 P.M. CITY HALL AT REDWOOD PLAZA 11707 East Sprague Avenue, Flrst Floor ee Land Use Law and Liability Workshop — Presented by Michael W. Walter, Partner of the law firm of Keating, Bucklin 8 McCormack, Inc., P.S., through Washington Cities Insurance Authority (WCIA). AGENDA SPOKANE VALLEY CITY COUNCIL WORKSHOPTTRAINING SESSION Council Requests All Electronic Devices be Turned Off During Council Meeting 1. Call to Order by Mayor Michael DeVleming 2. Guest Welcome and Introductions 3. WORKSHOPIIRALNING SESSION : 4. Adjournment --, 4;1_ Land Use Training City of Spokane Valley ' Juty 31, 2003 Sign -In Sheet NAME TITLE /DEPT. ' ENTITY 1 /4,1 j 1Lom Ai ;4.11.ce C,'4 c Spkeu(,e Oaf k 1/H5oj li of f 0,/P C ( (mil 444/ ;KItb, P 1049", e #P2 / t(1. .. newdN1i R/144 ,a�/,r er lie oda 4 < skin �L -p, -,--, C ,-1-1 E -.7 D s v .l 5 S ,J CA 7 1< (2il✓Y&141) —r4) t- ' '.© ..- , r, OS Co i 8 1, IL- - e-l" I, �` J A c o * —7- no-A 11 icy ..867:)0114C- ..867:)0114C- (_ /'L /9 ) ),tJ 60041sT/.. 610.✓ ►1 /" 12 �� 1. \ C Lkvhcc,. ■-7 1 vLrLti 4 5 C in yr . 0a% i t 1/ t c � 1 j " 0 13 lArJ RoBeRTs N( P� , t t 14 C� '/ / ,,,„.„,,...z_< C�,,/,!/„ L_ M l.a.. (o.tr- 1 - 1 1C iPe O _ y 1p..1 .v, (Ol r 1 r1 CoraitC+ 1 Vh. of b.iy I I m 16 .�r, v t' Mtos00 17 ` i L Da ` ' , NI mitAtu V. r (gx1- 0\4RSiIn..;r4 _c . J. ( PI pt>k--' 5. v. ' )9,e • S d /// i (/ 18 4)4-e.V.T \/ GL,ne;1J 12r.L C, � " .Z/ /i l['I 19 1 r - 20 . 0' £ - 21 id'44,44 Land Use Training City of Spokane Valley ' Juty 31, 2003 Sign -In Sheet ]Land Use Training City of Spokane Valley July 31, 2003 Trainer: Mike Walter Keating, Bucklin & McCormack THE CONDUCT OF GOVERNMENT SHOULD ALWAYS BE SCRUPULOUSLY JUST IN DEALING WITH ITS CITIZENS; .. . State ex, Rel. Shannon v, Sponburih, 66 W.2d 135, P. 143 (1965) HIGH -RISK DECISION - MAKING: SO WHAT? L Exposure to the City > Invalidate City's Decision 9 Money Damages Against the City 9 Attorney Fees and Costs Imposed ➢ Bind the City II. Personal Exposure • Named as a Defendant > Key Witness at Trial > Witness Against Employer (City) 9 Possible Un- Insured Personal Claims III. Expensive > Document Intensive > Extensive Legal Discovery 9 Vigorously Litigated • Potentially Big $$$ at Stake ➢ Uses Valuable Officer and Personnel Time ➢ Attorney Fees and Costs IV. Politically Damaging > Emotional > Personalized > Politically Motivated ➢ Bad P.R. for City V. State -Wide Ramifications ➢ Make Bad Law VI. Undermines Public Confidence in Government ➢ Perception of Incompetence 9 Perception of Political "Agenda" WHERE'S THE RISK? TYPE OF ACTION I. Legislative v. Quasi - Judicial v. Ministerial ✓ Quasi - Judicial (Very High Risk) ✓ Legislative (Low Risk) r Ministerial (Low Risk) DECISION MAKER II. City Council v. Planning Commission v. Board of Adjustment v. Design Review Boards v. Hearing Examiner v. Staff r City Council (Very High Risk) ✓ Design Review Board (High Risk) ✓ Planning Commission (Moderate Risk) > Board of Adjustment (Moderate Risk) ✓ Hearing :Examiner. (Very Low Risk) > Staff (Very Low Risk) r,CI :SIGN III. Recommendation v. Final or Appeal ✓ Recommendation (Low Risk) ✓ Final or Appeal. (High Risk) RISK-INDUCING IV. All High Risks: ACTIONS r Playing Politics With Quasi - Judicial Applications r Meddling in the Province of Staff > Arbitrary and Capricious Decision Making • M:is- Applying the Law r Ignoring the Law CITY EXISTENCE V. Existing City v. Newly Incorporated > Newly Incorporated (Very High Risk) ✓ Existing City (Lower Risk) HIGH RISK LAND USE ACTIONS Assurances /representations of: (1) utility service or capacity; (2) zoning boundariesirestrictions: (3) boundaries of sensitive areas, historic districts or "overlay districts ": or (4) property boundaries or utility lines. Causes of natural disasters, such as landslides, floods. erosion, fallen trees, building collapse. etc. • Zoning regulation and permitting /licensing of: (1) adult entertainment businesses: (2) group homes: (3) alcohol/drug rehabilitation facilities: (4) work release facilities; (5) sexual predator release facilities; (6) assisted care facilities: and (7) gambling casinoslcard rooms. > Approvals for large andior controversial and'or politically sensitive projects like: (1) shopping centers; (2) strip malls; (3) large subdivisions; (4) essential public facilities; (5) environmentally or historically sensitive projects; (6) mobile homes /mobile home parks; and (7) ::big box" commercial projects. • Ignoring or violating vested rights. Adoption of andror implementation of moratoria. • Regulation and/or permitting of cellular telecommunication facilities. > Failure to plan for utility capacity, service and infrastructure. • Off site development mitigation .requirements. The BIG Rules (General Rules for Municipal Decision Making) 1. Follow your code and state law. 2. Don't waive code requirements or standards. Treat all classes of permit applicants equally and consistently. 4. Don't promise. guarantee or assure results or approvals. 5. Recognize and enforce vested rights. 6. Correct your code, zoning and regulatory problems legislatively. 7. Don't delay decisions or pen (1.20 -day rule). S. Don't encourage organizations or groups to support or oppose projects. 9. Don't do the applicant's job: > Don't design project or assist in design. > Don't recomunend "what will .y ". Don't loan services, SSS, or equipment. 10. Clean up your code (Legislatively). > No ambiguities or undefined terms. > No conflicts. > Update to comply with new law. 11. Be creative w ithin the law. > Developer agreements. • Allow "phasing " > Creative land design: PUD's. PRD's, clustering, etc. 12. Don't meddle in staffs permit review or decision making. '3. Use Hearing Examiner for final quasi - judicial decisions. 14. Don't disclose privileged or confidential documents. 15. Seek out and follow your city attorney's advice. CITY COUNCIL ROLES IN LAND USE DECISION - MAKING [L vs. "Policy - Making" ✓ Capital improvements r Comprehensive Plan ✓ Area -wide planning ✓ Zoning maps > Establish development standards ✓ Adoption of general application ordinances > Long -term planning > General infrastructure > Planning!f nancingi extensions annexations > Contracts 1QUAS[-JUD1C11L "Judge -like decision" r Subdivision /short plat approvals > Conditional /special use permits > Site plan approvals > PUDs/PRDs /PDDs > Property- specific approvals > Appeal of administrative decisions ✓ Variances ✓ Shoreline permits > Boundary line adjustments > Site-specific rezones LEGISLATIVE DECISION MAKING > � �" z < y:�ari y t w) v� {3 .e �'' ` v. err .. t �<•4• ''- �' •,- • . -� cu aw.: -- v '.�+ T �. t r. ...- YL 1 • . _ _ � S• :Mtn: __ 00, LEGISLATIVE DECISION - MAKING I. Purpose Policy making, long -term planning, long -term budgeting, general, city -wide zoning and regulation development, creation of development standards and general - application law - making, based on constituent desires. II. Indicia > Not property specific, applicant specific or project specific • General application to all properties or all residents throughout the City • Creation of Cite -wide visioning, policies, goals, etc., based on best interests of community • Adoption of ordinances or resolutions for planning, regulation, policy-making, etc. and general law - making III. Legal Standard Decision -maker considers the public health, safety and welfare. Decision guided by constituent desires and what the decision -maker believes is in the best interests of the community. Must be rationally related to legitimate public purpose. Very deferential. IV. Notice/Process > Public hearing generally required • Council may, but not required to, consider "evidence" > Open Public Meetings Act (RCW Ch. 42.30) applies • Appearance of fairness (RCW Ch. 42.36) does not apply > No time limit for adoption of legislation V. Liability Pitfalls/Risks > Notice requirements must be strictly followed > Deliberation done in open public meeting (RCW Ch. 42.30) > No equal protection violation > Taking or "Inverse Condemnation" (over - regulation) • Moratoria • Vague, ambiguous, or undefined regulations /standards > Immunity for purely legislative actions The BIG Rules (For Legislative Decision - Making) Follow your code and state law. 7. Remember vested rights; incorporate vesting into legislation. 3. All legislation must be: (1) clear; (2) easy to understand; (3) not vague or ambiguous; and (4) not in conflict with state or federal law. 4. Eliminate internal conflicts in code and conflicts with state and federal law. 5. All. legislation must advance: the public health; welfare; safety; or the fiscal health of the city. 6. Use moratoria. spar. ingi.y and carefully; must protect vested rights. Provide for administrative appeals of quasi. - judicial actions. 8. :Legislation must not impair public or private contracts. 9. Request and follow city attorney advice. QUASI-J1JDICIAL DECISION MAKING QUASI - JUDICIAL DECISION = MAKING Purpose "Judge- like" decision making involving a specific party, specific property or specific project to resolve a "contested" matter. Quasi-judicial means "acting like a judge" in adjudicating the rights of specific parties on a specific proposal. H. Indicia > A specific applicant or specific property or a specific project at issue Decision impacts specific parties, as opposed to having "area- wide" impact of general community significance • Form is more like hearing or "mini- trial" > Decision - makers consider evidence (testimony and exhibits) > Results in approval, approval with conditions, or denial III. Legal Standards Decision based on findings of fact, based on evidence in the record of the proceeding, that are directly related to conclusions as to whether specific criteria in state statute or city ordinance been satisfied. Decision must be made on only the criteria in statute or ordinance relating to -particular type of application or decision. Decision will be invalidated if: (A) arbitrary and pricious; (8) lack of substantial evidence; (C) clearly erroneous; or (D) error of law. N. Notice/Process Open Public Meetings Act (RCW Ch. 42.30) applies • Appearance of fairness (RCW Ch. 42.36) applies > Decision makers cannot pre -judge matter, and must be unbiased. > Consider evidence for and against proposal > May require swearing in witnesses > Make and preserve clear, complete and accurate record of proceedings • Render decision in timely manner • Always — findings of fact and conclusions of law! V. Liability Pitfalls/Risks • Failure to make sustainable findings /conclusions > Violation of appearance of fairness (RCW Ch. 42.36) > Violation of Open Public Meetings Act (RCW Ch. 42,30) • Failure to give legally sufficient notice of hearing • Violation of vested rights > Failure to make or preserve good or transcribable record > No "visioning ", planning or policy - making > Not consider constitutions' desires or best interests of community Nn ahsnlute immunity from decision making. The BIG Rules (For Quasi- Judicial Decision Making) 1. Follow your code and state law. 2. No policy - making, "visioning" or city goals. 3. Recognize and enforce Vested Rights. 4. Consider al.l of the evidence. 5. Make decisions timely (120 -da_y rule). 6. Always: Good findings and conclusions. 7. Don't let citizen complaints or community displeasure influence decision. 8. Use a hearing examiner for all final (or appeal) quasi - judicial decisions. 9. Do not base decisions on "what's good for the community" or on "the best interests of the city. . 10. Make sure decisions are based on "substantial evidence" in the record. 11. - Don't promise, guarantee or assure results or. decisions. 12. Don't waive code requirements or standards. ' 13. Treat all. classes of permit applicants equally and consistently. 14. Get and follow city attorney advice. ARBITRARY AND CAPRICIOUS DECISION MAKING Blind Luck ARBITRARY AND CAPRICIOUS CONDUCT A decision which is made willfully and unreasonably, without consideration and in disregard of the facts or circumstances. EXAMPLES OF • ARBITRARY AND CAPRICIOUS DECISION MAKING 1. Failing to make findings of fact and conclusions of law for quasi - judicial decisions. 2. . Making quasi - judicial decisions based on political agenda or motives. 3. Ignoringlnot applying the law. 4. Applying the wrong law. 5. No evidence in record to support decision. 6. Ignoring evidence or testimony. 7. Imposing standards or requirements not authorized by statute or code. 8. Waiving standards or requirements of code. 9. Making quasi- judicial decisions based on the number of proponents or opponents. 10. Applying legislative policies, goals, or "visioning" when deciding quasi.- judicial applications. 11. Basing quasi- judicial decisions on community desires, community displeasure, or public sentiment or complaints. 12. Making quasi- judicial decisions based on economic viability of project. 13. Wrongfully delaying decisions on permits or approvals. 14. Ignoring city attorney advice. PERMITS l \'G PL4 NS The BIG Rules (For Permit Reviewlprocessina/Issuance) 1 Ministerial — NOT discretionary (Once code /statute requirements met, must issue promptly). 2. Follow strictly ALL statutory and code criteria. 3. DO NOT DELAY — issue promptly (120 day rule). 4. DO NOT interject city council or politics into administrative process or decision- making. 5. Ensure that decision - making /issuance is not: (1) unreasonable; (2) cost - excessive; or (3) burdensome permit review processes. - 6. No excessive or unreasonable bonding or indemnification • requirements. 7. Decisions must be competitively neutral and applied non - discriminatorily. 8. DO NOT condition on: (1) financial viability; (2) technical capability or expertise; (3) disclosure of proprietary information; or (4) waiving legal rights. 9. DO NOT get involved in private property agreements, CCR's, h.orneowner's agreements, etc. 10. Treat all permit applicants equally and consistently. 11. Don't promise, guarantee or assure specific decisions or approvals. ,_..:2. Request and follow city attorney advice. 03/07/2002 10:03 FAX 208 2239423 KEATIVG.BUCKL1N - WCIA Z002/005 OPEN RECORD HEARING ... a hearing, conducted by a single hearing body or officer authorized by the local government to conduct such hearings, that creates the local government's record through testimony and submission of evidence and information, under procedures proscribed by the local government by ordinance or resolution." 03/07 /2002 10:03 FAX 200 2239423 KEATING.BCJCKLI,N -. WCIA Z003/005 An open record hearing may be held prior to a local government's decision on a project permit to be known as an "open record pre- decision hearing." An open record may be held on an appeal, to be known as "open record appeal hearing" if no open record pre- decision hearing has been held on the project permit. TYPES OF OPEN RECORD HEARINGS 03/07/2002 10:03 FAX 206 2239423 KEATING,BIJCKLIN 11 CLOSED RECORD APPEAL WCIA j004/005 . an administrative appeal on the record to a local government body or officer, including the legislative body, following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal argument allowed." 03/07/2002 10:03 FAX 206 2239423 KEATING.BUCKLIN - WCIA Qj005/005 • The BIG Rules (For Open Record /Closed Record Hearings) ➢ Must establish by ordinance or resolution. ➢ No more than one open record hearing and no more than one closed record appeal. ➢ GMA requires by ordinance or resolution an "integrated and consolidated permit process_" ➢ Government shall specify which decision makers shall made the decision or recommendations, conduct the hearing, or decide the appeal. ➢ Can use hearing examiner for either: (1) Recommendation to legislative authority; or (2) Make final administrative decision. Follow Regulatory Reform Act, Ch. 36.70E RCW 1. GORILLAS IN THE CLOSET • Litigation Under the E.S.A. Citizen lawsuits > "Takings" under Section 9 of the Act (16 U.S.C. §1538(a)) • Suits challenging regulations /approvals impacting new listings for salmon 2. Utility Supplies, •nfrastructure and Service Water rights and availability • Capacity to serve new development Infrastructure to serve new development • Environmental regulation (SEPA, SMA) and E.S.A. issues impacting both supplies and infrastructure 3. Consistency of Zoning and Development :Regulations With GMA Comp Plans > GMA compliance Pre,-GMA zoning and /or development regulations (Inconsistent with comp plans or GMA goals) > Internal Inconsistency of Zoning and /or Regulations 4. Siting and Regulation of Essential (or Controversial) Public Facilities Jails, prisons and other correctional facilities > Sewage and solid waste treatment facilities > Cellular towers and telecommunication facilities > Drug/Alcohol treatment facilities > Group hones VESTED RIGHTS Purpose 'x the rules that will govern a land use application or project. Provide for certainty. Allow developer to know in advance what rules /regulations will apply to a project. II. Applies To: > Subdivisions /short plats SEPA deterrninations • Development permits > Shoreline permits Planned Unit Developments (PUDs) 'r Conditional Use Permits (CUPs) III. Not Apply To: > Comprehensive plans Written studies/analyses /reports Y P.ezones ,� . Elements > Written application > Application is `complete" • Subdivisions /short plats /building permits: fully complete • All other applications: substantially complete • Completeness determined by code > Application consistent with existing zoning V. Regulatory Reform Permit applications deemed complete by law 23 days after permit application submitted to City. RCW 36.70B.070. Failure to advise — application is deemed complete. VI. Effect of Vested Rights • No discretion to change zoning, development regulations, standards or policies applicable to project. • Applicant can proceed with project under zoning and development regulations /standards in effect at time of submission of complete application. • If City imposes new zoning, regulations or standards on vested project: • Fourteenth Amendment Substantive Due Process violation. • Fourteenth Amendment Equal Protection Violation • Violation of Regulatory Refonrn Act. • Possible violation of Ch. 64.40 RCW. • Will subject City to claim for damages. 53.17.110. Approval or disapproval of subdivision and dedication — Factors to be considered— Conditions for approval — Finding— Release from damages (1) The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine: (a) If appropriate provisions are made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, other public ways, transit t recreation, potable water supplies, sanitary wastes, parks and recr..ation, play - grounds. schools and schoolgrounds, and shall consider aII 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) whether the public interest will be served by the subdivision and dedication. (2) A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appro- priate 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 recre- ation, playgrounds, schools and schoolgrounds and all other relevant facts, including sidewalks and other planning features that assure safe walling 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. Dedication of land to any public body, provision of public improvements to serve the subdivision, and/or impact fees imposed 'under RC`s+ 52.02.050 through 82.02.090 may be required as a condition of subdivision approval. Dedications shall-be clearly shown on the final plat. No dedication, provision of public improvements, or impact fees imposed under RCW 32.02.050 through 82.02.090 shall be allowed that constitutes an unconstitutional taking of private property. The legislative body shall not as a condition to the approval of any subdivision require a release from damages to be procured from other property owners. L. McCORMACK c R. BUCKLIN ....DAL W. EBBERSON WILLIAM P. SCHOSL STEVEN L. THORSRUD MICHAEL C. WALTER ANDREW G. COOLEY STEWART A. ESTES DEBORAH D. BROOKINGS KEATING, BUC.KLIN & MCCORMACK, INC., P.S. ATTORNEYS AT LAW 800 FIFTH AVENUE, SUITE 4141 SEATTLE, WASHINGTON 92104 -3175 PHONE: (206) 623 -8861 FAX: (206) 223 -9423 E MAIL: kbmlawyers@usv:est.nel ADVANTAGES OF A HEARINGS EXAMINER SYSTEM Michael C. Walter CHLOETHIEL W. DeWEESE JAYNE L FREEMAN JAMES A. BURTON STEPHANIE E. CROLL MICHAEL D. TREGER RICHARD B. JOLLEY BRENDA L BANNON MARY ANN MCCONAUGHY (OF COUNSEL) ROBERT C. KEAT1NG (RET.) ▪ No political influence or. pressure. • Professional -- specially trained. • Experience with many different jurisdictions and regulations. • Technically adept -- knowledge of physical land development and technical feasibility. ■ More cost effective (reduce appeals and judicial challenges). O More efficient process (faster). • Substantial reduction in judicial reversal of decision. • Substantial reduction in potential legal damages claims against city. • Avoids potential legal claims against citizen - decision makers personally. • Good customer service. ■ Instills public confidence in decision - making process. • Helps ensure constitutional protection of Due Process of Law and Equal Protection. ■ Helps ensure predictability and consistency. ■ Skilled in understanding, interpreting and applying nuances of municipal code and general legal principles. • Hearing examiner helps satisfy new state law requirements for streamlining regulatory process and administrative review and appeals (1995 Regulatory Reform Act, R.C.W. Chapter 36.70B). • Segregates and clearly delineates quasi - judicial decision making functions from legislative (law - making) and long -term MMCW:07/97 planning functions. • Frees up city council and /or planning commission time for other, important planning_ and law- making functions. FINDINGS & CONCLUSIONS 1. PURPOSE. Ensure that the decision -maker has dealt fully and properly with all issues in the case, ensure the parties involved and a reviewing Court are fully informed as to the reasons for the decision. ?. STANDARD OF REVIEW. Findings of Fact and Conclusions of Law are subject to the same requirement as are findings and conclusions drawn by a trial court judge. 3. WHEN REQUIRED_ Any quasi - judicial decision by the final decision - maker. This includes, but is not limited to: (I) Permit appeals: (2) special use permits:; (3) conditional use permits: (4) variances; (5) boundary line adjustments; (6) site plans; (7) short plats; (8) major plats; (9) site specific rezones. 4. WHICH FATTERS. All matters which establish the existence or non - existence of determinative factual matters. Required to support each criteria for approval denial or imposition of conditions. 5. APPROPRIATE FINDINGS & CONCLUSIONS. A, Thinking process used by the decision -maker should be revealed by Findings and Conclusions. B. Each finding must be supported by "substantial evidence ". C. Findings must be based on evidence in the record. D. Findings should be clear, precise and understandable. E. Conclusions should always reference applicable standards, criteria and policies. o. NOT LEGALLY SUPPORTABLE FINDINGS. .A. Findings without evidence in the record to support them (information, facts or opinions that were not presented in testimony or in evidence at the hearing). B. Evidence which is speculative, conjectural or based on guesswork. C. Finding /Conclusions based on a "bclier "', a "feeling ", an "assumption ", an "anticipation ", etc. D. Statements of the positions of the parties. E. Summaries of evidence presented. • F. Findings based on stereorypes or popular prejudices. G. Findings based on assumption of future non - compliance with imposed conditions. 1-i. Findings that a project would "negatively impact" other properties. 1. Facts or conclusions which relate to the property owner, rather than to the land itself. 7. DEADLINE TO. ADOPT. By deadline in code or state law. Otherwise, within a "reasonable time ". FORM. (1) Separate document: (2) adoption by reference: or (3) in minutes. MORATORIA: GMA/PLANNING RULES I. SOURCE OF AUTHORITY A. RCW 36.70A.390 B. RCW 35.63.200 II. APPLIES TO A. Moratoria for land use planning B. Interim zoning map C. Interim zoning ordinance D. interim official land use control III. NOT APPLY TO A. Designation of critical areas, agricultural lands, forest lands, and mineral resource lands (RCW 36.70A.170) B. Conservation of above - designated lands under RCW 36.70A.060 IV. HEARING A. Must be held within 60 days of adoption B. If not before, must adopt findings of fact justifying decision at/immediately after public hearing C. Result in an ordinance V. DURATION A. Six months B. Exception -- up to one year if work plan developed with studies C. May be renewed for one or more six month periods (with subsequent public hearing and findings) I. AUTHORITY A. GMA/Planning -based 1. RC \'V 36.70A.390 (GMA) 2. RCW 35.63.200 (Planning Moratoria) B. Common Law (General) based: 1. Matson v. Clark Co.. 79 Wn.App. 691 (1995) 2. Swartant v. Spokane. 21 Wn.App. 665 (1978) 3. Humiston v. Meyer's, 61 Wn.2d 772 (1963) II. PURPOSE/FUNCTION MORATORIA & INTERIM CONTROL MEASURES A. Preserve the status quo B. Allow for thoughtful planning Respond to "emergency" situation C. Safeguard public health, safety and welfare III. TYPES OF MORATORIA (PLANNED v. DeFACTO) A. Planned 1. GivIA authorized (RCW 36.70A.390 and .790) 2. Common law (emergency situation) B. Defacto 1. Concurrency- driven a. Transportation b. Utilities (capacity or infrastructure) 2. Incorporation 3. Annexation MORATORIA: GENERAL RULES T. BASED ON AN "EMERGENCY" II. DEFINITION A. Unforeseen B. Sudden C. Unanticipated III. MUST BE ESTABLISHED THROUGH ORDINANCE IV. GENERAL RULES A. Keep narrowly tailored to specific harm 13. Limit duration (1 -2 years max) C. Always adopt through hearing process and ordinance D. Provide for variances/exemptions for hardship cases E. Provide process for administrative appeals V. ORDINANCE REQUIREMENTS A. Must contain facts to support an "emergency" B. Must be necessary for preservation of public peace, health, safety, welfare. C. Must have legitimate public purpose D. Can't be conclusory VI. EXAMPLES A. Utility capacity /infrastructure limitations B. Unforeseen and harsh effects on C. Development would violate GMA planning goals or concurrency D. Act of God disasters/emergencies E. Emergency financial damage to city F. Development or regulatory restrictions (orders) from state government/agency (DOE, DOT, D01-1) G. Unforeseen adverse impact an: 1 Schools 2. Fire services 3 Police services 4. Plan for flood control or emergency drainage 35.63.200. Moratoria, interim zoning controls — Public hearing — Limitation on length • A council or board that adopts a moratorium or interim r or interim zoning control, without. holding a public hearing on the propo Sd zoning control, shall hold a. public hearing on the adopted moratorium or interim zoning control within at least sixty days e omatter t from the the council or board received a recommendation the commission. If the council or board does not adopt findings of fact justifying its action before this hearing, then the council or board shall do so immediately after this public hearing. A moratorium or interim zoning control adopted under-this section may be effective for not longer than six months, but may be •_ effective for up to one year if a work plan is developed for related studies providing for such a longer period. A moratorium or interim zoning con rol riods may be renewed for one or more sic- nmlade h p o to each renewal subsequent p hearing is held and findings of fact are p 36.70A.390. Moratoria, interim zoning controls — Public hearing — Limitation on length — Exceptions A county or city governing body that adopts a moratorium, interim zoning map, interim zoning ordinance, or interim official control without holding a public hearing on the proposed moratorium, interim zoning map, interim zoning ordinance, or interim official control, shall hold a public hearing on the adopted moratorium, interim zoning map, interim zoning ordinance, or interim official control within at least sixty days of its adoption, whether or not the governing body received a recommendation on the matter from the planning commission or department. If the governing body does not adopt findings of fact justifying its action before this hearing, then the governing body shall do so immediately after this public hearing. A moratorium, interim zoning map, interim zoning ordinance, or interim official control adopted under this section may be effective for not longer than six months, but may effective for up to one year if a work plan is developed for related studies providing for such a longer period. A moratorium, interim zoning map, interim zoning ordinance, or interim official control 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. POTENTIAL LEGAL CLAIMS OVER MUNICIPAL LAND USE DECISIONS I. CIVIL RIGHTS ACTION UNDER 42 U.S.C. §1983. II. "INVERSE CONDEMNATION" OR "TAKINGS ". III. SUBSTANTIVE DUE PROCESS. IV. PROCEDURAL DUE PROCESS. V. STATE PERMIT STATUTE: RCW CH. 64.40. VI. INTENTIONAL INTERFERENCE WITH BUSINESS EXPECTANCY. VII. NEGLIGENT MISREPRESENTATION. VIII. NEGLIGENT ADMINI.STRATION OF REGULATION._ IX. NUISANCE X. I.L.LEGAL DEDICATIONS, FEES OR CONDITIONS. "MN L. McCORMACK LARK R. BUCKLIN ;1.ANDAL EBBERSON WILLIP.M P. SCHOEL STEVEN L THORSRUD MICHAEL C. WALTER ANDREW G. COOLEY STEWART A. ESTES DEBORAH D. BROOKINGS KEATING, BUCKLIN & MCCORMACK, INC., P.S. ATTO r■IEYS AT LAW 800 FIFTH AVENUE, SUITE 4141 SEATTLE, WASHINGTON 98104 -3175 PHONE: (206) 623 -8861 FAX: (206) 223 -9423 E -MAIL: kbmlawyersiguswest.net LAND USE LAW & MUNICIPAL LIABILITY RECOiMMENDATIONS FOR EFFECTIVE LAND USE RISK MANAGEMENT Presented for: WCIA Member Cities Michael C. Walter CHLOETHIEL W. DeWEESE JAYNE L FREEMAN JAMES A. BURTON STEPHANIE E. CROLL MICHAEL 0. TREGER RICHARD B. JOLLEY BRENDA L. BANNON MARY ANN MCCONAUGHY (OF COUNSEL} ROBERT C. KEATING (RET.) 1. INTRODUCTION This Memorandum is a general overview of risk management suggestions relating to land use planning, ,-. zoning, regulation and quasi - judicial decision - making for municipal officials and employees. The law of ;iunicipal land use liability is in a rapid state of expansion, and this Memorandum is intended to identify present, key high -risk areas in land use decision - making, and to provide suggestions for reducing potential legal claims against municipalities, elected officials and their employees. This Memorandum is intended as an outline, and is not an exhaustive treatment of issues presented. If in doubt about any land use action, municipal officials and employees should always consult their City Attorney. The information in this Ivtemorandum is intended for the exclusive use of Washington Cities Insurance Authority (WCIA) Member Cities and their employees only. This information is copyright protected by Keating, Buckiin & McCormack, Inc., P.S., 1996, and is not be used or reprinted in any way without the express, written permission of the author and/or iaw firm. II. GENERAL RULES FOR REDUCING LITIGATION EXPOSURE. A. Know your municipal code. Carefully review those sections of your code which are applicable to your duties, paying particular attention to both procedures and substantive requirements for decision making. 13. Follow all municipal code requirements. In general, the law does not permit municipal decision makers to deviate from code requirements, unless expressly authorized by the code or by state law. C. If in doubt about the validity, interpretation, or enforceability of a municipal regulation or application of your municipal code, seek advice of your City Attorney. WALTER, Risk Mgmt. Rec., -.. Page 2 D. Ensure that information given to the public is accurate and complete. Don't make representations of fact unless you are sure that the information is accurate and up to date. Don't guess at answers to questions from property owners. E. Always respond to requests and communications by property owners. This is simply good customer service. F. Consider the effect of every decision you make on the property owner. Ask yourself how your decision will affect the property owner's development rights and the owner's financial expectations. Consider how you are treating the property owner. In other words, put yourself in the property owner's shoes. G. Treat persons in the same class equally and consistently. The Federal and State Constitutions require that municipal legislation, regulations and policies be applied equally to persons in the same "class ". H. Ensure That Your City Has Good Legal Counsel. Your City Attorney should be schooled in land use law, administrative law, and general municipal taw. I. Follow strictly all state and municipal time limitations for land use approvals and hearings. Specifically, the 1995 Regulatory Reform Act, ESHB 1724, imposes specific time lines for the processing, reviewing and decision - making associated with landuse applications. If you are unsure of these or any other regulatory time limitations, check with your City Attorney. J. Whenever possible, use a Hearing Examiner. Hearing Examiners are specially trained, skilled individuals with particular knowledge in land use law and - the regulatory and administrative processes which implement the law. Hearing Examiners can help ensure legally supportable quasi - judicial decision - making and are an excellent form of risk- prevention. K. Don't let personalities dictate the action you take in conjunction with a land use application, appeal or decision. L. Don't do anything with the intent to frustrate the attempts of property owners to develop their land. M. Don't let politics interfere with land use decision - making. Politics has no place in the land use decision- making process -- either quasi-judicial or legislative. N. Don't make decisions based solely on potential secondary gain to the City. 0. Don't hide information from property owners. If requested, and within the 'ambit of the public disclosure laws, provide information that is requested. If in doubt, ask your City Attorney. � WALTER, Risk Mgmt. Rec., 'age 3 P. Don't use inappropriate words or conduct in legislative or quasi - judicial hearings or public meetings. Q. Don't give legal advice or legal opinions. Refer all legal questions to your City Attorney for response. R. Don't base land usc decision- making on prejudice, bias, race, age, ethnic background, handicapped status, or other discriminatory criteria. For example, the Federal Fair Housing Act and its amendments make it unlawful for any City to use discriminatory criteria in restricting the placement or operation of "group homes" or handicapped facilities in single family residential zones. S. Don't deny land use applications based solely on aesthetic criteria, unless your City has a clear and enforceable "design code ". Decisions based on vague or ambiguous design criteria are a "red flag" for Courts reviewing municipal decision - making. T. Never let friendships or business relationships enter into or affect your land usc decision making. U. Don't waive requirements of your municipal code in conjunction with land use applications. This could give rise to equal protection violation. V. Don't foster unrealistic expectations of property owners. Throughout the application, review and hearing process, be realistic and objective. Do not make promises. W. Communicate freely with other jurisdictions and agencies during the land development process. Don't make land use decisions in a "vacuum ". Some entities that the City should keep in touch with include: Department of Ecology (DOE); Department of Health (DOH); Washington State Department of Transportation (WSDOT); United States . Army Corps of Engineers; Washington State Department of Natural Resources; and Department of Fish and Wildlife. M. LEGISLATIVE RISK 'MANAGEMENT A. If in doubt about the validity of a municipal ordinance, regulation or policy, seek advice of your City Attorney. B. Ensure that there is a rational basis for every ordinance or resolution. Base the ordinance or resolution on facts supporting prevention of a public harm, protection of the public health, safety or welfare, or adding to the economic well -being of the City. Every piece of legislation must have one or more of these as a basis to ensure constitutionality. WALTER, Risk Mgmt. Rec., ?age 4 C. Moratoria Ordinances. These should be a last resort. Use them sparingly. Moratoria Ordinances are allowable only in response to an emergency situation. There must be a bona fide emergency. All moratoria ordinances should: 1. Have a "sunset clause" -- limited duration (recommended 6 months); 2. Limited application -- narrowly tailored (limit specifically to, (for example, Residential building permits); 3. Protect vested rights -- moratoria ordinances should not extinguish or Restrict property owners' vested rights; 4. Contain a factual predicate establishing the nature and extent of the emergency; 5. Contain waiver or variance provisions to alleviate exceptional hardship; 6. Be in compliance with RCW 35.63.200. .D. All legislation should be: clear, easy to understand and follow; not vague or discretionary; always reviewed by the City Attorney. E. Consider including "waiver" or "variance" provisions in high risk legislation. For example, risky or controversial land use regulations such as critical areas ordinances, or design review regulations, etc. These provisions can help reduce hardship created by the legislation on specific classes of individuals meeting specific criteria. Include a hearings and review process. F. With respect to new regulations, consider adopting a process to include a determination of the economic effect of the regulation on private property. Courts will scrutinize property regulation to determine if the Cities have taken into account the economic impact of new regulations in determining whether a "Taking" of property has occurred. G. Establish a sound basis for land use and environmental regulations through: (1) good comprehensive planning; (2) detailed background studies; and (3) expert testimony. H. He creative and flexible in regulating land. Consider creative approaches to balancing property rights with protecting public interest such as through waiver or variance provisions, transfer of development rights, flexible zoning mechanisms like PR.D's and PUD's, density transfers, bonus point ,allocations, etc. L For all legislation which imposes impact fees or requires dedications of land, on new developments, follow strictly the requirements of RCW 82.02, et seq.. Ensure that the legislation establishes a rational, equitable basis for the calculation of any fee or determination of property dedication, in conformance with Dolan v. City of Tigard. ',WALTER, Risk Mgmt. Rec., :age 5 S. Throughout your decision - making process, keep in mind how municipalities and property owners differ in their understanding of the land use approval process. Generally, property owners see the land development process as a "business" with economic interests at the heart of the process. Municipalities, on the other hand, utilize discreet agencies (planners, environmentalists, public works, etc.) To create decisions which satisfy, to some extent, each of the discreet agencies. In short, municipalities do not operate like a business, although property owners would like the process to work more like a business. K. Eliminate internal conflicts in your municipal code, and conflicts between your code and other land use regulations. L. When developing new critical or sensitive -areas regulations (regulations governing wetlands, steep slopes, unstable soils, etc.), use the "best available science" to determine the type and extent of the regulations. When used to regulate, these regulations must result in the "least onerous" means to achieve the desired results. IV. OUASI - JUDICIAL RISK REDUCTION. A. Make a good, administrative record of reasons why a particular decision is made. The reasons should be clear, and articulated in conjunction with standards for review and approval from your municipal code or from state law. B. Ensure that there is sufficient evidence in the record to support your decision to either grant, deny or condition applications or permits. The "quantity" of evidence generally required is "substantial evidence ". Evidence can be in the form of studies, tests, surveys, reports, planning documents or testimony. Generally, the more evidence, the better. C. Ensure that for each quasi- judicial decision, findings of facts and conclusions of law arc prepared. Again, ensure that there is "substantial evidence" in the record to support each finding of fact. D. In approving permits, don't go beyond the express requirements of your municipal code or state law. Do not add new requirements that are not contained in your code, mandated by, state law or utilized through adopted policy. E. When imposing conditions on a land development project, ensure that each condition is: (1) reasonable; (2) clear and specific; (3) proportional to the harm created by the proposed project; and (4) capable of being accomplished. F. Make a good, clear record of quasi- judicial decision- making. Hearings should conform to municipal procedures and state law. All public hearings should be recorded. All exhibits should be clearly identified and labeled. Have witnesses identify, themselves by name, address, etc. WALTER, Risk IVIgmt. Rec., Page 6 G. The standard of review for quasi - judicial decision- making is, in most cases, "arbitrary and capricious ". Action is "arbitrary and capricious" when it is willful and unreasoning or taken in disregard of the facts and circumstances. H. Consider all of the evidence offered. Do not refuse to receive documents or testimony in conjunction with quasi - judicial decision - making. V. MINISTERIAL PERMIT PROCESSING/DECISION- MAKING. A. Keep in mind vested rights! (See §VI). B. Use an "intake sheet" at permit counter. For all applications, have the applicant complete an intake sheet, including the applicant's name, address, phone number, date, nature of permit, etc. C. Use "intake sheets" for general inquiries. Use the intake sheet described in §V.B., above. For general inquiries, identify the nature of the inquiry and the information given by the municipal employee. D. Follow carefully state and local requirements for permit application information. For all permit applications, ensure that you are following state and local standards in determining the information sought. The State Building Code, RCW 19.27, requires, for example, certain specific information to be requested on all building permit applications for any work costing more than $5,000.00. E.. Ensure that all building permit applications include evidence of adequate potable water source or supply. This is a GMA and building code requirement. The evidence can consist of either a DOE permit, a water availability letter, or another form of "proof' sufficient to satisfy the City. F. Process all permits in a timely and consistent manner. Ensure time compliance with the deadlines set forth in the Regulatory Reform Act, ESHB 1724, and all municipal regulations. G. Don't deny development permits based on aesthetic criteria alone, unless your code specifically authorizes this through a design review process. H. Don't ignore permit violations. Ignoring or failing to act on known land use permit violations can expose the City to civil liability. I. Set up a uniform procedure for investigating and addressing permit violation complaints. Get as much information on the permit violation as possible. Establish and follow a procedure after the complaint, in which the complaint is routed to an . inspector, handled promptly, inspected adequately, and in which some response is made or action is taken. In all cases, notify the complainant of the outcome through written correspondence. ,r WALTER, Risk Mgmt. Rec., Page 7 4 J. Where state law or municipal code does not provide an answer, adopt written policies and guidelines to fill -in the gaps. Many issues are not addressed by state statute, municipal ordinance or by other permitting standards, such as the Uniform Building Code. In such cases, the City should "fill -in the gaps" with its own written policies and procedures. K. Don't waive municipal code requirements for permits. L. In issuing permits, don't go beyond the express requirements of your code or state law. VI. VESTED RIGHTS A. Remember vested rights. The constitutionally -based doctrine of "vested rights" prohibits cities from changing zoning or land development regulations after the property owner has submitted a sufficiently complete application which is in compliance with then - existing zoning and other land use laws in effect. Once the elements of vested rights have been established, the City cannot apply newly adopted zoning or development regulations to that application or project. B. Vested rights apply to the following: (1) Major plats and short plats (RCW 58.17.033); (2) Building permits (RCW 19.27.095); ( SEPA threshold decisions; and (4) Virtually any kind of land development permit (i.e., grading permits, shoreline permits,conditional use permits, etc.). C. Vested rights do not apply to the following: (1) Original zoning or rezones; (2) Comprehensive plans; (3) Variance applications; (4) Written studies or analyses; or (5) Site Plans. D. In order to obtain "vested rights ". The property owner must: (1) Submit an application - - in writing; (2) The application must be in conformance with the then- existing zoning and "other laws" of the City; and (3) Must be "sufficiently complete ". ( 'WALTER, Risk Mgmt. Rec., Page 3 E. Completeness. (1) Full plats/short plats and building permits: standard is "fully complete ". All municipal requirements must be fully complied with before the application is deemed "complete" for vesting. All other permits: standard is "substantially complete ". Something less than "fully complete ". Cities can define, through ordinance, what makes a "complete" application for purposes of vesting. Cities are encouraged to adopt such ordinances for all land use applications. Mr. Walter is a ptarmer in the law firm of Keating, Bueklin & McCormack, P.S.. a Scant: law firm emphasising municipal litigation. Mr. Walter joined the firm in 1984, and defends municipalities and other public agencies in land use related lawsuits and civil rights claims arising out of L use decision - making. As pert of his practice, Mr. Walter has provided land use, risk management training for donerct of 'Washington municipalities and public agencies. He is a 1983 graduate of the University of Puget Sound School of Law, and received two Bachelor of Arts degrees from the University of Washington in 1980. ° October, 1998 by Keating, Buctlin & McCormack. P.S. • Mission Springs v. City of Spokane 134 Wn.2d 947 (April 23, 1998) BACKGROUND FACTS Mission Springs, a private real estate developer, sought to develop a "planned unit development" (PtJD), comprised of 790 apartment units located in 33 separate buildings in the City of Spokane. The City's hearing examiner approved the PUD application, subject to various conditions which were acceptable to Mission Springs. After the approval, Mission Springs was statutorily vested to build out the planned improvements for a period of five years. Mission Springs obtained grading and building permits for the apartment buildings in early 1993, but, for reasons of its own, did not utilize them prior to their expiration in May 1994. In October 1994, Mission Springs submitted a new application for a grading permit identical in form to the old one containing all of the components required by the Spokane Municipal Code. Spokane's building official briefed the Spokane City Council and stated that the grading permit was ready to be issued and that the legal department had reviewed the process and agreed that the permit should issue. Notwithstanding, the City Council withheld the grading permit for several months under the guise of investigating public health and safety issues associated with the project. The Council members were advised by the City Attorney that a refusal to issue the permits would be a charter violation. The Council did not follow this advice, and passed a motion refusing to grant the grading permit. In refusing to grant the permit, the City Council was attempting to cater to a citizen activist organization and to ". . . the other members of the community who have serious concerns about the traffic problems up in that area . ". In ignoring the recommendation of the building official and the advice of the city attorney, one council member stated: "We have the opportunity to put a stop to this [project] and let's just see what happens. Let's see how confident they [the developers] are. If they bring a suit, we can always turn around and issue the permit, that's an option still available to us." Mission Springs, at 956. PLAINTIFF'S CLAIMS AND TREORIES AGAINST THE CITY AND CITY COUNCIL MEMBERS Mission Springs sought damages and attorney fees from the City of Spokane, the City Manager, the City- Council, and each individual member of the City Council for civil rights and statutory violations resulting from the wrongful withholding of a grading permit. The plaintiffs also sought injunctive relief COURT'S DECISION • The issuance of a permit, like a grading permit, is not a matter of discretion, but is ministerial. The applicant is entitled to immediate issuance of the permit upon satisfaction of relevant ordinance criteria. The permit may not be withheld at the discretion of a local official to allow time to undertake further study. Mission Springs, at 960 -961. • Arbitrary or irrational refusal or interference with processing a land use permit violates substantive due process. The action was "willful and unreasoning, taken without regard to or consideration of the facts and circumstances surrounding the action, because it acted A Mission Springs v. City of Spokane Page 2 • without lawful authority in unreasoning and willful disregard of the permit applicant's lawful entitlements." Mission Springs, at 962. • The City Council in Mission Springs was liable because it interjected itself into the administrative process reserved to the City Manager, notwithstanding clear and unequivocal charter mandate to the contrary. Mission Springs, at 971. • Council members and the City Manager were Liable because they rejected lawful, mandatory requirements for the processing and issuance of grading permits codified in state statute and local ordinance without justification. The City Code did not permit delay in the issuance of a building or grading permit while the municipality reconsidered the PUD approval which it had granted previously. Although the Council's irrationality was objectively established by the departure from the mandatory legal process, the court noted that the irrationality was further dramatized by the overt rejection of advice from the City's own attorney in favor of the defiant cause of action. The court said: "The Spokane City Council. received well - founded legal advice from its city attorney which it chose to disregard." !v!ission Springs, at 961. • Mission Springs had a constitutionally protected property right in the grading permit it sought. The right to that permit and to use and enjoy land is a property right which the City, City Manager, and City Council violated by willfully disregarding Missions Springs' lawful entitlements. Mission Springs, at 962. • City Council members who improperly interfere with the process by which a city issues land development or construction permits deprive the permit applicant of his property absent that process which is due. The City Council purposefully abrogated the mandatory process which otherwise would have resulted in issuance of the grading permit to Mission Springs. Mission Springs, at 965 - 66. • Had the City Council repealed the earlier ordinance approving ylission Springs' project upon an appropriate finding of changed, circumstance, there may have been a. different situation. But it did not. Nor was there a delay caused by foot dragging or inefficiency. The City Council purposefully abrogated the mandatory process which would have otherwise resulted in permit issuance. • Members of the City Council were not entitled to legislative immunity because the motion passed by the Spokane City Council was not legislation generally applicable to the entire community but, rather, an act directed specifically at Mission Springs. Thus, the act was administrative or executive in nature, not legislative, and therefore legislative immunity was not available in this case. e Keating. Bucti!n &McCor+nack. Inc_, P.S., (July. 2000) CHOOSE YOUR WORDS CAREFULLY I. HIGH RISK WORDS Suitable > Practicable Belief % Like Assume '- Old Feeling % Harmony • Style > Sensitive to • Reasonable > Character • Compatible > Impression • Similar to > Unique New r Significant Public Good > Public Interest • Mood > Appropriate II. MANDATORY WORDS • Shall • Must i Required • Mandatory III. ADVISORY (NOT REQUIRED) WORDS . r Should May > Prefer Can IV. DEFINITIONS A. Define words in code or standards B. Definitions should be: Clear Unambiguous Understandable to lay persons C Undefined terms: 1. Will be vi'."en plain and ordinal meaning 2. Dictionary lletrnition