State laws foster development, while court decision may spell trouble for builders
In the midst of a struggling-but-showing-signs-of-life economy this year, Washington state lawmakers passed one measure specifically designed to foster family-wage jobs in the land development and homebuilding industries.
They also passed another measure that could indirectly lead to more development.
First, spurred by the economic downturn, SSB 6544 was passed by lawmakers to give property owners more time to finalize their subdivisions and construct houses. Under prior law, owners with preliminary subdivision approval had five years to install roads and utilities and convert that paper approval into final, salable lots. In addition, once an owner recorded a final plat, that owner had five more years to construct buildings on those lots.
Many approvals for preliminary or final but vacant subdivisions were soon to expire. SSB 6544 extends these five-year periods to seven years each. Lawmakers felt that allowing plats to expire would make it difficult for the state to meet its housing needs in the future, cause owners and staff to duplicate work already done and further reduce development-industry jobs, rather than preserve family-wage jobs.
Next, the passage of EHB 1653 has the potential to stimulate development. The new law settled an issue floating around the courts for years: it determined that the Shoreline Management Act, not the Growth Management Act, regulates critical areas such as wetlands and floodplains within 200 feet of the shoreline of major water bodies such as the Columbia River and Lacamas Lake.
The significance of the distinction is that the SMA could accommodate more development than the GMA in critical areas. If a GMA critical-areas ordinance applied to shorelands, for instance, the GMA requirement of best available science may dictate that no development can be allowed.
On the other hand, the SMA permits development near shorelines when it is "carefully planned, managed, and coordinated in keeping with the public interest." Many believe that development is less restricted under SMA regulations than under GMA regulations, although that could change if a county or city updates its shoreline programs to adopt more regulation.
Coincidentally, in a May 10 decision on Citizens for Rational Shoreline Planning v. Whatcom County, the Court of Appeals opened the door to potentially greater shoreline regulation by limiting an owner's ability to challenge current or new local shoreline rules that may restrict development. A Washington statute (RCW 82.02.020) prohibits municipalities from regulating development in certain ways unless the regulation is reasonably necessary as a direct result of the proposed development. The Court of Appeals ruled that this statute does not apply to regulations contained in local shoreline programs; these programs are mandated and approved by the state Department of Ecology and RCW 82.02.020 does not apply to state regulations.
There is a significant question whether local shoreline programs, such as Clark County's, are in fact state regulations. Many fear that the ruling would lead to more restrictive shoreline regulations – such as expansive no-build zones on private property – that cannot be challenged under this powerful statutory curb.
Given the significance of this ruling, many predict that this case will be heard by the Washington Supreme Court. Stay tuned.
Bremer is a real estate and land use attorney at Miller Nash LLP in Vancouver. She can be reached at leanne.bremer@millernash.com or 360.699.4771.
