Exactions, Impact Fees, and Dedications

                 Transportation, Parks, Fire, and School Impact fees

Impact fees are charges assessed by local governments against new development projects that attempt to recover the cost incurred by government in providing the public facilities required to serve the new development. Impact fees may only be used to fund facilities, such as roads, schools, and parks, that are directly associated with the new development. They may be used to pay the proportionate share of the cost of public facilities that benefit the new development; however, impact fees cannot be used to correct existing deficiencies in public facilities.  I am able to assist by challenging impact fees that have been improperly calculated, or the assessment of fees that do not conform with applicable legal requirements.

Dedications

A dedication is the exaction of a property interest required by government as a condition of approval for a project.  In order to comply with rulings of the United States Supreme Court, a dedication of property as a condition of development permit approval must be roughly proportional to the impact of a proposed development.  I am able to assist by challenging dedication requirements that have been based on improper criteria.

State Statutes Regulating Land Use

Washington's State Environmental Policy Act (SEPA)

SEPA was adopted in 1971 and is Washington’s most comprehensive environmental protection law.  It requires that environmental values be considered by local and state agencies when making decisions on land use proposals.  It provides substantive authority to jurisdictions to mitigate or deny projects based on environmental protection policies adopted by the jurisdiction.  There is both a procedural and informational gathering aspect and or substantive aspect to SEPA.  Most SEPA litigation focuses on the procedural aspects because the substantive authority is discretionary. Local jurisdictions may deny or condition permits based on SEPA but they are not required to do so. As a result, SEPA’s substantive authority is commonly utilized by citizens when attempting to persuade the decision-maker to condition or deny a permit.  I am able to assist clients by advocating for proper SEPA conditions, and challenging procedural irregularities.

Washington's Growth Management Act (GMA)

The GMA provides a framework for regional coordination. Counties planning under the GMA are required to adopt County-Wide Planning Policies to guide and achieve consistency among the plans adopted by the county and cities within the county.  Local comprehensive plans must include the following elements: land use, housing, capital facilities, utilities, transportation, and, for counties, a rural element. Shoreline master program policies are also an element of local comprehensive plans

Washington's Shoreline Management Act (SMA) and the federal Coastal Zone Management Act (CZMA)

The state Shoreline Management Act (SMA) was enacted in 1971, and its purpose is to manage and protect the shorelines of the state by regulating development in the shoreline area.  The federal Coastal Zone Management Act incorporates the SMA.  I can assist property owners in obtaining shoreline substantial development, conditional use, and variance permits.  When an appeal from a local permitting decisions is necessary, my experience allows me to advocate before the state Shorelines Hearings Board. 

Federal Statutes Impacting Land Use

The National Environmental Policy Act

The National Environmental Policy Act of 1969 (“NEPA”) was the first major federal environmental law enacted in the United States.  All environmental issues, from air pollution to wetlands protection and beyond, fall within the purview of NEPA.  Therefore, while the statute contains few substantive requirements, the scope of the law is broad and requires review of many areas.  NEPA is a procedural statute, and review under the statute commonly requires either an environmental assessment or an environmental impact statement.  I am able to assist clients by guiding them through NEPA’s labyrinthine requirements.

Endangered Species Act

The ESA was passed in 1973 to protect threatened or endangered species from further harm. The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS) enforce the ESA. Under the ESA, FWS and NMFS utilize consultations and permit actions to protect those species and their critical habitat.  In addition, ESA is included as part of the EPA stormwater Construction General Permit (CGP) requirements, and therefore is important to the development industry.  Construction or development activities that may harm a listed species or its habitat are subject to various requirements.  My familiarity with the ESA allows me to endure that my clients are able to circumnavigate the various federal requirements efficiently in order to obtain necessary permits.

Clean Water Act

Section 404 of the Clean Water Act requires that anyone interested in placing dredged or fill material into a water of the United States, including wetlands, must receive authorization prior to doing so. The Corps has been assigned the responsibility for administering the Section 404 permitting process. Activities in wetlands for which permits may be required include, but are not limited to: placement of fill material, certain ditching activities, levee and dike construction, mechanized land clearing, land leveling/grading, most road construction, and dam construction.  I assist my clients in obtaining necessary 404 permits.

Flood Protection Issues

A permit is required for any development in the flood plain, including fill and grading.  For new construction, structures must comply with local standards, including the elevation of the first floor, in order for the property owner to be eligible for the purchase of flood insurance.  Flood insurance is mandatory in order to receive any federally related assistance, including any mortgage backed by federal agencies, such as FHA and VA.  Flood insurance and flood plain permit requirements are undergoing significant changes as a result of technology improvements by FEMA that allows more accurate mapping of flood hazard risks, and as a result of catastrophic national losses by the flood insurance program caused by hurricanes in the southeast.  I have significant experience working with federal and state agencies on flood hazard issues.

Subdivisions, Binding Site Plans, Planned Unit Development (PUD’s), and Boundary Line Adjustments.

Binding Site Plans

A binding site plan is an alternative method of land division authorized by state law.  Binding site plans may only be used for divisions for (1) industrial or commercial use, (2) lease of mobile homes or travel trailers - typically a mobile home park, and (3) condominiums.  A specific binding site plan provides exact locations and detail for the type of information appropriately addressed as a part of property division, such as infrastructure, and other requirements typical of subdivisions.  I am able to assist clients in understanding the site plan process, and identifying issues at an early stage.

Boundary Line Adjustments

A boundary line adjustment is the reconfiguration of property lines without the creation of additional lots.  Boundary line adjustments can frequently be used to resolve disputes between neighbors, particularly when issues of adverse possession arise, and before a great deal of animosity is developed.  I assist clients in working through boundary line disputes efficiently and effectively.

Subdivisions

In Washington, land is most frequently subdivided using the long plat and short plat processes.  I assist clients with applications, public hearings on preliminary plats before hearing examiners and planning commissions, during construction, and obtaining final plat approvals,

Planned Unit Developments

A PUD is a large, integrated development, developed under unified control according to a master plan.  PUDs are characterized by a varied and complementary mix of land uses, such as housing, recreation, commercial centers, and industrial parks.  Local PUD development regulations provide more flexibility than traditional zoning.  Frequently, PUDs cluster development on smaller lots on one or several portions of the site, leaving the remainder of the site undeveloped.  Clustering allows environmentally sensitive areas to be protected, and can provide recreation areas, open space, and other amenities on the site. The developer generally will be able to achieve a greater number of developable lots or units when he or she can design around environmental constraints.  I am able to provide guidance in obtaining PUD approvals.

Zoning – including floating, overlay, performance and mixed-use zones

Variance and Conditional Use

A variance is a waiver of one or more specific physical (rather than use) standards, such as bulk, yard, or site coverage when that standard creates a particular hardship.  I am able to identify site constraints so as to develop a convincing argument in favor of a variance.

Eminent Domain (condemnation)

Eminent domain is the exercise of the power to take private property after the payment of just compensation and following due process of law. Proceedings to take property under eminent domain are referred to as "condemnation" proceedings.  Government has the power of eminent domain to take private property for public purposes; private parties have the power to take property in certain situations, such as when property is “landlocked.”  Eminent domain is a unique area of the law.  I assist my clients by ensuring that the price paid by the condemning party is fair.

Transfer Development Right (TDR) Agreements and Development Agreements.

Transfer of development rights "is a mechanism for removing the development rights from one property and transferring them for use on another property.  The owner who sells development rights from his/her property retains property ownership and certain rights to use the property, but not the right to develop the property. The purchaser of these rights typically uses them to develop another property at higher density.

A development agreement is a contract between a local government and a person who owns or controls property within the jurisdiction.  The purpose of the agreement is to specify the standards and conditions that will govern development of the property.  The development agreement provides assurances to the developer that the development regulations that apply to the project will not change during the term of the agreement. The city or county may require conditions to mitigate project impacts, and clarification about project phasing, and timing of public improvements.

I have negotiated both forms of agreements, and am able to assist my clients in coming up with a suitable agreement.

Annexations and Annexation Agreements

Cities in Washington may annex territory in accordance with state law, which varies somewhat by city classification.  Cities and towns located in counties that plan under the Growth Management Act may only annex property that is located within their designated urban growth areas.  Typically, cities will use one of the two petition methods, or the election method.  Annexations are complex procedures, which implicate a number of different government entities and processes.  I have counseled municipal clients on numerous annexations, and have appeared before boundary review boards in different counties.

Local Improvement Districts

Local improvement districts (LIDs) and road improvement districts (RIDs) are financing vehicles, in which properties that will be specifically benefitted from a public improvement are assessed fees over time in order to pay for the cost of the improvement.  Neighborhoods may seek the formation of an LID in order to obtain the benefits of particular improvements, such as paving a roadway or the installation of sidewalks or sewers.  Developers may also seek the formation of an LID, in order to pay for the improvements that are necessary to develop property.  I have provided legal counsel to local governments on the formation of LID’s, and participated in writing an LID manual to guide local governments.