May 29, 2008

Keeping infill projects predictable and on schedule

Developers can avoid problems by locking in rules, engaging neighbors and planning staff, and performing due diligence on the property.

By AARON LAING
Schwabe, Williamson & Wyatt

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Laing

For better or for worse, Washington state has two competing land-use mandates. One is designed to curb sprawl while the other aims to minimize development-related impacts on neighboring property owners. These two mandates create growth management demands that require developers to go beyond simply complying with zoning and building codes.

More than ever, subjective factors such as aesthetics and neighborhood compatibility are turning development into a negotiated art rather than an engineering-driven science.

The following tips are meant to help infill developers navigate what has become a complex legal landscape. Putting these tips into practice should go a long way in keeping projects moving forward quickly and predictably.

Lock in the rules

There are few things more bewildering and frustrating to developers — or people in general — than when the rules are changed mid-game. Thankfully, Washington is among a minority of states that still recognizes the need to fix the rules at the outset. This is referred to as the vested rights doctrine.

To ensure that the rules are not changed mid-game, a developer must submit a complete application for either a building permit or a permit to subdivide land. By submitting a complete application, a developer vests the project to the rules in place at the time the application was submitted.

Unless otherwise stated in a city or county code, only applications for building permits and subdivisions can be vested. This can pose a problem for an urban infill development, which often does not involve the subdivision of land. For example, a mixed-use condominium project may be proposed to occupy a single, undivided parcel. Or the project may be a master plan, which itself creates the applicable on-site zoning regulations. Neither of these types of projects would vest in most jurisdictions.

One solution is to submit a building permit application with the mixed-use project or a subdivision application with the master plan. Another solution is to use a developer’s agreement.

Taking one of these two steps is especially important to avoid having a design review board change the aesthetic criteria late in the game. So long as all procedural requirements are met, the rules should be locked in for the duration of the project.

Engage staff early, often

Developers are the customers of the local jurisdiction’s planning and development services staff. Typically, each jurisdiction has a service counter and offices full of well-trained, dedicated professionals to assist and guide the process. As customers, developers pay fees for the services provided in project review. However, it is important to remember that the customer is not always right. Early, consistent and clear communication with staff is key.

Most jurisdictions have a process that allows, or requires, a pre-application meeting with staff. Required or not, developers should go through this process, since ultimately it will be the staff recommending approval or denial of the project.

In addition to communicating regularly with the staff, make sure communication is in writing, keeping in mind that the burden is on the developer to show that all requirements are met. Missing information and disagreements about what has been communicated can be major setbacks when a project finally goes to hearing.

Engage neighbors early, often

A NIMBY (not in my backyard) is not actually a native Washington species. That is to say, NIMBYs are made, not born. Like most of us, neighbors simply want to be informed and have a say in things that will affect — for good or bad — their quality of life. Home is sacred.

Developers can avoid, or at least reduce, neighbor issues by engaging the local stakeholders early in the process. Neighbors will surprise a developer with their knowledge of local traffic issues, protected plant and animal species, school issues and other matters that state law requires developers to address. If not engaged early on, neighbors can surprise the developer by bringing up issues at the project hearing, often with a remark or two about how the developer has overlooked or ignored them throughout the process.

Land use decisions are invariably political. It is a mistake to ignore constituents, and a bigger mistake to wait until a hearing to respond to their concerns. Often, the hearing officer will hold open the record or send the process back a step to allow neighbors to more fully explore the issues and provide comment. The result is delay and uncertainty. If neighbors are engaged early in the process, this can be avoided.

The staff can also be particularly helpful in engaging the neighbors, as the staff is often perceived as being neutral. The staff can help educate neighbors as to the regulations and what is and is not legally required of the developer. Not surprising, neighbors tend to put more credence on the staff’s position than the developer’s.

As with the staff, an early meeting with neighbors can reduce and eliminate issues down the road, helping to keep the project on track.

Know the property’s past

Developers looking to renovate or remove an older building may run into historical preservation and environmental issues that will stall or even kill the project. Over the past few years, several Washington cities passed and refined historical preservation regulations, making it essentially impossible to redevelop certain sites. Environmental regulations can also be very strict, depending on what existed on the site before.

When it comes to preservation, the guidelines are not always clear: A site may not seem worth preserving to the developer, but the city may have a wholly different thought. Beyond simply preserving the past, historical preservation serves a secondary role as a means of preserving affordable housing. This ups the ante for local jurisdictions fighting to maintain a mix of housing to serve a broad range of incomes.

There are options however, sometimes called controls and incentives, to allow for some redevelopment of historical sites. But be warned, the process is often a lengthy and costly battle of lawyers and expert witnesses. Developers should determine whether a property is a candidate for historical preservation prior to investing in redevelopment.

With regard to environmental regulations, almost all infill development can be thought of as recycling. Infill projects reuse land, often for a new and different use. Developers must be wary about what past owners used the property for and get the facts preferably before investing.

Sometimes, knowing the ownership chain is not enough. The site may have held an apartment building for the past 30 years, but before that a gas station with a dry-cleaning business out back. Few things can be more costly and lead to more delays than the discovery, often in mid-excavation, of contaminated soils or groundwater.

Such an unpleasant discovery will usually do two things: stop the project and start a lawsuit. To avoid this, due diligence should involve some level of environmental review, especially soils testing.

There are, of course, many other considerations to be made on any infill project. But heeding the above tips should set the course for a timely and predictable completion.

Aaron Laing is a land use attorney with the Northwest law firm of Schwabe, Williamson & Wyatt. He is based in Seattle.

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