December 8, 2011

Lay of the Land -- Permits: Hope for the best, prepare for an appeal

There are some good tidings for developers even in the gloom of a sluggish economy. Permit turnaround times are generally quick in local planning departments, and many contractors, builders and design professionals are eager to take on new projects at competitive prices.

Barring any financing issues, all this can help developers and owners get their projects built more quickly and efficiently.

But one risk is as strong as ever: having your project appealed by a neighbor, citizen group or even a competitor.

In my work defending land use approvals I have seen appeals by neighborhood groups and associations flourish, even during this recession.

In many cases the impetus — if not the funding — behind these appeals is really a competitor of the developer, a labor group or some other organization that is unnamed in the appeal.

In Washington, standing requirements are relatively lax and that allows just about anyone with even a minor interest in a project to appeal. The wise developer approaches every project approval as one that later could go under a microscope.

So how do you keep your project from being derailed?

Here are some important early steps you can take, as well as tips for deciding how much time and money to expend in the effort.

Start with the basics

Project approvals are sometimes remanded on simple issues that should have been spotted early in the process, so be sure that your design professional or other consultant has read all the code provisions that apply to your project to verify that it complies with each of them. Here are some standards to consider:

• Use restrictions. Is your proposed wireless communications facility or urgent care clinic a permitted use in this neighborhood?

• Development standards. How far must a wireless facility be set back from the street and how high can you build?

• Approval process requirements. Who decides whether the permit gets issued and when, and have the required public notices been issued?

The importance of these basics cannot be overstated. Failure to comply with a simple development standard or a procedural defect in processing the applications can easily become the basis for getting an approval overturned on appeal.

City or county planners can be a valuable resource for understanding how a local government interprets and applies its codes. But Washington's case law is full of cautionary tales of approvals that were overturned because the court found that the local government had misinterpreted or failed to follow the letter of its own code, or used the wrong approval process.

Thus, when faced with a code provision that is unclear, have an attorney or consultant provide input. In some cases, it may be worth asking the local government for an administrative interpretation or some other written assurance to clear up the issue.

Make a record

Some of the standards local governments apply when considering a land use application are clearly defined and objective, relating to facts that can be readily proven or disproven, such as height, bulk and scale regulations. Other standards, however, are open to a broad range of interpretations relating to fact, degree and value.

For example, decision makers are often called upon to determine whether a proposal is “consistent” with the jurisdiction's land use policies — which can be a long list of vague, somewhat contradictory, goals and aspirational statements. Generally, the more subjective the standards, the more critical it is to make a record for your project by submitting studies, project documents and similar materials so that the decision makers can fully evaluate possible impacts, mitigation and other factual matters relating to the approval standards.

Calculate risk

How much should you invest in consultants, studies and other strategies to make your project less vulnerable to appeal? That depends on what is at stake for your particular project.

If your project requires only an administrative approval that can be fully reviewed and issued in 90 days, and it's possible to reapply if the first application is denied, less front-end spending on consultant and attorney time may be justified.

It's a different matter if the final decision will be subject to public notice and comment, a fact-finding hearing before a hearing examiner or a hearing before the local legislative body, plus the possibility of a Superior Court appeal, which is available under state law for just about any land use decision.

Each of these processes could add six months or more to the process. Faced with such potentially costly delays, not to mention the cost of restarting the application process, the wise developer will seek to insure that his or her initial permit application has been thoroughly vetted.

Also try to gauge whether a neighbor or competitor is eagerly awaiting the chance to challenge your project. Certain types of uses are subject to challenge far more than others. These include prisons, landfills and high-traffic generators such as large retail stores. For these types of projects, hope for a smooth ride but prepare for an appeal.

Clayton Graham is an attorney at the Seattle office of Davis Wright Tremaine LLP.