By Mike Walsh
The Jan. 5 editorial by The Herald Editorial Board sides with the state Supreme Court on its recent decision upholding a requirement that local governments must apply certain stormwater rules to a specific, limited number of development projects. This decision will force some land owners to redesign their site plans to comply with stormwater regulations that took effect after their complete development applications were submitted.
This is an unfair mandate that will do nothing to address the real problem — older, existing developments that have very little or no stormwater controls whatsoever. State vesting statutes require complete applications for building permits and certain land use approvals to be considered under the “zoning or other land use control ordinances in effect” at the time the application is filed. Once a developer has submitted an application and it’s deemed complete, the project is vested to the current codes at that time.
Vesting is crucial to ensuring certainty, stability and fairness in the development process. Homebuilders, many of whom are small businesses, depend on vesting to successfully plan new communities on time and within budget, two factors critical to housing affordability and attainability.
Unfortunately, this decision drives up costs for everyone. It will require not only some homebuilding projects to undertake an expensive redesign to come into compliance with the new rules, but developers of important public facilities as well. It also should be noted that Snohomish County and Washington state, before this ruling, already had some of the most stringent stormwater controls in the nation. Projects now forced back to the blackboard
met those strict standards.
Even more concerning is the bad precedent the decision sets regarding vested rights. To purchase raw land for development and construction of new homes, a builder must put up a significant amount of equity. Without the certainty and protection vesting provides, changes in land use regulations could suddenly and unexpectedly drive up costs and make it unfeasible to move forward with planned projects.
Removing vesting also injects significant inefficiency on the public sector during the development process. Planning staff now may have to review the same applications two or three times as regulations change during review. Finally, predictability is lost, which is a benefit to all interested parties involved in a particular land development.
As The Herald Editorial Board correctly noted, the court’s decision will affect very few development projects relative to the stormwater regulations in question. A far bigger issue for the environment is that the court’s decision does nothing to address the significant number of “grandfathered” existing developments — going back as far as the ‘40s and ‘50s — throughout Puget Sound, many of which were built without stormwater controls.
If we are serious about addressing the negative impacts of pollutants reaching the Sound and protecting the environment, then we should focus efforts and resources on retrofitting existing neighborhoods where stormwater controls are absent, or not up to current stormwater manual standards, and are causing harm.
Mike Walsh is president of the Master Builders Association of King and Snohomish Counties.
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