H-1522

AN ACT Relating to the imposition of moratorium or interim zoning by permit-granting agencies; adding new sections to chapter 36.70 RCW; adding new sections to chapter 36.63 RCW; adding new sections to chapter 35A.63 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The declaration of moratoria on construction and land development by any permit-granting agency or the imposition of an interim zone may have a negative effect on the policies and goals of state and other local governments within the state, and therefore is a matter of state-wide concern. Such moratoria or interim zoning, particularly when limited in duration and scope and adopted pursuant to growth management systems that further the community planning goals and local comprehensive plans, may be both necessary and desirable.

However, clear state standards should be established to assure that the need for moratoria or interim zoning is considered and documented, the impact on necessary development and particularly housing is minimized, and necessary and properly enacted moratoria or interim zoning are not subjected to undue litigation.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout sections 2 through 8 of this act.

(1) "Moratorium" means a pattern or practice of delaying or stopping issuance of permits, authorizations, or approvals necessary for the subdivision and partitioning of real property or development on real property or any construction pursuant to such a permit.

(2) "Permit-granting agency" means any branch of state government which is a lead agency or an agency with jurisdiction under the state environmental policy act, chapter 43.21C RCW, involved with the development, subdivision, or construction on real property.

(3) "Facilities or resource-based emergency" means the emergency which exists with respect to facilities or resources when the projected development within an area will result in the creation of a demand or impact on the facilities or resources which will exceed the capacity of the facilities or resources within the period of the moratorium or interim zoning. Facilities may include transportation, sewer, water, storm water, or septic systems. Resources may include any property or interest identified as environmentally sensitive, including but not limited to agricultural or timber lands, ground water, surface water, shorelines and wetlands, and air. Capacity or permitted levels of contamination must be measured by existing adopted regulations at the state, federal, or local level.

(4) "Land use emergency" means the emergency which exists when an unanticipated change occurs in a community or upon the adoption of a change in plan in a community which creates a situation in which a community may lose the benefits of planning unless a moratorium is imposed or an interim zone is adopted. Development which occurs in accordance with an adopted comprehensive plan or proposed changes to adopted plans may not be considered an unanticipated change for purposes of declaring a land use emergency.

(5) "Interim zoning" means a deliberate and purposeful device designed to classify or regulate uses of land and related matters and is necessary to preserve the zoning scheme as presented to the public in the comprehensive plan and attendant maps and resolutions or ordinances.

(6) "Regulation" means a statute, rule, or standard adopted by the permit-granting agency to establish standards, procedures, or criteria for the subdivision, development, or construction of real property.

NEW SECTION. Sec. 3. Any permitting agency seeking to adopt a rule or ordinance which would impose a moratorium or interim zoning because of facilities, resources, or land use emergencies, shall only adopt such regulation as provided in this section.

(1) If the permit-granting agency deals through a planning agency, the matter must be recommended by the planning commission and adopted by the governmental board, council, or commission of the permit-granting agency. Any other permit-granting agency must effect the action by regulation adopted by the governing board. All such regulations must be approved by an affirmative vote of not less than seventy-five percent of the governing board.

(2) In the event of a facilities or resource-based emergency, notice and hearing are not required if the following findings are reasonably documented by the permit-granting agency:

(a) The current level, service, or current contaminant level of the affected facilities or resources;

(b) The adopted regulation defining capacity of the facility or safe levels of potential contaminants in the affected resource. However, if the affected resource is drinking water, ground water, aquifers, or air, the adopted standard for emergency purposes may not be more stringent than the standards adopted through state or federal regulations;

(c) The factors which demonstrate that capacity or safe levels for potential contaminants will be exceeded during the period of the moratorium or interim zoning ordinance;

(d) The factors which demonstrate that the scope and definition of the moratorium or interim zoning ordinance will serve to equalize the effect of the moratorium or interim zoning over all property owners to the extent possible and not merely limit the effect to a select few.

(3) In the event of a land use emergency, notice and hearing are not required if the following findings are reasonably documented by the board:

(a) The nature of the change in the community and the reason it was unanticipated;

(b) The factors which make the interim rules during a moratorium or interim zoning period consistent with adopted comprehensive plans;

(c) The geographic extent of the emergency and the reason the boundaries selected are the minimum necessary to deal with the identified emergency;

(d) The facts which demonstrate why the prohibited development or activity which will be shifted out of the area affected by the emergency during the period of moratorium or interim zoning will not cause an emergency in nearby or adjoining areas to which the prohibited development or activity would likely shift;

(e) The facts which demonstrate that the cost to the public of the consequences of the unanticipated change will be greater than the cost to the property owners within the area affected by the emergency; and

(f) The nature and extent of the public resources which demonstrate the permit-granting agency can resolve the emergency within the time limits identified in subsection (4) of this section.

(4) No moratorium or interim zoning shall be effective for a period longer than one hundred twenty days, but such a moratorium or interim zoning may be extended provided the city, county, or special district adopting the moratorium or interim zoning:

(a) Finds that the problem giving rise to the need for a moratorium or interim zoning continues to exist;

(b) Demonstrates that reasonable progress is being made to alleviate the problem giving rise to the moratorium or interim zoning; and

(c) Sets a specific duration for the renewal of the moratorium or interim zoning. A moratorium or interim zoning may be extended more than once but no single extension may be for a period longer than six months.

A renewal shall only be after a notice and public hearing.

A renewal shall require reconfirmation of the factual issues identified in subsections (2) and (3) of this section.

NEW SECTION. Sec. 4. The municipality shall document any decision made in sections 3 through 8 of this act as required by chapter 43.21C RCW. In the event the environmental review officer determines the initial action exempt by reason of RCW 43.21C.110, as defined in WAC 197-11-890, the municipality shall not extend the moratorium or interim zoning as provided in section 3(4) of this act without an environmental assessment and appropriate action as required under chapter 43.21C RCW.

NEW SECTION. Sec. 5. A permit-granting agency that adopts a moratorium or interim zoning shall, within sixty days after the effective date of the moratorium or interim zone, adopt a program which seeks to correct the problem creating the moratorium or interim zoning. The program shall be presented at a public hearing. The permit-granting agency shall give advance notice of the time and date of the public hearing.

NEW SECTION. Sec. 6. Any ordinance regulating a moratorium or interim zoning shall identify the criteria by which the permit-granting agency will determine vested projects. The ordinance shall provide that all applications on file, for which the initial fee has been paid, shall be processed to completion under existing rules even if the state environmental policy act review has not been completed or several approvals must be obtained prior to the issuance of building permits.

NEW SECTION. Sec. 7. Any moratorium or interim ordinance adopted on an emergency basis, including the emergency section under the state environmental policy act, WAC 197-11-880, is null and void unless the procedures in sections 3 through 6 of this act are followed.

NEW SECTION. Sec. 8. Any person aggrieved by violation of this section may enforce this section by action in superior court in the county in which the moratorium or interim zoning takes effect. The successful party in any action shall be entitled to reimbursement of reasonable costs and fees, including attorneys' fees.

NEW SECTION. Sec. 9. Unless the context clearly requires otherwise, the definitions in this section apply throughout sections 9 through 15 of this act.

NEW SECTION. Sec. 10. Any permitting agency seeking to adopt a rule or ordinance which would impose a moratorium or interim zoning because of facilities, resources, or land use emergencies, shall only adopt such regulation as provided in this section.