Permitting flexibility can save viable projects

LeAnne Bremer

One recent example of this flexible approach involved the city of Vancouver, which, after some back-and-forth between the developer and the city, resulted in the resurrection of a project that was all but dead. In this case, the prior developer had received final plat approval in 2009 to develop 78 single-family attached lots in a zone that allowed 22 units per acre. This prior owner, like many others, succumbed to the financial crisis at the time and lost the project to its bank. For years, the project sat dormant. Many developers looked at acquiring the project but could not make it pencil out, primarily because of a city regulation requiring the lots to have a maximum of 50 percent coverage of impervious surfaces. With small lots to begin with (in the 1,560 to 3,356 square-foot range), 50 percent coverage meant very small attached houses. All developers who examined the project concluded it would not be marketable.

As time went on, one developer came forward and agreed to buy the project from the bank if the city would grant a variance allowing for 60 percent lot coverage. Thus, the negotiations with the city began. The criteria for a variance are difficult to meet. It involves a three-part test, including requiring the applicant to demonstrate that unusual conditions apply to the property or intended use that do not generally apply to other property. This was the variance criterion that the city initially believed could not be met in this case.

After several meetings and failed attempts at reaching an understanding, the developer eventually advised the city that this criterion regarding unusual circumstances or conditions is not limited to topographical or geographical conditions. The developer pointed out that economic and market conditions – in conjunction with an approved plat with uniquely sized and shaped lots that are limited to 50 percent lot coverage – was an unusual condition or circumstance preventing the development of the project. The size and shape of the approved lots were unique to the area, and it was the developer’s belief, based on industry knowledge and experience, that this type of lot pattern would not reoccur under current or future conditions even though surrounding properties might have the same zoning.

In the end, the city agreed with this analysis by taking a broad view of the phrase “unusual circumstances or conditions,” and granted the variance. It did not require the city to ignore its code, only to apply it in a way that made sense under the circumstances. These, as well as more official programs, are the types of approaches that can stimulate development activity and the economy in general.

LeAnne Bremer is the partner-in-charge of Miller Nash LLP’s Vancouver office, where she focuses on land use and real estate law. She can be reached at 360-619-7002 or leanne.bremer@millernash.com.

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