Whatcom County Permit Extension Ordinance Invalidated
On August 2, 2011 the Western Washington Growth Management Hearings Board (the “Board”) invalidated Whatcom County Ordinance No. 2010-067, which provided a one-time economic hardship extension of land use permit expirations. The Ordinance allowed property owners to extend the vested status of land use permits, which were set to expire between December 2010 and March 2012, for an additional two years.
For example, someone with a vested conditional use permit, which was to expire on January 1 2011, could apply to extend the conditional use permit such that it would not expire until January 1, 2013. In order to obtain the extension, the applicant was required to attest that the extension was necessary due to adverse market conditions and/or an inability to secure financing. The Ordinance itself expired in June of 2011, meaning that no hardship extensions were granted after June of 2011.
Despite the expiration of the Ordinance, the Board ruled the Ordinance to be invalid. The Board found that Whatcom County did not comply with the State’s Environmental Policy Act (“SEPA”) and Growth Management Act (“GMA”). The Board’s order can be found here. The Board further remanded the Ordinance for compliance with SEPA and the GMA, meaning that Whatcom County must somehow bring its expired ordinance into compliance with these state statutes.
It is unclear what this decision means for property owners who obtained hard ship extensions under the Ordinance. Pursuant to the GMA, rulings of invalidity are prospective in nature and generally do not apply to vested project. Some may argue, however, that because the extensions granted under the Ordinance are ongoing, the Board’s order may affect these extensions.
Thus, the Board’s order may lead to uncertainty in regard to the status of permits that were extended under the Ordinance. Also unclear is the process the County will use to bring the Ordinance into compliance with the Board’s order. The County will likely be addressing these issues later this fall. I will provide more information on this topic as it becomes available.
