A development agreement is a voluntary contract between a property owner and a local government to establish the rules that will direct the development, use, and mitigation of a specific property. The intent of Washington’s development agreement statutes is to reduce development costs by providing increased regulatory certainty. The local government’s legislative body must approve a development agreement by resolution or ordinance following a public hearing, and the development agreement must be recorded against the property at issue.
A development agreement can be thought of as a site-specific land use code for the topics covered in the agreement. Revised Code of Washington (RCW) 36.70B.170 authorizes the use of development agreements to establish “development standards,” which are broadly defined to include virtually every aspect of a development. These include:
- Project elements, including permitted uses, residential and non-residential densities or building sizes
- The amount and payment of any impact fees, inspection fees, dedications, or reimbursements
- Mitigation measures, development conditions, or other requirements of the State Environmental Policy Act
- Design standards such as maximum heights, setbacks, drainage and water quality requirements, landscaping, and other development features
- Affordable housing
- Parks and open space preservation
- Development phasing
- Review procedures and standards for implementing decisions
- A build-out or vesting period for applicable standards
- Any other appropriate development requirement or procedure
A development agreement is enforceable during its term and is not subject to zoning ordinances, development standards, or regulations that are adopted or amended after the agreement’s effective date. Thus, a development agreement is one of the few ways to enjoy the protection of Washington’s vested rights doctrine, which generally holds that a land use application will be considered only under the land use statutes and ordinances in effect at the time the complete application is submitted.
Significantly, “[a] permit or approval issued by a county or city after the execution of a development agreement must be consistent with the development agreement,” according to RCW 36.70B.180. Thus, for example, if a development agreement addresses required project mitigation, subsequently issued permits and approvals must include mitigation requirements that are consistent with the terms of the agreement.
Project-specific development agreements are also subject to the state’s Land Use Petition Act (LUPA), which is the exclusive means to obtain judicial review of most land-use decisions. LUPA includes a strict 21-day appeal period, which means that if an appeal of a development agreement approval is not timely filed, the appeal is barred and the development agreement land-use decision becomes final and unchallengeable because the court lacks jurisdiction to hear the appeal.
An important corollary to LUPA’s time bar is that a valid land-use decision cannot be collaterally attacked through a LUPA appeal of a subsequent land-use decision that relied upon the prior valid decision. Thus, if a development agreement is unchallenged within LUPA’s statutory time limit, subsequent permits and approvals—for example, a site development permit, critical areas permit, grading permit, or subdivision approval—that relied upon the mitigation and other conditions expressed in the development agreement may become immunized from challenge, provided the subsequent mitigation or conditions are consistent with the terms of the prior development agreement.
A downside of development agreements is the substantial investment of time and effort that are often required to negotiate the agreement and shepherd it through the local government’s legislative process. However, if a project is unique or will likely require substantial mitigation, a development agreement offers several potential benefits that should be considered when developing a land use permitting strategy.
