Staff mistakenly led Council to adopt a loophole in the moratorium that would have allowed development to vest

By Miki Mullor

In a blunder by Sammamish City Staff, the City Council was mistakenly led to adopt a loophole in the building moratorium that was enacted last week.  

The loophole, a result of compounding errors made over 15 years, would have allowed developers to acquire rights to develop while skirting the new concurrency rules. 

And with Town Center developer STCA working to get more permits approved, the mistake could have been disastrous had STCA been able to take advantage of the loophole. 

The Sammamish Comment was able to independently confirm staff’s mistake was unintentional.

Another mistake, this time procedural, renders ineffective the action taken by the Council last week adopting the loophole.

A special City Council meeting is now scheduled for Monday to close the loophole while maintaining the intent of the moratorium. 

At the same meeting, and unrelated to this blunder, City Council conditionally backed Council Member Ken Gambln’s call to initiate a formal investigation of the circumstances that led to the issuance of concurrency certificates to STCA Phase I in August 2019. 

Gamblin’s call followed a cameo by former Council Member Tom Hornish who also called for an investigation during public comment. 

Moratorium exemptions – not unusual   

The City of Sammamish is currently under a building moratorium in response to the ruling in the Gerend vs. Sammamish case.  The ruling by the Growth Management Hearing Board (GMHB) invalidated a portion of the new concurrency rules because of procedural deficiencies (unrelated to that described above) of how those were adopted. The ruling originally gave the City six months to remedy the deficiencies. This is now extended by additional four more months.  It is normal for cities to adopt moratoriums following such rulings in order to prevent development applications to vest under incomplete rules. 

Vesting is an important concept in development law. It’s a legal milestone that freezes the local development regulations that apply for a development permit application to the day that application was filed.  Sometimes it may take several years from when a developer applies for a permit until construction actually begins.  Vesting gives the developer certainty that a local government doesn’t change the development regulations in that period.  

Concurrency is considered a development regulation. Because the GMHB invalidated the V/C concurrency regulation, any development application that would be filed and vested before the City finished fixing the procedural problems the GMHB pointed out, would not have been subject to V/C concurrency.

Exemptions to a moratorium became a loophole 

It is common to exempt certain types of permits from a moratorium. Permits for repairs, government buildings and schools, building decks and pools, and sometimes short plats (4-9 homes, depending on the ordinance) are often exempted. When the City Council adopted the moratorium, it asked staff to bring back options to add exemptions to the moratorium. 

On Tuesday night, the Council adopted a change to the moratorium to turn it into a moratorium on applying for concurrency certificates from a moratorium on applying for permits.  Staff recommended this approach because it is a “low-burden option for staff administration.”

Staff assured the Council that a concurrency certificate is required before a developer can submit a development application; thus developers will not be able to vest under the moratorium. 

But it ain’t so.  It used to be this way until September 2018, but not anymore.

The Comment alerted members of City Council on Tuesday night that in reading the City code, it is clear a concurrency certificate is not required to submit an application, contrary to staff’s assumption. Therefore, under the newly adopted changes to the moratorium, developers could apply for permits and vest completely free from the checks and balances of V/C concurrency. 

Deputy Mayor Christie Malchow confronted staff with The Comment’s assertion, who acknowledged it is correct.

A fix is in the works

In an email statement, Kate Langsdorf, the City’s Communications Manager, said that “yes, you are correct that an applicant could have attempted to submit an application on the premise that an approved concurrency certificate is not a requirement for a complete application.”

In the days since the discovery by The Comment, staff worked to trace and uncover how such a critical error could have been made.  A lengthy research memo written by David Pyle, Director of Community Development, traces a host of compounding errors in how City code was written that go back as far as 2004. 

Dave Rudat

In an email statement, Interim City Manager Dave Rudat told The Comment that it’s the responsibility of City Hall staff is to update and clarify City ordinances so they reflect the governing decisions reached by the governing City Council. 

“While none of the current City Hall staff were present during 2004 when SMC Title 14A was written, it is still the City’s responsibility to update and revise such ordinances so that it accurately reflects the decisions as mandated by City Council. My staff and I are fully committed to revising and clarifying this and other ordinances,” said Rudat. 

A special City Council meeting is now scheduled for Monday to correct the mistake and plug the hole in the moratorium.  Pyle’s memo has been published in the agenda packet for the meeting.

Gamblin’s call for an investigation 

Unrelated to the moratorium fiasco, Council Member Gamblin called for an investigation by the City’s newly hired attorney, Peter Eglick, of the circumstances that led to the controversial issuance of concurrency certificates to STCA’s 400 homes Town Center project. 

Ken Gamblin

As we reported in the summer, the surprise issuance of the certificates exposed staff’s policy of using  unapproved traffic projects, to justify an increase in growth.  In response, the City Council ordered an audit of the traffic engineering actions. 

Gamblin now calls for a broader legal investigation of all the circumstances that led to the issuance of the concurrency certificates. While he wasn’t specific, such investigation may include anything from interviews of personnel to a complete revocation of the certificates, if warranted.

Former Council Member Hornish told the Council during public comment that he too believes a legal review of staff’s actions is warranted. 

“I would implore the city council to consider directing a legal review of all of the facts and circumstances surrounding the issuance of concurrency certificates after the 2019 TIP was adopted, including the STCA Phase I concurrency certificate.” Hornish was on the Council at the time.

Tom Hornish

Malchow and Hornish both said that the City Council in the past was told by the City Attorney that the certificates cannot be revoked. Malchow conditioned her support for an investigation in getting a different opinion from Eglick on whether concurrency certificates can be revoked.  

The Council voted 5-2 to direct the Interim City Manager to obtain an opinion from Eglick on whether an investigation could lead to revocation of STCA’s concurrency certificates.  Council Members Pam Stuart and Jason Ritchie voted against. 

“Having only been on the team for a couple of months, I’ve identified areas of our operations that need significant attention and I’m investing time into improving functionality. The community won’t thrive if we don’t take exceptional care of it, “ said Rudat. 

“All that said, an investigation on past performance and operations may very well be needed and, should the council decide to direct me to execute said investigation, they can count on me to make sure it’s handled appropriately.” 

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