Published December 2003

Lawsuit asks: Who zones for urban growth area?

By Scott Morris
Herald Writer

Questions about who gets to plan and zone a city’s urban growth area have led to a lawsuit in Stanwood. That suit also could have ramifications in Arlington and Marysville — and possibly statewide.

The Master Builders Association of King and Snohomish Counties is suing Stanwood because of a recently adopted policy that forces developers to play by the city’s rules — instead of county rules — on unincorporated land in the urban growth area.

The city has this leverage because it is the sole provider of sewer and water services in the urban growth area.

Stanwood’s new policy, enacted Oct. 16, allows the city to withhold those utilities until a developer agrees to abide by city code, even though the project is not within the city limits.

David Toyer of the Master Builders Association said the city policy is illegal. Many cities, including most in north Snohomish County, have less-dense zoning than the county. That doesn’t sit well with the building industry.

“It’s almost extortion, to a degree, if you’re the only game in town” providing utilities in that area, Toyer said.

Each city has an unincorporated urban growth area immediately outside the city limits, as mandated by the state Growth Management Act. The cities must expand within those areas first, via annexations, to curb sprawl.

Toyer said Marysville and Arlington have placed similar conditions on developers. Arlington sent the issue back to a City Council committee after a developer sued earlier this year.

“The issue for some of these jurisdictions is if they want control over the urban growth areas, they need to annex,” Toyer said.

Marysville’s rules have drawn less controversy, perhaps because its rules are more similar to the county code, city planner Gloria Hirashima said.

Stanwood city attorney Bill Zingarelli preferred not to comment on the pending litigation.

But the city’s position was spelled out in a staff report that responded to comments from the Master Builders Association.

“The city is not exercising police powers beyond its boundaries, merely setting conditions under which it is willing to engage in a voluntary contract” to provide utilities, city planner Stephanie Cleveland wrote.

Cleveland’s report notes that a previous court decision allowed cities to set “reasonable conditions” on providing utilities.

“Since the urban growth area is the city’s established area for future annexation ... it is reasonable that developments in this area should meet basic city development regulations,” she wrote.

Dave Eldridge, a member of the Stanwood Planning Commission who supported the ordinance, said he was surprised by the lawsuit.

“Ultimately, since it’s in the urban growth area, it’ll be in the city of Stanwood anyway,” Eldridge said. “We felt it should be compatible with city code to avert problems in the future. It just seems logical to me.”

Toyer of the Master Builders Association said cities should resolve any code discrepancies through official agreements with the county instead of dictating the terms. Marysville Mayor Dave Weiser said the city has reached such agreements, in some cases.

Negotiating agreements between the county and its 19 cities is ideal but difficult because each has its own standards, said Randy Sleight of Snohomish County Planning and Development Services.

Arlington city attorney Steve Peiffle said the case has the potential to set a precedent for the state.

“This is an issue that has not been directly decided by a court of appeals or the Supreme Court, and so I think at some point that unless the Legislature clarifies it, the courts are going to have to,” Peiffle said.

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