21.76.090 Post-Approval Actions | Redmond Zoning Code

21.76.090 Post-Approval Actions.

A. Purpose. The purpose of this chapter is to detail actions that a development applicant or the City may take after approval of the development application.

B. Commencement of Activity. Except for Master Planned Development approvals, approvals for Shoreline Substantial Development, Shoreline Conditional Use, and Shoreline Variance approvals, approval of a Type I, Type II, Type III, Type IV, and Type V permits are assumed valid unless overturned by an appeal decision. Project activity commenced prior to the end of any appeal period, or withdrawal of, or final decision on, an appeal, may continue at the sole risk of the applicant; provided, however, that:

1. Where the applicant begins project activity prior to the end of any applicable appeal period, site restoration performance assurance in an amount sufficient to restore the site to the predevelopment state shall be required.

2. Where the applicant begins or continues project activity after an appeal has been filed, only project activity that will be unaffected in any way by the outcome of the appeal will be allowed.

3. If the appeal concerns project activities that alter or affect a natural or undeveloped area, such activities shall not be allowed pending withdrawal of, or final decision on, the appeal.

4. If the appeal concerns project activities that alter or affect a historic landmark, such activities shall not be allowed pending withdrawal of, or final decision on, the appeal.If project activity has begun and is subsequently discontinued pending the withdrawal of or final decision on an appeal, then proper erosion control measures shall be maintained in accordance with the provisions of local, state, and federal law. Project infrastructure improvements in progress at this time shall be secured and shall be maintained in a safe condition pending withdrawal of, or final decision on, the appeal. For Shoreline Substantial Development Permit approvals, Shoreline Conditional Use Permit approvals, and Shoreline Variance approvals, see RZC 21.68, Shoreline Master Program.

1. Approval of a Type I, II, or III application shall expire two years from the date approval was final unless significant action proposed in the application has been physically commenced and remains in progress. This expiration excludes preliminary plats subject to expiration under RZC 21.74.030.E.

2. The period may be extended on a yearly basis by the approval authority upon showing proper justification. Proper justification consists of one or more of the following conditions:

a. Economic hardship;

b. Change of ownership;

c. Unanticipated construction and/or site design problems;

d. Other circumstances beyond the control of the applicant determined acceptable by the Technical Committee.

3. Once the time period and any extensions have expired, approval shall terminate; and the application is void and deemed withdrawn.

4. Shoreline Substantial Development Permits, Shoreline Conditional Use Permits, and Shoreline Variances. See RZC 21.68.200.C.9.

1. Purpose. The purpose of this section is to establish a procedure to allow modification to an approved project.

2. Scope. This section governs requests to modify any final approval on a project granted pursuant to this chapter of the RZC, excluding all approvals granted by passage of an ordinance or resolution of the City Council. For Shoreline Substantial Development Permits, Shoreline Conditional Use Permits, and Shoreline Variances, see RZC 21.68.200.C.8.

a. Applications that seek administrative modification that meet the criteria below shall follow the procedures established in RZC 21.76.050.G for a Type II permit process, without the requirement for public notification

b. Applications that seek administrative modification for additional square footage shall follow the procedures established in RZC 21.76.050.G for a Type II permit process.

a. The Administrator may determine that an addition or modification to a previously approved project or decision will require review as a new application rather than an administrative modification, if it exceeds the criteria in subsection D.4.b below.

i. If reviewed as a new application rather than an administrative modification, the modification shall be reviewed by the same body(ies) that reviewed the original application. If the application resulting in the approval which is the subject of the request for modification was reviewed by the Design Review Board, then the Board shall review the request and make its recommendations to the appropriate body. The criteria for approval of such a modification shall be those criteria governing original approval of the permit which is the subject of the proposed modification.

b. A proposed modification or addition will be decided as an administrative modification, if the modification meets the following criteria:

i. No new land use is proposed;

ii. No increase in density, number of dwelling units, or lots is proposed;

iii. No changes in location or number of access points are proposed;

iv. No reduction in the amount of landscaping is proposed;

v. No reduction in the amount of parking is proposed;

vi. No increase in the total square footage of structures to be developed is proposed; and

vii. No increase in height of structures is proposed to the extent that additional usable floor space will be added.

5. A modification that does not meet the criteria in subsection D.4.b of this section, but does not add more than the lesser of 10 percent or 6,000 gross square footage, may be reviewed as an administrative modification, as approved by the Administrator.

1. The Administrator may determine that any approved permit should be revoked upon a finding that one or more of the following conditions exist:

a. The permit was issued in error and the revocation is made within the 21-day appeal period under the Land Use Petition Act, RCW 36.70C; or

b. Approval of the permit was obtained by misrepresentation of material fact; or

c. The permit is being exercised contrary to the terms of approval.

2. Except as provided in subsection E.3 below, the Administrator shall provide the property owner and permit applicant at least 21 days’ written notice of the Administrator’s intent to revoke the permit. Revocation will automatically occur upon the date specified by the notice unless the property owner or permit holder files an appeal as provided in the appropriate section of this title. If an appeal is filed, revocation shall not take place unless and until the appeal is concluded, and then only if the decision of the Administrator is upheld, provided that at the request of the Administrator, and after notice and opportunity to be heard has been provided, the Hearing Examiner may issue an order at any time during the appeal proceedings to require that the property owner or permit applicant cease the use or activity for which the permit was approved pending conclusion of the appeal, if the Hearing Examiner determines that the Administrator’s decision is likely to be upheld and that irreparable harm will likely result if the use or activity is not ceased.

3. The Administrator may revoke a permit on less than 21 days’ notice or upon no notice at all if, but only if, the property owner’s or permit holder’s continued activities will result in imminent danger to person or property or otherwise create irreparable harm. In the event of such an extraordinary situation, the property owner or permit holder may file an appeal of the revocation and seek an expedited appeal hearing. Such an expedited hearing shall take place at the earliest opportunity, and shall be given priority over any other matter on the Hearing Examiner’s schedule that may be legally delayed.

Bonds User Guide

1. Purpose. The purpose of this section is to establish the requirements for the posting of performance assurance and warranty assurance in order to ensure timely and proper completion of improvements, to ensure compliance with the RZC, to ensure compliance with land use permit approval conditions, warranty the quality of materials or workmanship of improvements constructed as a condition of land use permit approval, or to warranty survival of landscaping.

a. Applicability. The provisions of this subsection RZC 21.76.090.F apply whenever any provision of the RZC requires the posting of performance assurance or warranty assurance in connection with any land use permit approval, including but not limited to land division approvals, land use permit approval conditions, landscaping plan approvals, tree protection, tree replacement, and critical areas mitigation.

b. Exemptions. State agencies and local government entities, including special purpose districts, shall not be required to secure the performance or warranty of permit or approval conditions with a surety bond or other performance or warranty assurance device. These public agencies are required to comply with all requirements, terms, and conditions of the permit or land use permit approval, and to provide a letter committing to completion of the improvements.

a. Requirements. Whenever a performance or warranty assurance is required by any provision of the RZC or by any condition of land use permit approval, the performance or warranty assurance shall meet the general standards set forth in this section as well as the specific requirements set forth in subsection F.4.a below

b. Performance Assurance. The applicant shall provide an estimate of the costs of the improvements, landscaping, tree replacement, or other conditions of land use approval to be secured by the performance assurance. The Administrator shall review the estimate and shall use the same to calculate the required performance assurance amount if the Administrator deems the estimate to reflect reasonably the anticipated costs. In the event that the Administrator disagrees with the estimate, the Administrator may use the City staff’s best estimate of the actual anticipated costs to calculate the required performance assurance amount.

c. Warranty Assurance. The amount of the approved warranty assurance shall be not less than 10 percent of total construction costs.

d. Form. All performance assurance and warranty assurance devices shall be in a form approved by the Administrator and City Attorney. All surety companies shall be authorized to conduct surety business in the State of Washington. No individual sureties shall be allowed.

e. Release. A performance assurance shall not be released by the Administrator unless and until the required performance has been completed and accepted by the City and the required warranty assurance, if any, has been provided. A warranty assurance shall not be released by the Administrator unless and until the work has been inspected and accepted following the warranty period.

f. Enforcement. The City may enforce the performance and warranty assurances required by this section according to their terms, pursuant to any and all legal and equitable remedies available. Any performance or warranty assurance is subject to enforcement by the City in the following manner:

i. In the event that performance is not completed as required, or a warranty assurance is not furnished as required, or defects have been identified during the warranty period, the Administrator shall notify the applicant and the guarantor in writing, which shall set forth the performance that is incomplete, or the specific defects which must be remedied or repaired, and shall state a specific time by which such actions must be completed.

ii. In the event that the performance is not completed, or the defects are not remedied or repaired by the specified time, the City may proceed to perform the work either by force account, using City forces, or by private contractor. Upon completion of the work, the cost thereof, plus interest at the rate of 12 percent per annum, shall be due and owing to the City from the applicant and the guarantor as a joint and severable obligation. In the event that the City is required to bring suit to enforce maintenance, the applicant and guarantor shall be responsible for any costs and attorney’s fees incurred by the City as a result of the action.

iii. In the event that the performance or warranty assurance is in the form of a deposit of cash held by the City, the City may deduct all costs set forth in this subsection from the cash on deposit; and the applicant and guarantor shall be required to replenish the same for the duration of the assurance period.

a. Land use permit applicants shall post performance and warranty assurances as required in the Table below:

Table 21.76.090 Performance and Warranty Assurances
Assurance Type	Performance Assurance Amount	Performance Assurance Period	Warranty Assurance Amount	Warranty Assurance Period	Specific Standards
Improvements required as a condition of land use permit approval	Not less than 150 percent of the estimated cost of construction of installation, provided, that the City Engineer or Administrator may set a higher amount based on complexity of the project.	Subdivisions - 3 years after final plat approval. Other land use permit approvals - as required by condition.	As determined by City Engineer based on complexity of project, but a minimum of 10 percent of total construction costs.	1 year	Subdivision improvement performance assurance must be furnished prior to recording of final plat. Performance assurance for other land use permit approvals must be furnished prior to final approval. Warranty assurance must be posted prior to City’s acceptance of improvements or determination of compliance with condition of approval.
Landscape	150 percent of cost of plant materials, irrigation, fertilizing, and labor	1 year	10 percent of the Performance Security	one year after installation	None
Tree Protection	150 percent of City’s Tree Base Fee for each protected tree	5 years	N/A	N/A	Prior to issuance of the certificate of occupancy, any protected tree found to be irreparably damaged, severely stressed or dying shall be replaced according to the standards identified under RZC 21.72,Tree Preservation.
Tree Replacement	150 percent of cost of plant materials, fertilizing, pruning, and labor	1 year	150 percent of cost of plant materials, fertilizing, pruning and labor	3 years	In the event a required replacement tree becomes irreparably damaged, severely stressed or dies, the tree shall be replaced according to the standards in RZC 21.72,Tree Preservation.
Critical Area Mitigation	125 percent of cost of mitigation project (installation, maintenance and monitoring)	5 years	N/A	N/A	The security may be reduced in proportion to work successfully completed over the security period which shall coincide with the monitoring period and may be extended if the mitigation project does not succeed. A contingency plan for mitigating the impacts of the functions and values of the critical area shall be established in the event that the mitigation plan fails.