In last month’s Bulletin, we included a brief note reminding folks that the deadline to either create an alternative permit review schedule or be held to the statutory timelines in SB 5290 (2023) was approaching – January 1, 2025. Because this bill seems to be generating more questions than usual, AWC wanted to provide more information and hopefully, shed a bit of light into the darkness of statutory interpretation.

The threshold question to address is can a city change the timelines in SB 5290? Yes.

Here are the provisions outlining the permit timelines requirement in RCW 36.70B.080 (emphasis added and restructured for clarity but in the exact order as the statute with no words added):

(d) The time periods for local government action to issue a final decision for each type of complete project permit application or project type subject to this chapter should not exceed the following time periods unless modified by the local government pursuant to this section or RCW 36.70B.140:

The statute expressly allows modification if that modification comports with this section. Here are the statutory deadlines if a modification isn’t adopted:

(i) For project permits which do not require public notice under RCW 36.70B.110, a local government must issue a final decision within 65 days of the determination of completeness under RCW 36.70B.070;

(ii) For project permits which require public notice under RCW 36.70B.110, a local government must issue a final decision within 100 days of the determination of completeness under RCW 36.70B.070; and

(iii) For project permits which require public notice under RCW 36.70B.110 and a public hearing, a local government must issue a final decision within 170 days of the determination of completeness under RCW 36.70B.070.

Here’s the language that outlines how a city can modify the above:

(e) A jurisdiction may modify the provisions in (d) of this subsection to add permit types not identified,

In addition to identifying permits by public notice/hearing, a city can add permit types that are not tied to public notice/hearing.

change the permit names or types in each category,

If a city doesn’t want to use the public notice/hearing structure of identifying permits, they can use something different. We do think each city needs to have a 65-, 100-, and 120-day permit category, but they can choose what goes in each category and a city can add additional permit timelines beyond those three.

address how consolidated review time periods may be different than permits submitted individually, and

Another option.

provide for how projects of a certain size or type may be differentiated, including by differentiating between residential and nonresidential permits.

Again, more options to add or differentiate permit types and timelines. Important note: Legally, the word “including” means “including but not limited to” – it’s expansive, not restrictive. So, a city is not restricted to only differentiating by residential and nonresidential.

The second most popular question is can a city go beyond the 170 days? Yes. Here’s the language:

Unless otherwise provided for the consolidated review of more than one permit, the time period for a final decision shall be the longest of the permit time periods identified in (d) of this subsection or as amended by a local government.

This is express authority for a city to choose a timeline longer than 170 days. However, a city would lose the appeal safe harbor protection provided in (k) for the city’s adopted ordinance modifying the timeline. Provision (k) is additional language supporting the express authority of a city to modify the timelines. If a city couldn’t modify the timelines or go beyond 170 days, provision (k) wouldn’t be needed: “unless the resolution or ordinance modifies the time periods provided in (d) of this subsection by providing for a review period of more than 170 days for any project permit.”

(f) If a local government does not adopt an ordinance or resolution modifying the provisions in (d) of this subsection, the time periods in (d) of this subsection apply.

This is express authority to modify the timelines in (d) if a city chooses to do so. If a city was only able to modify the types but not the timelines, this provision would just be restating that the time periods above are required – which is superfluous language. Statutes are never read to include superfluous language. Each provision must provide new meaning.

As always, this is not legal advice, and cities should consult with their legal counsel. We do hope it helps parse the language and reduce the anxiety of the decisions cities need to make as January 1 approaches.