Section 40.520.010

40.520.010 Legal Lot Determination

A. Purpose and Summary.

1. The purpose of this section is to provide a process and criteria for determining whether parcels are lots of record consistent with applicable state and local law, and to include a listing of potential remedial measures available to owners of property which do not meet the criteria.

2. In summary, parcels are lots of record if they were in compliance with applicable laws regarding zoning and platting at the time of their creation. Zoning laws pertain primarily to the minimum lot size and dimensions of the property. Platting laws pertain primarily to the review process used in the creation of the lots. Specific provisions are listed herein.

(Amended: Ord. 2019-11-15)

B. Applicability.

The standards of this section apply to all requests for lot determinations, or for building permit, placement permit, site plan review, short plat, subdivision, conditional use permit, rezone, or comprehensive plan change application.

(Amended: Ord. 2019-11-15)

C. Determination Process.

Lot of record status may be formally determined through the following ways:

1. Lot Determinations as Part of a Building Permit or Other Development Request. Building or other development applications for new principal structures on parcels which are not part of a platted land division shall be reviewed by the county for compliance with the criteria standards of this section, according to the timelines and procedures of the building permit or other applicable review involved. Lot determination fees pursuant to Title 6 shall be assessed, unless the parcel was recognized through a previous lot determination or other review in which such recognition was made. Lot determination fees will be assessed for placement or replacement of primary structures. A separate written approval will not be issued unless requested by the applicant. Request for determinations based on the innocent purchaser or public interest exception criteria of this chapter shall require separate submittal under Section 40.520.010(C)(2).

2. Lot Determinations Requests Submitted Without Other Development Review. Requests for determinations of lot of record status not involving any other county development reviews, or any requests for innocent purchaser or mandatory public interest exceptions shall submit an application for lot determination, with fees assessed pursuant to Title 6 of this code. A Type I process per Section 40.510.010 shall be used, unless the request is based on the public interest exception discretionary criteria of Section 40.520.010(F)(3), in which case Type II reviews as per Section 40.510.020 will be used. The county will issue a letter of determination in response to all such requests.

(Amended: Ord. 2008-06-02; Ord. 2019-11-15)

D. Application and Submittal Requirements.

1. The following shall be submitted with all applications for lot determination, or applications for other development review in which a lot determination is involved. Applicants are encouraged to submit material as necessary to demonstrate compliance with this section.

a. Prior county short plat, subdivision, lot determination or other written approvals, if any, in which the parcel was formally created or determined to be a lot of record;

b. Sales or transfer deed history dating back to 1969;

c. Prior segregation request, if any;

d. Prior recorded survey, if any;

e. At the discretion of the applicant, any other information demonstrating compliance with criteria of this section.

2. Requests for the innocent purchaser exception shall also include a written explanation of the circumstances surrounding the purchase of the property which demonstrates compliance with innocent purchaser criteria of Section 40.520.010(F)(1). Additional documentation such as earnest money agreements, written affidavits, previous tax statements or property advertisements may be included at the discretion of the applicant.

3. Requests for the public interest exception shall also include a written explanation which demonstrates compliance with applicable public interest exception criteria of this chapter.

(Amended: Ord. 2019-11-15)

E. Approval Criteria.

1. Basic Criteria. Parcels which meet both of the following basic criteria are lots of record:

a. Zoning. The parcel meets minimum zoning requirements, including lot size, dimensions and frontage width, in effect currently or at the time the parcel was created; and

b. Platting.

(1) The parcel was created through a subdivision or short plat recorded with Clark County; or

(2) The parcel is five (5) acres or more in size and was created through any of the following:

(a) An exempt division which occurred prior to April 19, 1993,

(b) A tax segregation requested prior to April 19, 1993,

(3) The parcel was created through a division or segregation of four (4) or fewer lots requested prior to July 1, 1976; or

(4) The parcel was created through division or segregation and was in existence prior to August 21, 1969; or

(5) The parcel was created by a process listed as exempt from platting requirements by RCW 58.17.035, 58.17.040, or Section 40.540.010(A), or through an exemption from platting regulations provided by law at the time of creation of the parcel; or

(6) The parcel was segregated at any time and is twenty (20) acres or more in size.

2. Prior Determination. Parcels which have been recognized through a previous lot determination review, or other county planning approval in which lot recognition is made, are lots of record. Such parcels shall remain lots of record until changed by action of the owner.

3. Dormant territorial plats lots created through land divisions which were recorded prior to 1937, and not subsequently developed or improved shall not be considered legal lots of record under the basic criteria of Section 40.520.010(E)(1)(b), although they may be recognized if they meet other approval criteria of this chapter.

4. Parcels created as a result of government condemnation for road construction under Section 40.540.020(B)(4)(c) do not qualify as legal lots in the Columbia River Gorge National Scenic Area District, as specified under the definition of “parcel” in Section 40.240.040.

(Amended: Ord. 2004-06-11; Ord. 2005-04-12; Ord. 2007-06-05; Ord. 2019-11-15)

F. Exceptions.

1. Innocent Purchaser Exception. The responsible official shall determine that parcels which meet both of the following exception criteria are lots of record:

a. Zoning. The parcel meets minimum zoning dimensional requirements, including lot size, dimensions and frontage width, which are currently in effect or in effect at the time the parcel was created; and

b. Platting. The current property owner purchased the property for value and in good faith, and did not have knowledge of the fact that the property acquired was divided from a larger parcel after August 21, 1969, in the case of subdivisions, or after July 1, 1976, in the case of short plats, or after April 19, 1993, in the case of any segregation resulting in parcels of five (5) acres or larger.

2. Public Interest Exception, Mandatory. The responsible official shall determine that parcels which meet the following criteria are lots of record:

a. Date of Creation. The lot was created before January 1, 1995;

b. Zoning. The parcel meets minimum zoning dimensional requirements currently in effect, including lot size, dimensions and frontage width; and

c. Platting.

(1) The responsible official determines that improvements or conditions of approval which would have been imposed if the parcel had been established through platting are already present and completed; or

(2) The property owner completes conditions of approval such as, but not limited to, road, sidewalk, and stormwater improvements which the responsible official determines would otherwise be imposed if the parcel had been established through platting under current standards. Preliminary and final submittal plans and fees shall be required where applicable. Such plans may include final engineering plans and a final land division plan in lieu of a final plat.

3. Public Interest Exception, Discretionary. The responsible official may, but is not obligated to, determine that parcels meeting the following criteria are lots of record:

a. Zoning. The parcel lacks sufficient area or dimension to meet current zoning requirements but meets minimum zoning dimensional requirements, including lot size, dimensions and frontage width, in effect at the time the parcel was created; and

b. Platting.

(1) The responsible official determines that conditions of approval which would have been imposed if the parcel been established through platting under current standards are already present on the land; or

c. The responsible official shall apply the following factors in making a lot of record determination under the discretionary public interest exception:

(1) The parcel size is generally consistent with surrounding lots of record within one thousand (1,000) feet;

(2) Recognition of the parcel does not adversely impact public health or safety;

(3) Recognition of the parcel does not adversely affect or interfere with the implementation of the comprehensive plan; and

(4) The parcel purchase value and subsequent tax assessments are consistent with a buildable lot of record.

4. Recognition of lot of record status based on the public interest exception shall be valid for five (5) years from the date of lot determination or review in which the determination was made. If a building or other development permit is not sought within that time, the determination will expire. Applications for development or lot recognition submitted after five (5) years shall require compliance with applicable standards at that time.

(Amended: Ord. 2009-03-02)

G. De Minimis Lot Size Standard.

For the purposes of reviewing the status of pre-existing lots for compliance with platting and zoning standards, parcels within one percent (1%) of minimum lot size requirements shall be considered in compliance with those standards. Parcels within ten percent (10%) of lot size standards shall be similarly considered in compliance unless the responsible official determines that public health or safety impacts are present.

H. Potential Remedial Measures.

Transfer or sale of properties created in violation of land division regulations is a gross misdemeanor pursuant to RCW 58.17.300. Buyers of property not in compliance with lot of record criteria, including exceptions, listed in this section may consider pursuing one (1) or more of the following, listed in no particular order:

1. Purchase of additional land from surrounding properties if necessary to reach compliance with zoning standards, and subsequent boundary line adjustment which does not result in any other parcels becoming inconsistent with minimum zoning standards.

2. Private action to seek damages, including the cost of investigation and suit from the selling party if the property was transferred in violation of applicable zoning and platting regulations, as authorized by RCW 58.17.210.

3. Private action to rescind the sale or transfer, and recover cost of investigation and suit from the selling party if the property was transferred in violation of applicable zoning and platting regulations, as authorized by RCW 58.17.210.

4. Application for a variance if necessary to reach compliance with zoning standards. Such applications will be reviewed solely under variance criteria of Section 40.550.020, and shall not be granted on the basis of illegal lot status.

5. Application for zoning changes under Section 40.560.020 and/or comprehensive plan changes under Section 40.560.010 if an alternative designation can bring the parcel into lot of record status. Such plan and zone change requests shall be reviewed solely according to their compliance with respective criteria of Section 40.560.020 and/or Section 40.560.010, and shall not be granted on the basis of illegal lot status.