[WSBARP] Payment of Exorbitant Developer Fees

[scott at scottgthomaslaw.com]

Depends on additional facts.  All governments in WA charge a plan check fee
in addition to a permit fee.  The permit fee covers the cost of
administering the permit and doing inspections; the plan check fee covers
the costs of reviewing the permit application.  Look at the ordinance by
which the city adopted its building code to see what, if any, restrictions
are placed on the fees and charges.  You may also need to pull up a copy of
the building code to understand it all.  And an observation: hard for me to
imagine a superior court judge concluding that a consulting engineer did the
wrong thing, unless you have an expert witness telling the judge that.  As
to the cost of the engineer, laws governing the selection of an
architect/engineer/surveyor by the government requires the government to
select the best qualified to do the work, not the cheapest.  So yes, fees
tend to be higher than average.  And, when an engineer is engaged to review
water, storm, wastewater, and structural, $8k doesn't sound like a lot,
especially on a challenging parcel.

The lawsuit you are thinking of is probably the one from a number of years
ago in which a developer paid for a permit under protest, and then sued
arguing that the permit fee was being used to subsidize the government and
was excessive to the needs of running the building department.  These kinds
of arguments can work if the government set up the building department to be
solely funded from permit fees.  But most governments have moved away from
that model, because typically the building department has to be subsidized
by other revenues.  Thus, there is no unconstitutional tax.

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Paul Neumiller
Sent: Wednesday, December 9, 2020 1:46 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Payment of Exorbitant Developer Fees

Any thoughts or this a typically hopeless cause to be filed under "you can't
fight City Hall"?


-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Paul Neumiller
Sent: Monday, December 7, 2020 4:05 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Payment of Exorbitant Developer Fees

Listmates:  Client Developer queries the appropriateness of (what appears to
be) excessively high fees.  Developer seeks permission from City to build
house.  City does not have an engineer on staff to review the plans but
rather contracts out this work.  There are multiple issues between
Developer's representative and the City's contract engineer.  After multiple
meetings, the problem is determined to be with the contract engineer (though
I doubt he admits this).  But to no avail, the City passes on an exorbitant
fee to the Developer for the time/costs of the City's contract engineer (in
excess of $8K).  This amount is in addition to the standard building permit
fees.  City refuses to issue the building permit until it is "reimbursed"
for its engineer contractor.  I don't know if this is an issue but it
appears the contract engineer charges a rate above the prevailing market
rate, probably because the City doesn't care about the rate because the City
just passes the cost onto the unsuspecting public/developer.  Is this
typical?  How does Developer fight this, if possible?

I vaguely remember a strategy where Developer pays the bill, gets the
building permit, and then sues for reimbursement at a later time (though I
don't know on what grounds.)  Thanks ahead of time for your input. Any
guidance would be appreciated.  --Paul Neumiller