Title 92 – Land Use and Environment
Chapter 92.05 – Purpose and Goals
| Protection of environmental values must be as strong or stronger than today. |
| Getting a permit must be simpler and faster for applicants, big and small. |
| The total cost for counties and cities must be no greater than it is today. |
| The opportunity for meaningful public participation in all stages of the planning and permitting process must be retained or enhanced. |
Purpose of Consolidated Land Use Code
Environmental Protection
Growth Management
Shoreline Management
Local Discretion
Chapter 92.10 – Definitions
Chapter 92.15 – State and Local Responsibilities
Overall Purpose
Share decision making and rule development over matters of greater than local concern between local governments and the state government Allow for regional variation Coordinate state agency policies and rules
Intergovernmental Coordinating Council
Purpose
| Maintain vision of consolidated land use code |
| Share responsibility for development of state policy between state and local governments and tribes |
Membership
| State agencies |
| Local governments |
| Tribes |
Responsibilities
| Establish and oversee state policy for consolidated land use code |
| Upon request, review for consistency policy state agency rules implementing consolidated land use code |
| Resolve disputes concerning locally adopted standards |
| Resolve essential public facilities siting issues |
Chapter 92.20 – State Coordination, Planning, and Technical Assistance
Cabinet Coordinating Committee – Purpose
| Coordinate state agency policies and actions relating to orderly growth, development, and redevelopment, |
| Management of state’s resources, management related to natural hazards, location and need for state-owned capital facilities, and mechanisms for cooperation between and among state agencies and among local governments, state agencies, tribes, and federal agencies |
| Resolve interagency issues |
Membership
| Cabinet Agencies: OFM, Ecology, DCTED, Corrections, DSHS, Higher Education Coordinating Board, Health, Puget Sound Action Team |
| Agencies headed by Elected Official: DNR, SPI |
| Agencies headed by Appointed Official: Transportation, WDFW, Parks and Recreation |
Responsibilities
| Establish state agency policies and positions on the intergovernmental coordinating council |
| Establish state agency policies and positions for presentation to local or regional rule development processes |
| Designate state agency representatives to participate in local or regional coordinated development processes |
| Resolve differences between state agencies over matters covered by consolidated land use code |
| Coordinate plans and programs of state departments and agencies |
| Harmonize state planning activities with local planning |
State Planning
Office of Dispute Resolution
Integrate goals and policies to coordinate and direct state agency activities Govern economic development, land use, transportation, health, education, public safety, water resources, and intergovernmental relations Direct state capital budgeting and location decisions Existing transportation planning requirements from RCW 47.20
| Clearinghouse of information on alternative dispute resolution |
| Provide assistance in evaluating disputes for potential mediation or arbitration |
| Maintain list of qualified arbitrators and mediators |
| Provide technical assistance to intergovernmental policy coordinating board, local coordinating boards or processes, state agencies, and local governments to help resolve disputes |
Chapter 92.25 – County and City Planning
Local or regional policy and rule development – Purpose
| Allow local or regional process to establish rules tailored to address local or regional circumstances and that are consistent with overall state-wide policy |
| Share regulatory responsibility between state agencies and local governments |
How established
| Voluntarily established by local governments: |
| Agreement to expand authority of existing entity, such as an RTPO or an organization established under CWPP |
| Agreement to create a new entity to address a specific issue |
Structure and Membership
| Any county in area covered must agree to participate |
| 60 percent of cities representing 75 percent of incorporated population in the covered area must agree to participate |
| May include part or all of one or more counties. Area must be reasonably related to issue – e.g., watershed, transportation area, area impacted by or benefiting from an essential public facility |
| Tribes with reservation or usual and accustomed hunting or fishing rights in area covered invited to participate |
| Cabinet Coordinating Committee invited to appoint state agency representatives |
Potential Topics for Rule Development and Project Review
| Resource Issues |
| Critical areas ordinances |
| Shoreline master program standards |
| Stormwater standards |
| Flood management program requirements |
| Urban growth area requirements |
| TMDL establishment |
| Coordinated water supply system planning requirements |
| Septic system standards |
| Regional and state transportation standards |
| Project Issues |
| Regional or state transportation projects |
| Hazardous waste site cleanups |
Decision making
| Consensus – each participating county, each participating tribe, 60 percent of cities representing 75 percent of incorporated population must concur, and state agency must concur |
| Public participation – decision making process shall include opportunity for public review and comment on proposals prior to agreement. Before final agreement is reached, participants shall allow a final comment period and include as part of record a summary of written comments received and response to those comments (similar to requirements of APA) |
| Agreement is effective upon approval of legislative authority of each local government participant, cabinet coordinating committee, and appropriate tribal authority of each tribal participant. Local government legislative authority shall approve by ordinance or resolution after an opportunity for public hearing. Agreement must be accepted in its entirety |
Effect of agreement
| An agreement of all participants, once approved, has effect of rules adopted under APA |
County and city planning enabling statute
| Combine RCW 36.70, 35A.63, and 35.63 |
Land Use Planning
| Planning for non-GMA jurisdictions (RCW 36.70) |
| Planning for Growth Management Act jurisdictions (RCW 36.70A) |
| Planning under the Shoreline Management Act (RCW 90.58) |
Chapter 92.30 – Environmental Review
SEPA
| Modify environmental review process |
Revise SEPA process to replace threshold determination with another mechanism to evaluate environmental impacts Application with revised checklist identifying probable impacts submitted to lead agency Preliminary environmental assessment listing probable impacts and identifying applicable existing documents, regulations, and processes issued at same time as notice of application. Accept public comment Issue environmental assessment identifying what does not need further study under SEPA and what does Environmental report prepared on issues needing further study under SEPA. No draft and final report, although lead agency may seek comment on projects with unique circumstances. Decision on the merits and imposition of conditions and mitigation under SEPA. Application may be denied if adverse impacts cannot be mitigated. Applicant may appeal environmental assessment when issued. If there is an appeal, other parties must intervene or cross-appeal at that time on issues concerning environmental assessment. Otherwise, appeals consolidated with decision on the merits. Applicant may appeal determination that environmental report is not adequate.
| Expand guidance on non-project EIS |
Chapter 92.35 – Project Review
Consolidated Project Review (RCW 36.70B)
| Local government hearing procedures |
| Hydraulics Project Approval |
| Shoreline Substantial Development Permit |
State Permitting
| State Permit Assistance Center (extended) |
| Integrated permit process pilot program |
Chapter 92.40 – Essential Public Facilities
Essential public facilities types
| State-wide essential public facilities |
| State owned and operated prisons and detention facilities, colleges and universities, and hospitals |
| Hazardous waste disposal facilities licensed by Ecology |
| Energy facilities currently licensed by EFSEC |
| Local or regional essential public facilities |
| State and regional transportation facilities included in state transportation plan |
| State owned or licensed inpatient facilities, including substance abuse facilities, mental health facilities, and group homes |
| Local government detention facilities |
| Solid waste disposal facilities |
Intergovernmental Coordinating Council Role
| Approve siting of state-wide essential public facilities |
| Resolve disputes over siting of other essential public facilities when siting process fails |
State-wide Facility Process
| Application filed with intergovernmental coordinating council |
| Following council established process for reviewing application, decision is made |
Local or Regional Facility Process
| Application filed with local government with jurisdiction |
| Local government processes application under its procedures, including applicable procedures relating to the siting of essential public facilities. Local government procedures must: |
| Be consistent with DCTED adopted procedural criteria, |
| Establish timelines for making decision, and |
| Include requirements for coordinating decisions of different local agencies with jurisdiction |
| Applicant, neighboring local government, or permitting local government may request intergovernmental coordinating council to establish an a facility siting committee if local process "fails" |
| Local or regional facility siting committee established by council |
| Representatives from each local government in which facility is located or which would be directly impacted by operation of the facility |
| Applicant |
| Others invited by the siting committee |
| Facility siting committee negotiates a resolution of issues with assistance from office of dispute resolution. Process may include mediation and other alternative dispute resolution assistance |
| If agreement is reached, agreement placed before local legislative body of each local government in which the facility is located. Local legislative body may only accept or reject the agreement. It may not modify the agreement. If approved, the agreement is binding on the local government |
| If local committee is unable to reach agreement, issue is placed before the intergovernmental coordinating council for resolution. Each party shall present its proposal to the council. The council shall select the proposal it determines is most consistent with state policy |
Impact Compensation
| State-wide, local, and regional facilities may include a process for determining appropriate impact compensation |
| Impact compensation may include: |
| Allocation of discretionary federal funds to the impacted community |
| Allocation of an existing revenue source to the impacted community for a specified period of time, e.g. state share of sales tax on construction on the project to the impacted community |
| Compensation budget included as part of the project to cover impacts in addition to direct impacts covered by SEPA mitigation and impact fees. Parallel to 1% for the arts |
Chapter 92.45 – Appeals
Two Options
| Land Use and Environment Hearings Board |
| Land Use Appeals Court |
Option 1 – Land Use and Environment Hearings Board
| Jurisdiction – Legislative Matters |
| Growth Management Act – all GMA appeals |
| Shoreline Management Act – SMA plans |
| No constitutional issues |
| Jurisdiction – Permit Decisions |
| Substantial development permits on shorelines of statewide significance, and all shoreline permits in jurisdictions that do not adopt minimum procedural standards. |
| If substantial development permit appeal, other land use permit decisions consolidated with the substantial development permit appeal. |
| Composition |
| 6 - 9 members |
| 5 full time members appointed by Governor, with geographic diversity, expertise in land use, environmental, and shorelines. |
| 4 part-time members appointed by Governor from nominations from county and city associations, business community, and environmental community – 1 from each. |
| Panels of 5 members – geographic diversity and at least two part-time members on each. May provide for panels of 3, with one part-time member for classes of cases determined by rule of the board. |
| Administrative support provided by the Environmental Hearings Office |
| Procedure |
| Hearings on the record before the local government for legislative decisions, and if the local government has implemented minimum procedural standards, for permit decisions. DCTED develops model ordinance incorporating minimum procedural standards. |
| De novo hearings on permit decisions if the local government has not adopted minimum procedural standards |
| Subsequent appeals to Court of Appeals, bypassing superior court. |
Option 2 – Land Use Appeals Court
| Jurisdiction – Legislative Matters |
| Growth Management Act – all GMA appeals |
| Shoreline Management Act – SMA plans |
| Constitutional issues |
| Jurisdiction – Permit Decisions |
| All substantial development permits on shorelines of statewide significance, and all shoreline permits in jurisdictions that do not adopt minimum procedural standards. If substantial development permit appeal, other land use permit decisions consolidated with the substantial development permit appeal. |
| Composition |
| Option 1: Fourth Division of the Court of Appeals; Six members, two elected from each of the existing three divisions; Two panels of three judges, one from each of the three divisions. |
| Option 2: Six additional court of appeals judges, two in each division. Land Use Panel formed using one judge from each division. Judges assigned to panel on a rotating, annual, or permanent basis, or as otherwise determined by the court. |
| Procedure |
| Hearings on the record before the local government for legislative decisions, and if the local government has implemented minimum procedural standards, for permit decisions. DCTED develops model ordinance incorporating minimum procedural standards. |
| If fact finding necessary, remand to local superior court for hearings |
| De novo hearings on permit decisions if the local government has not adopted minimum procedural standards |
| Subsequent review to Supreme Court on a Petition for Discretionary Review. |
Land Use Petition Act
| Continues to apply to all land use appeals not appealable to either the Land Use and Environment Hearings Board or the Court of Appeals |
Chapter 92.50 – Enforcement
Civil Penalties
| Standardized civil penalties for failure to comply with permit conditions, e.g. penalty of from $25 to $ 1,000 per violation per day. Willful violations carry a higher penalty. See, e.g. 90.48.220. |
| Assessment for damage to the environment caused by violation. See, e.g., RCW 90.48.142. |
| Fines, penalties, and damage assessments placed in environmental restoration fund, not into general fund. See, e.g., coastal protection fund (RCW 90.48.390). |
Innovative techniques
| Permit fee dedicated to enforcement/monitoring fund. |
| Performance bonds explicitly authorized |
| Liquidated damages |
| Monitoring funds placed in trust account |
| Expansion of public nuisance actions |
| Other "innovative" mechanisms to assure compliance |
Local Government Enforcement
| Minimum standards for local enforcement programs |
| Minimum staffing requirements |
| Monitoring requirements |
| Reporting requirements |
| Dedicated funding |
| State matching grants for local governments that meet minimum standards. Grants provided from state environmental restoration fund |
Third Party Enforcement
| Optional, if local government has adopted minimum standards for local enforcement |
| Must first petition local government to enforce |
| Standing same as under LUPA |
| Prevailing party attorney’s fees may be awarded |
Chapter 92.55 – Funding
| Regional tax-base sharing |
| Percentage of growth of commercial-industrial property tax base and sales tax |
| Excess residential property tax (amount of tax on value in excess of average single family home value in area covered) |
| Interlocal revenue sharing agreements |
| Joint economic development districts |
| Infrastructure Finance |
| Planning and Environmental Review Fund |
| Impact Fees |
Chapter 92.60 – Miscellaneous
10/13/98