To whom should GMA apply; and
	Should the same requirements apply to all jurisdictions planning under its framework.

A related third issue, which will be discussed in Issue Paper #1, is that of the appropriate balance between state directive and local choices.

2. BACKGROUND

A. Legislative History.

When GMA was enacted in 1990, it required fast-growing counties, and the cities within them, to plan and regulate land use under a specific legislative framework.1 Counties whose growth rate does not fall within the statutory formula also may choose to plan under the GMA. Within this framework, planning and its implementation is locally driven. Plans and development regulations must be submitted to state agencies for review and comment, but not for approval or disapproval. In 1991, after the rejection of Initiative 547, the GMA was amended to add a process for review and enforcement of the GMA provisions by the Growth Management Hearings Boards. Washington's approach with respect to the adoption and enforcement of GMA's provisions is substantially different from the approach taken in Oregon -- where local plans are subject to review and approval by the state -- and the provisions of the failed Initiative 547. This approach is also different from that used in the Shoreline Management Act, where the Department of Ecology approves Shoreline Master Programs adopted by local governments.

GMA has two levels of application. Certain counties, based on a formula combining population and population growth, and the cities in those counties must adopt a comprehensive plan and development regulations to implement that plan. Currently, 29 counties are planning under these provisions, either because they are required to or because they have chosen to. Although there is some disagreement on the point, there is general agreement that once a county has voluntarily chosen to plan under the act, that decision is irrevocable and may not be rescinded.

In addition to the requirement that some counties adopt comprehensive plans and development regulations, the GMA requires all counties and cities to designate critical areas or and land which is valuable for commercial agricultural, forest or mineral use. Zoning in those areas must conform to the comprehensive plan, if a plan exists. In 1991 the Legislature required critical areas not only to be designated, but also protected. Each county must designate an urban growth area or areas which must include every city within the county. Each city within a GMA county and the county must develop a comprehensive plan including elements regarding land use, transportation, housing, utilities, capital facilities. County plans must also include a rural element and identify open space corridors.

Although the GMA provides a window of opportunity for counties under 50,000 with a 17 % growth rate to opt out of GMA,2 it does impose certain requirements on all counties and cities. The House of Representatives approved legislation in both 1995 and 1996 that would have allowed counties under 75,000 population to opt-out of the GMA. The bills were not considered by the full Senate. Appendix A lists the counties and whether they have been mandated to plan under GMA, opted to plan, or all not planning under all of GMA's provisions.

B. Board Decisions.

At least three areas of decision by the GMA Boards bear upon the issue of whether GMA should apply equally to all counties and cities.

(1) Is Board jurisdiction limited to counties and cities planning under the GMA?

It is unclear from the language in RCW 36.70A.2503 whether the Boards have jurisdiction over GMA-related plans and regulations in all counties or only over those that are "required to choose to plan." The Eastern Washington Board, in Moore v. Whitman County (1995), assumed jurisdiction of a critical areas challenge although Whitman County is not engaged in Full GMA Planning.

(2) Are GMA requirements enforced equally on each jurisdiction regardless of size, population, and other factors?

As Appendix A indicates, there is great diversity in population (also in land area and growth rates) in counties and cities planning under GMA. Since the Boards review and find compliance only for those plans that are challenged, GMA requirements tend to be enforced only on those jurisdictions whose action (or inaction) is challenged. The Legislature created three boards so that the geographic diversity of the state could be reflected. Although the statute does not direct the Boards to consider the differences in jurisdictions, those differences have been noted in several decisions. For example, in an overview section to its decision in Woodmansee v. Ferry County (1995), the Eastern Washington Board emphasized that it

will view the issues in the context of Ferry County. We recognize that Ferry County has a limited tax base, and consequently limited resources, to address growth related issues.

In the body of its opinion, the Board later acknowledged "the nearly impossible task faced by Ferry

County in complying with RCW 36.70A.070(6)(c), the finance plan for the transportation element.

(3) How much flexibility inheres in the directives to designate and protect critical areas or to designate and conserve resource lands?

Although the GMA does not direct the Boards to consider the differences in jurisdictions and geography across the state, those differences have been noted in several decisions. The Central Puget Sound Board addresses this in Pilchuck Audubon Society v. Snohomish County (1995), holding that all lands that meet the definition of critical areas are to be designated and

all lands that are designated critical areas ... must be protected by critical area development regulations adopted pursuant to RCW 36.70A.060, and such lands may not be exempted or excluded from protection.

The Eastern Washington Board has interpreted the resource land designation requirement to be equally strong. See English v. Columbia County (1993)(agricultural lands) and Ridge v. Kittitas County (1994)(forest lands). The Western Board interprets the critical area requirements more flexibly. See, e.g., Clark County Natural Resources Council v. Clark County (1992).

3. ISSUE DISCUSSION

Although it is generally acknowledged that the 1990 Legislature intended GMA to be a flexible, bottom-up framework to manage growth across the state, there is not agreement as to whether GMA in fact provides counties and cities adequate flexibility to meet the different needs and challenges that some areas of the state face to meet the expected population growth. The GMA does contain language which suggests that counties and cities have choices among a variety of options.4

Because of its emphasis on concentrating future growth into urban growth areas consisting of existing cities and the surrounding area, and the requirement that each GMA county or city adopt comprehensive plans and development regulations addressing six elements, some local government officials believe that GMA mandates that future development occur in concentric circles around existing cities. They argue that that planning approach does not recognize how and why growth occurs in some communities in the state.

This inflexibility, whether real or only perceived, has led to a variety of proposals to give greater discretion to local governments. A number of these proposals have focused on the different planning requirements of the GMA, including: the rural element; the duty to designate agricultural lands; and the need to prevent urban sprawl. Another avenue has been to suggest ways in which some or all of the planning requirements might either be eased or eliminated for some jurisdictions.

Absent a mandate or choice to plan under GMA, comprehensive planning is not required by state law. Planning under the Planning Enabling Act (Chapter 36.70 RCW), if undertaken by a county or a city, requires only a land use element and a circulation element. The Planning Enabling Act is largely procedural.

Since the initial legislative debate over HB 2929, there has been discussion in nearly every legislative session over the primary questions posed in this issue paper: to whom should GMA apply, whether the same requirements should apply to all jurisdictions planning under its framework, and whether it contains the appropriate balance of local and state decision making. In the 1990 and 1991 sessions, the question of who should plan under GMA centered on whether Spokane County -- Eastern Washington's largest local government -- should be mandated to plan. Amendments sought during the next several sessions focused on specific planning requirements highlighted by both local and GMA Board decisions: wetlands delineation and protection, forest land designation, industrial growth outside the urban growth area. Then, beginning in 1994, many legislators seriously considered changing the formula, and allowing counties to opt out of GMA planning. A 1995 amendment changed the growth percentage rate required in counties over 50,000 to seventeen percent.

To whom should GMA apply?

Currently 29 of the state's counties and the cities within those counties plan under GMA. Some argue that the Act is written with Central Puget Sound jurisdictions in mind and is not flexible enough to meet the diverse needs around the state. That argument is based largely on the Act's emphasis on concentrating future growth into urban growth areas consisting of existing cities and their surrounding area. Some of the areas experiencing the highest growth rates, however, are growing at that rate precisely because those emigrants do not want to live in an urban area. For instance, it has been noted that people don't move to Island and San Juan Counties and other saltwater locations to live in cities. Rather, it is the desirability of the shoreline area for home sites that attracts many newcomers, resulting in density spread along the shoreline which fits neither the rural or urban areas defined by the Act. As another example, while there may be little disagreement over the desirability of open space corridors to prevent one city from blending into another in some of the central Puget Sound area, the need for that GMA requirement is hard to justify in Walla Walla County where vast stretches of farmland separate the handful of urban areas. On the other hand, there is little disagreement that each and every county and city planning under GMA should have a land use plan and transportation plan that are consistent and that can be implemented.

City officials have generally been more content with GMA planning, its implementation, and its oversight by Growth Boards, than counties have been. In part, this is probably due to a greater expectation and acceptance of land use regulation by residents of cities. In part, it is probably due to a lesser degree of physical diversity among cities than among counties, resulting in easier application of the Act's requirements.

The primary impetus to opt-out, for those counties that have expressed that desire, comes from disagreement with both specific requirements of the Act and the state role in interpreting or enforcing those requirements. The call for more flexibility, on the other hand, comes from cities as well as counties that feel the Act and how it is interpreted leave inadequate room for their local needs. Cities generally oppose authorizing opt-out. In considering whether to allow counties to opt-out of any or all planning requirements, it is important to realize that a fundamental premise of the Act -- concentration of future population within urban growth areas -- cannot work without participation by both a county and its cities. The Association of Washington Cities has suggested that a county's ability to opt out should be conditioned on the agreement by most cities within that county.

Should the same requirements should apply to all jurisdictions planning under the GMA framework?

The Act requires that land use be classified as urban, rural, or resource lands and requires that the entirety of a city be designated as an urban growth area. The Act also prohibits cities from classifying land as forest or agricultural resource lands without acquiring the development rights to that land. These requirements have frustrated jurisdictions such as Bainbridge Island (a city that wants to remain rural), Redmond (a city that wants to retain existing agricultural districts) and many citizens of Kitsap County where a suburban lifestyle predominates which the terms of the Act and interpretation by the Boards appears to preclude. The Act also has been interpreted to disallow growth of an existing industrial area outside a city even though the uses there may not be wanted by city residents.

There are models of planning other than GMA that could be used to meet GMA goals without relying on compact, dense urban areas as the primary means of meeting those goals. And, while it is important to have good transportation planning between areas where people reside and where they work, it is not necessary that the two locations be immediately adjacent.

Does GMA contain the appropriate balance of local and state decision making?

Although the Act sets forth thirteen goals in addition to numerous requirements, the state interest is often unclear, as is the relationship between GMA and other state statutes. Efforts to clarify the relationship between the GMA and the Shorelines Management Act through 1995 amendments have resulted in a fractured rule making process. Most counties feel that appeals of their planning choices to GMA Boards have substituted bottom-up planning for state planning exercised through the Boards.

4. OPTIONS

Option 1: No action.

Pro:

Maintains the basic framework of the GMA and therefore promotes predictability.

Con:

Ignores the financial inability and philosophical disagreement of smaller and more rural jurisdictions to me et GMA requirements.

Option 2: Authorize jurisdictions to opt-out of GMA.

Would this be with or without agreement of the cities in the county? Should this option be open to any jurisdiction or only those under a certain size or growth rate? Should this option allow apply only to jurisdictions planning under the GMA, or to jurisdictions only subject to other GMA provisions concerning critical areas and resources lands? Should the state money distributed for GMA planning be returned in whole or part?

Pro:

	Allows local elected officials to decide when growth in their counties has reached such a point that they need planning.
	Allows time to develop a constituency for planning in areas where comprehensive planning is a new idea.

Con:

	Detracts from predictability under GMA.
	Frustrates cities within an opt-out county when they are ready to plan.
	Could have unintended effect of channeling growth to areas least prepared for it.
	Withdrawal from "Basic GMA" may leave a vacuum in the protection of some "critical areas."
	Jurisdictions that have completed tasks might be unwilling to let others opt-out of GMA without returning state funds

Option 3: GMA-Lite. A form of partial "opt-out," this would allow individual counties and cities to excuse themselves from specific GMA requirements. Again, the same questions posed in Option 2 arise. In addition, it must be determined whether state approval would be required or not. If so, should that approval come from DCTED or from the GMA Boards? Using what criteria? Should staff and financial ability and assistance be a consideration?

One suggestion is to allow a jurisdiction to opt-out of a requirement unless there exists a specifically articulated state interest to be addressed, with a model ordinance available to implement. It has also been suggested that opt-in jurisdictions be allowed to opt-out of requirements or process added to the Act (including Board review) after their initial decision to plan under GMA.

Pro:

	Allows local elected officials to tailor GMA to meet specific local growth problems.
	Reduces financial strain on local government of producing plan elements that ultimately will have little impact on growth in a county.
	Allows greater flexibility to smaller jurisdictions.

Con:

	Could result in more appeals to Growth Boards over adequacy of plans, thus reducing predictability.
	A patchwork of different GMA requirements depending on who opts in and when.

Option 4: GMA-Flex. This option would not excuse a jurisdiction from planning for future population growth, but would authorize it to pursue means not available under the GMA framework to accomplish them. For instance, Island County could develop an alternative GMA strategy recognizing its unique shoreline settlement pattern. It may be that this much flexibility can not be accomplished within the existing goals and requirements. There is probably a need to eliminate some requirements (such as urban growth areas) for GMA-flex so long as the goals of the Act are met. And, there may need to be some elaboration of the goals to be achieved. The legislature has provided flexibility of this sort before by allowing architects to achieve the conservation required by the state energy code either through a "prescriptive path" or through a "design path." As with Options 2 and 3, it is necessary to consider when this option would be available and under what circumstances.

One suggestion that has been made has been to authorize a "GMA-Flex" approach through a joint county-city process like that used in determining county-wide planning policies. Once a county and its cities reach agreement on an alternative approach, there could be no substantive disapproval by a GMA Board or at least a greater level of deference. This suggestion parallels the Superior Court reversal of the Central Puget Sound Board's Bear Creek decision: since the development was agreed to in county-wide planning policies, it is okay to move forward. Another approach could involve legislative direction to the Boards to recognize exceptions to the general framework for such categories as shoreline development or historical development patterns, or to generally direct approval of flexible approaches that wisely manage population growth. Yet another way to meet this objective could apply by limiting compliance to meeting the Act's goals but not the requirements when a UGA does not extend beyond existing city limits.

Pro:

	Recognizes that statewide goals and processes may not work in an area as a practical matter. "One size does not fit all."
	Introduces concept of performance-based activities to the planning arena.
	Could reduce appeals to Growth Boards, if statewide performance standards are stated clearly.

Con:

	Could increase appeals to Growth Boards, if performance standards are not clear.
	Moves away from the statewide framework provided by GMA, introduces a new way of planning late in the process, and thereby reduces predictability.