Land Use Study Commission
1996 Annual Report
2nd Draft
I. Introduction
A. Progress to date
The Growth Management Act was originally passed by the Legislature in 1990. Prior to that, cities and counties could adopt comprehensive plans, but were not required to do so. Zoning decisions made by local governments were not required to be consistent with the plans that were adopted. The Growth Management Act changed this practice for the more populous and faster growing counties and cities in the state.
Over 155 cites and counties have now adopted comprehensive plans under the Growth Management Act. Jurisdictions have seen improved communication among their staff offices, as well as better communication and coordination with their neighboring jurisdictions and their citizens from the GMA planning process. Some cities and counties are starting to see some of the fiscal and quality of life benefits that the Legislature expected from having adopted GMA plans and regulations.
Although the GMA may have been successful in some ways, there are jurisdictions from around the state that have had difficulties developing plans and development regulations that are both acceptable to the community and are determined by the Growth Management Hearings Boards and the courts to comply with the GMA.
One can attribute some of these difficulties to growing pains. The Growth Management Act is still in its formative stages. As counties and cites have begun implementing the GMA, some shortcomings in the GMA have been identified. Many of those involved in the debates over the GMA in the early 1990s recognize that some important decisions were not made as part of the legislation. As a consequence, the statute included language sufficiently ambiguous that each interest group could find sufficient comfort to agree that the overall process should go forward. This has made it difficult for local governments, the public, and the Boards to understand and come to a common understanding of what the GMA means in some of its key concepts. It has also placed the Boards in a difficult position as they attempt to interpret the statute.
Some local elected officials have concluded that the GMA has resulted in the Boards substituting their judgments for those of local elected officials. Some of these local elected officials have also concluded that the GMA should be repealed. After reviewing the issue, the Commission believes that, although there may be some problems with the GMA, it is benefiting the state. The Commission does not support repealing the GMA. The Commission does believe that some amendments to the GMA could help answer some of the questions that have plagued both local governments and the Boards trying to implement and interpret the statute. By fine-tuning and clarifying certain aspects of the GMA, the Commission believes a number of implementation issues can be resolved without undermining the overall objective of the GMA to assure cost-efficient provision of governmental services while protecting the quality of life and the environment that make this a desirable place to live. This will require an ongoing effort to achieve the full potential of integrating and consolidating the state's land use and environmental laws.
B. General Recommendations
1. The Commission has concluded that providing greater certainty in the planning process will reduce the need to rely on the growth management hearings boards for dispute resolution. This will also enable greater deference to decisions made by local authorities that fall within the GMA framework. The Commission believes that the Boards are a necessary element in the land use process for the present. The Commission is recommending additions to the GMA that will provide more guidance on appropriate types of growth for rural areas and clarify the relationship between urban growth areas and urban governmental services. The Commission recognizes that there is considerable variability in circumstances around the state and that local governments need considerable flexibility to make the best choices for their communities.
2. The GMA should be modified to clarify the range of alternatives available to counties and cities for complying with the goals and requirements of the act without undermining the purposes of the act to encourage coordination among governments, provide for efficient delivery of public services, create certainty about the location and nature of development, and protect the state's environment.
3. There is a need to increase the incentives for building within urban growth areas and reduce the uncertainty about what type of development is appropriate within rural/urban areas. There is also a need to provide benefits and a competitive advantage in accessing scarce state funds to the local governments that have completed their comprehensive plans and development regulations, thereby positioning themselves to move forward towards more efficient and effective management of the population and economic growth coming to Washington.
II. Land Use Study Commission
A. Statutory Charge
The Land Use Study Commission was established by Ch. 347, Laws of 1995 (ESHB 1724). The 14-member Commission was established with the overall mission to "integrat[e] and consolidat[e]" ... the state's land use and environmental laws into a single manageable statute." §801, Ch. 347, L.1995. In addition, the Commission was given a number of additional tasks, including:
| Consider the effectiveness of state and local government efforts to consolidate and integrate the growth management act, the state environmental policy act, the shoreline management act, and other land use, planning, environmental, and permitting laws. |
| Identify the revisions and modifications needed in state land use, planning, and environmental law and practice to adequately plan for growth and achieve economically and environmentally sustainable development, to adequately assess environmental impacts of comprehensive plans, development regulations, and growth, and to reduce the time and cost of obtaining project permits. |
| Monitor instances state-wide of the vesting of project permit applications during the period that an appeal is pending before a growth management hearings board. |
| Monitor local government consolidated permit procedures and the effectiveness of the timelines established by RCW 36.70B.090. |
| Evaluate funding mechanisms that will enable local governments to pay for and recover the costs of conducting integrated planning and environmental analysis. |
| Study, in cooperation with the state board for registration of professional engineers and the state building code council, ways in which state agencies and local governments could authorize professionals with appropriate qualifications to certify a project's compliance with certain state and local land use and environmental requirements. |
The legislation creating the Commission was effective June 1 1995. The Governor announced the appointment of the Commission members on September 28, 1995.
The Legislature has asked the Commission to submit a report to the Governor and the Legislature stating its findings, conclusions and recommendations not later than November 1 of each year. The final report is due by November 1, 1997. The Commission is scheduled to go out of existence on June 30, 1998.
B. Governor's Request for Additional Study
In March, 1996, Governor Lowry requested the Commission to look at two issues in addition to those included in the Commission's statutory charge. In his partial veto of SSB 6637, the Governor requested the Commission to look at the dispute resolution process established in the Growth Management Act and at "how to establish greater certainty in local growth planning and encourage local planning and actions to comply with the requirements and goals of the Growth Management Act."
C. Membership
The Commission is made up of 14 members, eleven of whom are appointed by the Governor. The membership represents a cross-section of those interested in land use issues, including business, agriculture, labor, environmental and neighborhood activists, local and state governments, the tribes, and the general public. Three additional members are the directors of the Departments of Ecology, Transportation, and Community, Trade, and Economic Development (CTED), or their designees. The director of CTED or his designee is the chair of the Commission. Mike Fitzgerald, Director of CTED, has appointed land use attorney T. Ryan Durkan of the Seattle law firm Hillis, Clark, Martin & Peterson, as his designee.
Members of the panel appointed by the governor include: Kitsap County Commissioner Phil Best, of Bremerton; Spokane activist Sheila Collins; Tom Campbell, Assistant Director of Policy & Program for CTED; Keith Dearborn, a partner with the Seattle law firm Bogle & Gates; Kathy Dietrich, a Vancouver architect; Loren Dunn, an environmental attorney with the Seattle law firm of Graham & James/Riddell, Williams; Everett Mayor Ed Hansen; John Herrick, of Bellevue; David Moseley, Ellensburg City Manager; Kimberly Ordon, a policy analyst for the Natural Resources Department of Tulalip Tribes in Marysville; David Roseberry, a wheat farmer and President of the Washington Association of Wheat Growers.
Skip Burch, Dept. of Transportation, and Terry Husseman, Deputy Director of the Dept. of Ecology, were appointed by their respective directors to represent their agencies.
D. Meetings
The Commission holds meetings on the second Tuesday of each month. In addition, the Commission has scheduled a number of special meetings. It held meetings on May 1 and May 2, in Ellensburg and Everett respectively, to hear from members of those communities about their concerns with respect to land use and environmental laws. The Commission also held public meetings on October 22, 24, and 29 to take public comment on its draft report. Those meetings took place in Spokane, Seattle, Mt. Vernon, Wenatchee, and Vancouver.
IV. Process
A. Advisory Committees
The Commission created four committees to assist it in its duties. Three of these committees have produced reports or studies. The fourth, the Statutory Review Advisory Committee, has only been recently established, but will likely be the focus of a considerable amount of effort during the upcoming year.
1. Finance Advisory Committee
The Finance Advisory Committee was established to develop, review, and make recommendations for methods to fund an integrated planning and environmental review process. The Legislature included $3 million for grants in the 1995-97 biennium, but asked the Commission to recommend a permanent funding solution.
The Committee made three recommendations to the full Commission for its consideration:
| The current grant program should be extended for another
two years. The number of grants and the average amount available
for each grants should be increased, for a total grant program
of $9 million for the 1997-99 biennium. The grant program
should be funded by a combination of existing state and
local planning funds, using a portion of the existing
state sales tax on new construction, and the general
fund. The grant program requirements should be modified to
focus on proposals which will incorporate regulatory
reform elements as a component of their objectives. |
| Local governments should be allowed to make use of some
additional funding sources as a way to pay for their
share of the costs of an integrated planning and
environmental review process. The additional options
should include: expanded use of business and parking improvement districts,
LIDs and ULIDs, and tax increment financing. The latter proposal
may require a constitutional amendment. |
| The state needs to take a leadership role in establishing a framework for production, storage and use of existing environmental and planning information. Much information is currently available from both public and private entities, but much of it cannot be easily accessed and shared. A common framework for the data will allow public and private entities to more efficiently provide and retrieve data. |
2. Professional Certification Advisory Committee
The Professional Certification Advisory Committee was established to look at ways in which local governments and state agencies could make use of available professional expertise in the permit review process. The Committee concluded that the best approach to achieve the objective of improving both the timeliness and quality of permit decisions would be through a state program of technical assistance to local governments on when and how to seek professional assistance.
3. Permit Monitoring Workgroup
The Commission established the Permit Monitoring Workgroup to look at the issues involved in the local government permit process. The Commission has been asked by the Legislature to report on the effects of the 120 day permit timeline included as part of ESHB 1724. The report is due in November, 1997. The Permit Monitoring Workgroup is developing baseline information to use to assess the impacts of the legislation.
B. Legislative Sounding Board
The Commission established the Legislative Sounding Board as a means to keep key legislators informed of the Commission's work. Each legislative caucus was invited to appoint two members. The Sounding Board has met twice.
C. Scoping Document and Public Hearings
In February 1996 the Commission developed a list of questions about issues that it believed could be potential topics for review. It invited a number of different individuals, organizations, and agencies to make a presentation to the Commission and comment on those issues which were most important to that individual or interest. The Commission also held two meetings in early May, to hear from a wide range of public interest, neighborhood, business, and agricultural groups. In addition, the Commission has provided a public comment period at each of its meetings.
From the information and comments provided to the Commission during these public meetings, the Commission developed a list of issues that it believed were of most concern to Washington citizens.
V. Achievement of Growth Management Act Goals
A. Summary of GMA Goals
The statute creating the Land Use Study Commission states that, in fulfilling its responsibilities, the Commission shall evaluate the effectiveness of the Growth Management Act and other state land use, planning, environmental, and permitting statutes and achieving their stated goals. This year, the Commission has focused on the Growth Management Act. The Act sets forth 13 planning goals which can be found in RCW 36.70A.020. The goals are intended to guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required to, or choose to, plan under the Act. The goals are not listed in order of priority and are to be used exclusively for the purposes of guiding the development of comprehensive plans and development regulations.
It has been six years since the Growth Management Act was adopted. In many cases, it is still too early to evaluate how effective the Act has been in achieving its stated goals. Nevertheless, the Commission heard many different opinions on whether the Act is achieving the planning goals of the Act. Each goal is set forth below, followed by a discussion of the Act's effectiveness in achieving the goal.
1. Urban Growth. "Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner." Comprehensive plans established under the Act have created urban growth areas within which urban growth is encouraged. On paper, most cities have planned for higher densities; however, there is a concern that these densities may not be achieved as planned. The reasons for this include: lack of money for local governments to accommodate the densities planned; potential community resistance to high density residential development; consumer demand for single family housing units; and uncertainty as to whether there are sufficient buildable lands to accommodate urban densities. Another issue is that some areas have incorporated as cities in order to have more control over land use issues, and in some cases, in order to remain "rural." Examples of recent incorporations include Bainbridge Island, Covington, Maple Valley, and Edgewood. The Growth Management Hearings Board decisions have required, as a general rule, densities of at least four to six dwelling units per acre in urban growth areas.Footnote1 Long-term monitoring will be required in order to assess whether the urban growth goal of the Act has been met. The Commission is recommending a number of changes in the area of urban lands to increase the odds that this goal can be achieved.
2. Reduce Sprawl. "Reduce the inappropriate conversion of undeveloped land into sprawling, low density development." Many local governments have implemented comprehensive plans that "downzone" the rural areas, and allocate population growth to urban areas. These measures should reduce sprawling, low density development. One issue related to this goal is a lack of agreement as to what constitutes sprawl. The Growth Management Hearings Board has adopted a general rule that densities of less than one dwelling unit per five acre in the rural areas would constitute impermissible sprawl. Many rural areas, however, have an existing land supply of preexisting low density lots. In a free market society, it is not possible to dictate that people must live in the urban area. People may choose to live in the rural area for many reasons such as lifestyle, schools, housing cost, traffic, safety and amenities. Unless the urban growth areas are desirable places to live, it will be difficult to achieve the anti-sprawl goals of the Act. As discussed under the urban lands goals, long-term monitoring will be required to determine whether the Act achieves a reduction in sprawl.
3. Transportation. "Encourage efficient multi-model transportation systems that are based on regional priorities and coordinated with County and City Comprehensive Plans." Regional planning has occurred in many areas; for example, in the Central Puget Sound region, coordinated planning has occurred through the Puget Sound Regional Council. Planning however must now be translated into action. Whether efficient transportation systems actually occur may well be dependent upon infrastructure financing, an issue discussed elsewhere in this report. Furthermore, some jurisdictions believe that the ability of county and city comprehensive plans to provide for efficient transportation systems may be hampered by the lack of coordination between local governments and the State on transportation priorities.
4. Housing. "Encourage the availability of affordable housing to all economic segments of the population of this State, promote a variety of residential densities and housing types, and encourage preservation of the existing housing stock." Throughout the Commission's public hearing process, many people were concerned that the Growth Management Act will actually work at cross purposes to the affordable housing goal. There are many reasons that contribute to the cost of housing, including: the cost of land, population growth rates, the health of the economy, interest rates, income and employment.Footnote2 The concern is that, by constraining the available supply of buildable land, housing prices and land prices will rise. Many people already believe that housing in our state is not affordable, and that the Growth Management Act will only exacerbate the trend toward higher housing prices. A recent study concluded that the Seattle/Bellevue/Everett area ranks slightly below the national average for the number of individuals who own homes.Footnote3 On the other hand, Seattle was named by Fortune Magazine as the most livable city in the United States; affordable rental housing in Southeast King County was cited as one of the factors leading to this selection.Footnote4 The monitoring of housing affordability should be a high priority. This report recommends that the following measures be taken: local government monitoring of the buildable land supply, and CTED annual reporting on affordable housing and urban densities.
5. Economic Development. "Encourage economic development throughout the State that is consistent with adopted Comprehensive Plans, promote economic opportunity for all citizens of the State, especially for unemployed and for disadvantaged persons, and encourage growth in areas experiencing insufficient economic growth, all within the capacities of the State's natural resources, public services, and public facilities." The State has had some recent economic development success stories, including the siting of Intel in DuPont, Washington and a semi-conductor facility in Clark County. The presence of appropriately zoned land was an important factor, as was the ability to attract a qualified work force. Still, concerns about economic development remain. One concern is that counties are losing their economic tax base because growth must occur in urban growth areas which are to be governed by cities, as interpreted by the Growth Management Hearings Board. Another concern is that border communities, such as those in Whatcom County, depend on tourist dollars; yet, they do not feel they have the flexibility to provide commercial and industrial areas to accommodate tourist dollars because such growth is not justified by the OFM population projections. Another aspect of this goal is the relationship between our tax structure and land use. For example, if industries receive a tax break, some cities may reassess their land use element to convert industrial zoned land to commercially zoned land because it is more lucrative. CTED should report annually on how well the economic development goal is being achieved, and make recommendations in the event the goal is being achieved by the Act.
6. Property Rights. "Private property shall not be taken for public use without just compensation having been made. The property rights of land owners shall be protected from arbitrary and discriminatory actions." To the Commission's knowledge, no court has found a "taking" of property to have occurred due to the Growth Management Act. The attorney general issued guidance for local governments to follow to avoid takings. Nevertheless, there is a perception by some, particularly outside of the Central Puget Sound area, that the Growth Management Act has diminished their property rights. Others, however, believe that private property rights need to be protected from incompatible development and unmanaged growth. These people believe that the Growth Management Act has enhanced their property values. By adding more flexibility to the Act, local governments could address individual issues of equity and fairness, as recommended elsewhere in this report.
7. Permits. "Applications for both state and local government permits should be processed in a timely and fair manner to ensure predictability." The Land Use Study Commission is still in the process of monitoring local governments' implementation of the 120-day time limit for issuance of local government permits, which was established by House Bill 1724. Initially, some local governments have complained that the timelines have lengthened the process. This is partly due to the additional notice requirements. The Commission is in the process of surveying local governments. Insufficient information exists at this time to report on this issue.
8. Natural Resource Industries. "Maintain and enhance natural resource-based industries, including productive timber, agricultural, fisheries industries. Encourage the conservation of productive forest lands and productive agricultural lands, and discourage incompatible uses." The Growth Management Act's requirements to designate natural resource lands have largely been accomplished. Some individuals feel that local governments did not go far enough in protecting natural resource-based industries; however, others feel that local governments went too far. On balance, the Act's designation system seems to be an appropriate method of accomplishing the natural resource industry's goal. Over time, however, the designations alone may not be sufficient to maintain natural resource-based industries. This report recommends expanding current use taxation and innovative zoning techniques as additional methods to accomplish this goal. An additional measure that may provide assistance is an amendment to the Growth Management Act that would permit conservation future easements to be used as an alternative to TDRs in order to allow farm land to be located within incorporated city limits.
9. Open Space and Recreation. "Encourage the retention of open space and development of recreational opportunities, conserve fish and wildlife habitat, increase access to natural resource lands and water, and develop parks." Most local jurisdictions have identified open space and recreational opportunities; however, a recent bond measure in King County that would have preserved open space and stream protection failed. If voters are not willing to bear the cost of additional open space and habitat protection, it is unclear how effective the Act will be in increasing the amount of open space, recreational, and habitat opportunities.
10. Environment. "Protect the environment and enhance the State's high quality of life, including air and water quality, and the availability of water." Most local jurisdictions have enacted critical areas ordinances, which in the long run should achieve the State's goals of protecting the environment. Many people who testified before the Commission felt strongly that environmental protection is a key to protecting the quality of life that residents enjoy and which attracts new business to our State. The Fortune Magazine article cited the City of Seattle's air quality as one of the factors making this a desirable area to live. Others testifying before the Commission, however, felt that the environmental goal has been given more weight by the Growth Management Hearings Boards than the other goals, thereby precluding local governments from balancing the goals to reflect regional differences. Another concern relates to the availability of water. The Commission recognizes water availability as a key issue; however, it will require a larger study that is beyond the scope of the Commission's duties.
11. Citizen Participation and Coordination. "Encourage the involvement of citizens in the planning process and ensure coordination between communities and jurisdictions to reconcile conflicts." Views on the success of public participation are divided. Some people believe that the Act did encourage more citizen involvement in the planning process. Others, however, expressed a variety of frustrations including: a belief that local governments did not always follow the recommendations of citizens; a belief that the Growth Management Hearings Boards overturned plans which many had worked long and hard to develop; and a concern that last minute changes occurred to plans without adequate public participation. The Commission is recommending some amendments to the public participation process to respond to some of these concerns. Overall, the Commission believes that the level of public participation was good and the Act achieved this goal.
12. Public Facilities and Services. "Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards." The Act has directed local governments to give consideration to the availability of services when planning for growth. Transportation concurrency is a primary example. However, the results of concurrency are beginning to show that, in some areas, public facilities and services are not available, and therefore growth cannot go forward. For example, King County has identified certain "red zones" where transportation facilities are not available and development cannot go forward. The majority of the red zones are outside of the UGA's; however, some portions of the UGA is affected.Footnote5 If concurrency requirements preclude growth in urban areas, the goals of the Act to locate growth within UGAs could be frustrated. This highlights a potential impending problem of infrastructure financing, without which the overall structure of the Growth Management Act may be in jeopardy.
13. Historic Preservation. "Identify and encourage the preservation of lands, sites, and structures, that have historical or archeological significance." The Commission heard very little testimony on the topic of historic preservation. CTED has reviewed local comprehensive plans, and in most cases, local governments have taken steps to achieve this goal.
B. Use of the Goals
The Commission did hear testimony on the appropriate use of the Act's planning goals. The Act states that the goals are not listed in order of priority and are to be used exclusively for the purpose of "guiding" the development of comprehensive plan and development regulations. RCW 36.70A.020. In some cases, Board decisions have found that certain goals are more germane than others at the county-wide level, including the goals pertaining to natural resource industries, compact urban growth and reduction of sprawl. Some goals are viewed in Board decisions as "directive" and therefore require a tangible, measurable outcome; other goals are viewed as procedural because they address only how an outcome is to be achieved. Footnote6
There continues to be debate over the appropriate use of the goals. Some groups feel that the Act should be strengthened so that all local governments are required "to give effect" to all of the goals. Others believe that local governments have the discretion to balance the goals in order to respond to regional differences.
C. Summary
In summary, although six years have passed since the Act was passed, there is insufficient information to ascertain whether the Act is fulfilling its stated purpose. Part of this is due to the fact that many local governments took longer than expected to adopt their initial comprehensive plan; therefore, there is insufficient history to evaluate the effects of those plans. Overall, there are a number of GMA "successes." Perhaps one of the most fundamental successes is the fact that local governments planning under the Act have adopted comprehensive plans, and consistent zoning regulations. Prior to the Act, there was no requirement that local governments had to have comprehensive plans; nor, was there any requirement that the plans had to be followed. This procedural aspect of the Growth Management Act is important. Even those who questioned the wisdom and constitutionality of the Growth Management Act generally testified that planning for growth is good. The State must, however, be vigilant in monitoring the impacts of the Growth Management Act. The Commission recommends that on an annual basis the Legislature receive a report on how the Act is achieving its goals from CTED. In order to report, CTED will need the cooperation of local government to monitor impacts in their area.
VI. General Themes
The Commission identified four general themes that appeared as concerns in the comments it received during the information gathering phase of its work: creating certainty in the GMA planning process; providing for flexibility and equity; building on the momentum established by the majority of local governments who have successfully complied with GMA requirements, and improving the dispute resolution process.
The issues identified by the Commission were related to two additional topics the Governor asked the Commission to address in the partial veto of SSB 6637. The Governor asked the Commission to look at GMA dispute resolution process and the authority of the Boards to invalidate plans and development regulations.
A. Creating Certainty in the GMA
The Commission heard frequent comments about the lack of clear guidance in the GMA. This has led to uncertainty about the nature of the state's interests the GMA is intended to address. It has also led to disputes and appeals over actions taken by local governments.
B. Providing For Flexibility And Equity
The Commission heard many variations on the phrase "one size does not fit all" during the course of its public meetings. Counties and cities suggest that there are wide variations of geography, history, culture, and development around the state that the GMA does not recognize. While acknowledging the great diversity in the approaches taken so far in comprehensive plans, they suggest that more flexibility is necessary to allow local communities to meet their individual circumstances. Flexibility could also help address some of the harsher impacts changes in the land use system have had on individual property owners.
C. Improving the Dispute Resolution Process
The original proponents of the GMA have stated that they intended the Boards to be a place for citizens affected by local planning decisions to be heard without the formality and expense required in judicial proceedings. Many commentators question whether the Boards have developed in a fashion that achieves this objective. In addition, the Boards have faced criticism that they are not being sufficiently deferential to the decisions of local elected officials. Others have noted that the Boards, though controversial, are an essential component in creating certainty and in getting timely decisions.
VI. Issue Papers
After identifying the issues that were common themes in the comments made to the Commission, the Commission developed a list of eleven topics for further review. Commission members and volunteers from outside the Commission prepared papers on each of these topics, exploring the issue, describing the concerns, and suggesting alternative courses of action to resolve the issue. From these papers, the Commission has developed its recommendations. The following is a summary of the papers and the options considered under each.
A. GMA Requirements
1. Public Participation
The GMA requires local governments to have a public participation program that allows for "early and continuous public participation in the development and amendment of comprehensive land use plans." There is some degree of discontent with the current public participation process. There are some who believe the Boards are not honoring the community visioning process when they determine comprehensive plans are not consistent with the GMA. Others believe that local governments do not always provide for meaningful public participation, leading to appeals. There are four basic areas of concern in public participation: process, notice, enforcement, and facilitation.
2. Urban Lands
The GMA encourages new urban growth to occur within urban growth areas thereby reducing the inappropriate conversion of undeveloped land into sprawling, low-density development. The determination of the UGA is a complex process involving a combination of expected population increases and land available for a variety of purposes, including residential, commercial, and industrial. There is concern among members of the business community that local governments, although they may have identified sufficient land for these purposes in their plans, may not be able to achieve densities necessary to meet their plans. This can lead to rising business costs and may drive development to other places within the state or to other states. There is also concern about the effect limiting land supply may have on the cost of housing.
There is little information available to answer these questions. The options considered by the Commission included a range of information gathering alternatives which test a number of these hypotheses. Other options would provide incentives to encourage higher densities within the urban areas.
3. Rural Lands
Perhaps no issue has been more difficult to address than rural lands. The difficulty of the task is apparent in the GMA, which describes rural lands by what they are not: they are not urban and they are not natural resource lands. This lack of definition has led to problems for local governments attempting to comply with the GMA. It has also made it difficult for the Boards to judge when a local government has made appropriate decisions and when it has stepped over the line and is out of compliance with the GMA. Because the Boards have found some of these county decisions to violate the GMA, counties have expressed the belief that the GMA does not allow enough flexibility in planning for rural areas.
The options considered by the Commission included ways to provide more guidance about rural lands and what type of development is appropriate in those areas. These included writing definitions of rural and adding a rural goal. Another approach considered would have left the decision on densities in the rural areas to local discretion. Another option would allow for increased access to the program allowing property taxes on open space and agricultural lands to be based on current use. Other options would provide for additional resources to purchase development rights and/or use other techniques to act as incentives for property owners to leave lands in open space.
4. Agricultural Lands
The farming community expresses concern about another aspect of the GMA that they perceive as inflexible. The GMA requires counties to designate agricultural lands of long term commercial significance. Farmers point out that much of the state's agricultural land is dependent on a variety of factors that makes this determination difficult to support. Changing market conditions and water availability are two key elements to determining whether certain areas have commercial significance or not. Farmers have also expressed concern that designating agricultural land will prevent any other development or activities on that land and this may ultimately drive farmers out of business.
One option would allow for more flexibility in zoning in agricultural areas. Models examined from other states allow for a variety of approaches that allow some limited non-agricultural use of agricultural lands without adversely impacting the long term use of the land for agriculture. Other options involved changes to tax laws removing some of the tax burdens on agriculture and increased use of purchase of development rights.
5. Flexibility
A number of local elected officials and local citizens believe the GMA imposes a particular planning concept that does not fit with their communities. These concerns have led to a variety of proposals to allow local governments to either remove themselves from the requirements of planning under the GMA or to allow them to modify some or all of the requirements of the GMA. The Commission also considered an option which would allow a county and its cities to negotiate an alternative county-wide framework for complying with the GMA goals and policies. Another option would allow a local government to demonstrate that it was achieving the goals and policies of the GMA, even if it was not in exact compliance with all of its requirements.
B. Review of Local Government Decisions
1. Standard of Review
It is often stated that the GMA reflects the Legislative determination to have "bottom-up" planning. Unless a plan or development regulation is appealed, it is valid. If there is an appeal, the presumption of validity remains. The Board must determine by a preponderance of the evidence that the plan or regulation does not comply with the GMA. This standard has proven difficult to apply in the context of review of legislative enactments, where evidence supporting a decision of the local elected officials may not always be available.
The Commission reviewed a number of options for changes to the standard of review that applies in an appeal of a GMA plan or regulation. These ranged from minor adjustments that are better adapted to the type of proceeding to changes that would grant considerable deference to the decisions of local elected officials.
2. Invalidity
Since their creation, the Boards have had the authority to determine that plans or regulations do not comply with the GMA. This authority led to concerns about the effect of a decision of non-compliance on permit applications and projects that are dependent upon those plans or regulations. The Legislature sought to clarify this impact in 1995 by providing that a determination of non-compliance did not apply to permits unless the Board made a specific finding that the plan or regulation was invalid. This order only applies to permits filed after the date of the Board's order. Those projects are subject to the plan or regulations determined by the Board as complying with the GMA. The Boards have issued approximately 10 invalidity orders since the authority was granted to them.
The exercise of this authority has proven to be a potent tool for encouraging compliance with the GMA. However, it has also proven to be a focus for complaints that the Boards are undermining the original purpose of the GMA that local elected officials should make the planning decisions for their communities. The options considered by the Commission to address this authority ranged from eliminating the authority, to allowing projects to be reviewed under the goals and policies of the GMA until a new plan or development regulations are approved, to clarifying the types of permits affected and not affected by the order.
3. Alternative Dispute Resolution
One of the original purposes of the Boards was to provide an alternative forum to the judicial system for the resolution of GMA disputes. There are some concerns that the process has proven to be too formal and that access for members of the public is still difficult. In addition, there is a recognition that in cases where a Board issues a decision, the problems leading to the dispute in the first place may not be addressed. The Commission considered options which would encourage resolution of disputes before a decision by a Board is issued. These included allowing more time for issuing a decision when the parties are in negotiations and providing financial and technical resources to facilitate dispute resolution. The Commission also considered an option which would remove the authority of the Boards to issue decisions and have them focus on alternative dispute resolution.
4. Senate Confirmation of Board Members
The members of the Boards are appointed by the Governor for six year terms. They are not subject to Senate confirmation. Because the Boards have been subject to considerable criticism, there were some suggestions that having the members go through the confirmation process would provide additional credibility for the Boards. The Senate confirmation process is seen as providing assurance that the appointees to these Boards have sufficient qualifications and political credibility to survive the confirmation process. The Commission also considered an alternative which would shorten the terms of appointment to four years from the current six years.
C. Incentives
Over 155 cities and counties have adopted plans under the Growth Management Act. As these jurisdictions have moved from adoption of their plans, they have discovered some difficulties in implementation. Infrastructure financing, discussed below, is a key component of implementing capital facilities plans. Local governments need to review those plans based on the type of development that is actually occurring. In addition, addressing infill development, best available science for designating and protecting critical areas, and addressing economic development expectations will require careful attention. The Commission considered a variety of options to provide assistance to local governments in making these next steps. These options included changes to simplify annexations in urban growth areas and to state assistance in identifying and marketing industrial and commercial sites in adopted urban growth areas. Also considered, and discussed below, were infrastructure finance options.
1. Infrastructure Finance
The keystone to the Growth Management Act is infrastructure. The GMA requires local governments to include a six year capital facilities plan as part of their comprehensive plans. The capital facilities plan should also include the means for financing the new infrastructure. State funds for building new roads, schools, and water, sewer, and stormwater systems are scarce. Although local governments may impose impact fees on new development, not many jurisdictions have chosen this option. A wide cross-section of participants in the Commission's process have expressed a concern that infrastructure will not be available to meet the demands of growth. This will either result in a deterioration of service, or in some instances, may prohibit development. The Commission has identified several different options to provide infrastructure funding, ranging from using existing state funds, to authorizing the issuance of state bonds, to authorizing cities and counties to generate the funds through the sale of their own bonds.
VII. DRAFT Recommendations
The Commission has developed a list of recommendations that it believes will address the issues it heard about during its public meetings. These recommendations reflect thorough consideration of the Issue Papers and the recommendations of its advisory committees.
A. Advisory Committee Reports
1. Financing for Integrated Planning Process (Finance Advisory Committee)
| Continue the current grant program, but change the focus to proposals designed to incorporate regulatory reform measures as a key component. Funds for the program would come from existing state and local programs involved in GMA related planning activities. Funds could also come from a reallocation of a portion of the existing state sales tax on new construction and the state general fund. |
| Local governments should be authorized to incorporate
integrated planning costs into the costs of establishing
LIDs, ULIDs, and Business Improvement Districts. Local
governments should also be allowed to issue bonds backed
by the increased revenue expected from development activity
and include integrated planning costs in the costs
recovered. |
| The state should work with local and tribal governments and private interests to establish a common framework for sharing information that can be incorporated into and retrieved from public and private geographical information systems. |
2. Professional Certification Advisory Committee
| The state should provide technical assistance to local governments to allow better access to professional expertise. |
B. GMA Requirements
1. Public Participation (Issue Paper 2)
| Clarify procedures governing amendments to comprehensive plans and development regulation process to assure affected and interested individuals receive notice. |
| Require an additional public comment period prior to adoption or amendment of a comprehensive plan or development regulations if significant changes are proposed which have not been available for public review and comment. |
| Provide technical assistance and funding for local governments and community groups to assist in community visioning. (Options B & C) |
2. Urban Lands (Issue Paper 10)
| Encourage development within urban growth areas through development of information on availability of land designated and available for residential, commercial, and industrial uses and provide incentives to achieve densities and uses necessary to meet population projections. (Option 2). |
| Provide state assistance to make use of and develop an inventory of brownfields and available for industrial sites. (Option 6) |
| Clarify the definitions of urban growth and urban governmental services. Consider alternative definitions, such as defining urban growth based on level of service (Option 4) |
3. Rural Lands (Issue Paper 9)
| Add a definition of "rural growth" to the GMA that allows appropriate levels of development that are compatible with rural character to occur. The definition should recognize that rural areas may contain hamlets, villages, and other forms of rural settlements. Add a definition of "rural governmental services" that is based on the intensity of service provided, not just the type of service. (Options 2 & 3) |
| Develop "safe harbor" options that are determined to comply with the requirements of the GMA. A county which adopts such a provision could not be found out of compliance with the GMA. |
| Establish criteria to be used by a county or a city to exempt individual parcels from development regulations requirements governing use or density when the exemption will not undermine the goals and policies of the GMA. |
| Modify the law governing current use taxation to include rural lands that have been zoned as agricultural or open space land under a comprehensive plan or development regulation, whether or not they have be designated as resource lands of long-term commercial significance. (Option 2) |
4. Agricultural Lands (Issue Paper 9)
| Explicitly authorize and encourage innovative zoning techniques that allow for limited non-agricultural activity that is compatible with agricultural uses.(Option 4) |
5. Flexibility (Issue Paper 8)
| Allow a county and its cities to use the county-wide planning policy process to establish a framework for comprehensive plans that may contain variations on some GMA requirements. The process could not modify requirements for the designation or protection of critical areas or natural resource lands. The process should be subject to the public participation requirements of the GMA. The framework would need to be approved by the county and by a super-majority of the cities within the county. (Option 4) |
C. Review of Local Government Decisions
1. Standard of Review (Issue Paper 4)
| The existing standard for review of comprehensive plans and development regulations should be changed to the "clearly erroneous" standard. (Option 2). A legislative intent statement should provide that the change is intended to direct the Boards to give somewhat greater deference to the decisions of local elected officials. |
2. Invalidity (Issue Paper 6)
| Require a Board to conduct a hearing within 60 days after it issues an order of invalidity to clarify the order with a particular emphasis on the types of applications and situations covered. (New Option) |
| Clarify the standard governing the lifting of an order of invalidity. The Board may lift the order if a local government has taken actions sufficient to remove the "substantial interference" with the GMA, even if it is not yet in complete compliance with the Act. (Option 5) |
| List specific types of development applications not affected by an order of invalidity. The types of application might include minor remodels, building permits for single family residences on existing lots, and changes to plats that do not increase the number of lots. |
3. Alternative Dispute Resolution (Issue Paper 5)
| The Board may extend the time for issuing a decision if the parties request the additional time in order to complete mediation, negotiations, or another alternative dispute resolution process that is likely to result in a settlement. (Option 3) |
| Support the establishment of a state office to provide grants and technical assistance to local governments and state agencies to use alternative dispute resolution processes. (Option 2) |
| Allow the parties to an appeal before a Board to agree to have the appeal transferred to superior court. (New Option) |
D. Incentives
| Focused technical assistance for addressing problem areas, such as urban infill, capital facilities, economic development, and using best available science in addressing critical areas. |
| State assistance for marketing industrial and commercial zoned land within urban growth areas. |
| Simplify the process for cities to annex unincorporated areas within the urban growth areas that are served by city services. |
| Expand the current ten-year property tax exemption for multi-family housing to cities of 35,000 population or greater. |
E. Infrastructure Finance
| Reallocate a share of the existing sales tax on new construction to GMA jurisdictions that are in compliance with the GMA to fund infrastructure identified as part of the capital facilities element of their comprehensive plans. |
| Referendum submitted for voter approval to issue bonds to fund infrastructure needs identified as part of capital facilities elements in comprehensive plans. |
| Allow cities and counties to issue bonds for infrastructure needs identified as a part of the capital facilities element in a comprehensive plan. |
VIII. Conclusion
Source: Bremerton, et al., v. Kitsap County, CPSGMHB No. 95-3-0039 at 174.
Source: "Housing Market Takes Off: Boeing's surge, bustling economy push prices up," Puget Sound Business Journal (10-25-06).
Source: "Homing in on Home," The Seattle Times (10-27-96).
Source: Fortune Magazine, November 11, 1996, pp. 133-136.
Source: Update 96, Second Quarter (April - June), Transportation Concurrency Management Program, King County Department of Transportation.
Source: Bremerton v. Kitsap County, CPSGMHB Case No. 95-3-0039, at 25, 58.