This is the Land Use Study Commission’s next to last report to the Governor and the Legislature. This report includes three recommendations for legislation. These relate to: (1) procedures for designating mineral resource lands, in response to the Governor’s veto of SHB 1472 from the 1997 Legislative session; (2) correcting drafting errors in annexation legislation recommended by the Commission and enacted by the Legislature in 1997; and (3) extending for two years the 120-day permit timeline adopted by the 1995 Legislature.

Although this report does not make recommendations that are as significant as those in the Commission’s 1996 Report, the recommendations relating to procedures for designating mineral resource lands, if enacted into law, will resolve an issue about which the Legislature and the past three Governor’s have not been able to reach agreement.

In addition to specific legislative recommendations for the 1998 legislative session, this report discusses topics still under review by the Commission and that will be included in its final report in June 1998. Chief among these is the development of a Consolidated Land Use Code. The Commission has developed an outline of the code. With the assistance of advisory committees, over the next three months the details of key areas of the code will be filled in. The Commission expects to make significant progress on the code before it sunsets in June, 1998.

It is with great sadness that the Commission recognizes the death of Terry Husseman, one of its members and a respected colleague . Mr. Husseman died on January 6, 1998.

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." RCW 90.61.010. In addition, the Commission was given a number of additional tasks, including:

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 has decided to prepare an additional report that it will present to the Governor and the Legislature in June 1998. The Commission is scheduled to go out of existence on June 30, 1998.

The Commission has 14 members, eleven of whom are appointed by the Governor. The membership represents a cross-section of those interested in land use and environmental 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 (DCTED), or their designees. The director of DCTED is the chair of the Commission. Tim Douglas, Director of DCTED, has continued the appointment of land use attorney T. Ryan Durkan, of the Seattle law firm Hillis, Clark, Martin & Peterson, as his designee.

Other members of the panel, appointed by the Governor, include: Kitsap County Commissioner Phil Best, of Bremerton; Spokane neighborhood activist Sheila Collins; Tom Campbell, President of Snonet; 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, a labor activist from 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 former President of the Washington Association of Wheat Growers.

James Toohey, Department of Transportation, and Terry Husseman, Deputy Director of the Department of Ecology, have been appointed by their respective directors to represent their agencies. Skip Burch, formerly with the Department of Transportation, served on the Commission until his retirement in June 1997.

As of October 20, the Commission has held 13 meetings during 1997. In addition to its regular monthly meetings, the Commission held three special meetings to respond to issues pending before the Legislature and complete business remaining from prior meetings. The Commission held meetings in Seattle, Olympia, Tacoma, Bellingham, Vancouver, Ellensburg, and Spokane. The Commission held two public meetings to consider its draft report. One was in Seattle on October 28. The other was via teleconference between the cities of Lacey, Mount Vernon, and Pasco on October 29. The Commission also held a public meeting on the integration of the GMA and the SMA in Olympia on January 8, 1998.

D.    Advisory Committees

The Commission created two new advisory committees during 1997. In addition to these two groups, the Permit Monitoring Work Group, created during 1996, continued its work and commissioned a study on the implementation of the 120 day permit timeline required by ESHB 1724.

E.    Awards

The Commission received an award from the League of Women Voters of Washington Education Fund. In September 1997, the Education Fund announced its 1997 Growth Management Awards and presented a group award to the Commission. The award recognized that the Commission "[r]ecommended practical changes to GMA based on excellent public outreach and [a] collaborative consensus process." Special recognition was given to the Commission’s Chair, T. Ryan Durkan, and to the Commission staff. Commission member Keith Dearborn was also nominated for an award.

In its 1996 Report, the Commission made a number of recommendations for changes to the GMA. These recommendations fell into four broad categories: GMA requirements; review of local government decisions; incentives; and infrastructure finance. The report’s recommendations were incorporated into legislation, much of which was passed by the Legislature and signed into law. The following is a summary of the 1996 Report’s recommendations and their disposition in the 1997 legislative session.

The bulk of the Commission’s 1996 Report focussed on issues surrounding implementation of the GMA. The Commission proposed a set of modifications to the GMA designed to address the most frequently heard concerns. The Commission’s recommendations were made Governor Request legislation and introduced as companion measures HB 1869 and SB 5768. Because of procedural issues, the legislation was reintroduced as SB 6094. After amendment in both the Senate and the House, it was eventually passed and sent to the Governor. On May 9, 1997 Governor Locke signed and partially vetoed ESB 6094. The Commission’s recommendations were left largely in tact in the bill as it was signed by the Governor. The following is a brief summary of recommendations from the Commission’s 1996 Report that were included as elements of ESB 6094.

The Commission proposed modifications to the GMA to require additional notice to the public when amendments to a comprehensive plan will affect a property owner. The Commission also recommended that an opportunity for public comment be provided before a local legislative body may adopt a comprehensive plan or an amendment to a plan that differs significantly from the proposal made available for earlier public review.

The Housing Goal in the GMA directs local governments to work towards providing a variety of housing types. Counties and cities are also required to include a housing element in their comprehensive plans. Members of the business and development community had expressed concern that there is not enough land available within the urban growth areas (UGAs) to meet this goal and to provide sufficient employment opportunities. Members of the environmental community also expressed concern that other GMA goals were also not being met. In order to provide the information to address these concerns, the Commission recommended that six fast growing Western Washington counties begin collecting information that would enable them to determine their success at meeting the GMA goals and their locally adopted county-wide planning policies. On a five year cycle, these counties will evaluate their success at meeting these goals and, if they fall short, will be required to take corrective action.

The Commission’s 1996 Report identified the rural lands as one of the most troublesome issues facing county elected officials. The Commission concluded that the problem facing county officials was the lack of substantive guidance in the GMA as to what types of development would be appropriate in rural areas. The Commission proposed clearer guidance for counties. The guidance established new definitions for "rural development" and "rural governmental services." It also provided flexible standards by which a county could allow appropriate development in rural areas. Finally, it explicitly allowed counties to recognize that existing settlements in rural areas and allow for infill and other limited development to address concerns of equity.

The Commission proposed two sets of provisions designed to address concerns of the agricultural community about the impacts of GMA. One provision allowed a county to used innovative zoning techniques in designated agricultural lands. Another expanded the ability of agriculturally zoned land to be eligible for open space tax benefits. A third provision required designated agricultural land to be assessed for property tax purposes using comparable sales of land sold for agricultural purposes, not for development purposes.

The Commission recommended a change in the standard of review used by the Growth Management Hearings Boards (GMHBs) to review local government decisions. The change – from a "preponderance of the evidence" to "clearly erroneous" – was designed to give greater weight to the decisions of local elected officials.

The Commission recommended several changes in the manner in the authority of the GMHBs to invalidate part or all of a comprehensive plan or development regulation. The changes were intended to clarify the impact of an order of invalidity and the process by which a local government removes itself from an order of invalidity.

The Commission made a number of recommendations to address the process before the GMHBs. These included: allowing flexibility in the time for issuance of a decision to allow alternative dispute resolution; allowing flexible compliance schedules based on the complexity of the issues; requiring the GMHBs to follow the Administrative Procedures Act; and

The Commission recognized that once a local government comes into compliance with the GMA, there should be some benefits in addition to those that come from good planning. One area that cities sought some relief was in the process for annexing territory within a UGA. The Commission proposed several adjustments to the annexation laws intended to provide a consistent process for annexation, regardless of the legal structure of a city, and to simplify the process for annexing territory largely surrounded by a city.

In its 1996 Report, the Commission concluded that local governments needed an additional source of revenue to help fund capital facilities needs identified in capital facilities plans adopted under the GMA. The Commission recommended that local governments planning under the GMA be given the authority to impose a sales tax on new construction to help fund capital facilities plans adopted under the GMA. Any tax imposed would be a credit against the state sales tax, resulting in no net tax increase, but only a shift of revenue from the state to local governments. The Commission’s recommendation was prepared as separate legislation. Although not part of the proposal introduced by Governor Locke, similar legislation was introduced by Senator Haugen as SB 5966. The bill was not considered during the 1997 legislative session.

The 1995 Legislature created the Planning and Environmental Review Fund to fund efforts to better integrate environmental review and land use planning. A central tenet of ESHB 1724 was that if better environmental review is conducted during planning stages, the need to analyze environmental impacts during project review will be lessened. This should lead both to a better understanding of the cumulative impacts of development and a more efficient permitting process. During the 1995-1997 biennium, the Legislature provided nearly $ 3 million dollars for this demonstration projects. The Commission recommended continuing funding at essentially the same level for the 1997-1999 biennium. In addition, the Commission recommended adjustments to the management of the fund to encourage greater participation by and coordination among state agencies. The 1997 Legislature did not provide additional funds for the demonstration projects, but it did make the management changes recommended by the Commission.

After reaching consensus in January 1997 on its legislative proposal, the Commission turned its attention to issues for consideration in 1997, including the tasks included in the Commission’s enabling legislation. From a long list of possible subjects, a number of topics were included in the Commission’s 1997 workplan. Several of these topics are still under study by the Commission. The Commission will include its recommendations on these items in its final report in June, 1998.

The 1997 Legislature passed EHB 1472, which addressed the designation, production, and conservation of mineral resource lands. Governor Locke vetoed the bill and asked the Commission to address the concerns that had led to the passage of the bill.

The Commission in July 1997 appointed an advisory committee to make recommendations on this issue. The advisory committee was chaired by Commission member James Toohey and met from July through early October. The Committee did reach consensus on a number of recommendations and made a report to the Commission at its October 14, 1997 meeting. The Commission tentatively approved the recommendations for public comment. At its November and December meetings, the Commission approved the following recommendations

RECOMMENDATIONS: The Commission has made the following recommendations with respect to the mineral resource lands issue.

The Commission recommends that the Department of Natural Resources (DNR), along with other state agencies, should develop a Geographic Information System (GIS) map with appropriate attributes to describe and identify sand, gravel, and quarried rock resources in Washington.

A GIS map will allow for the incorporation of data generated in the earlier phases of growth management planning, maps by the U.S. Geologic Survey, and the former Bureau of Mines. Counties will be able to access the information to assist in designating mineral resource lands. The state should be recognized as an official source for this information. Developing the comprehensive GIS layer for mineral resources will cost approximately $351,000 over three years. DNR should be given the primary responsibility for developing this information. The Commission recommends that funds be appropriated to DNR to cover the costs of this activity. The Commission recommends that these be new funds to DNR, not funds taken from another program within the agency.

The Commission recommends that DNR should develop a Programmatic Environmental Impact Statement (PEIS). This will be an important tool for assisting local governments in quantifying the impacts of mining and processing sand, gravel, and quarried rock. The PEIS should be developed using existing environmental information. This information can be found in existing environmental documents and other studies that have been written as part of the permitting process for mines. The PEIS should be designed to work in conjunction with site specific environmental review under SEPA. Because DNR is able to produce a compilation of data from existing sources rather than to develop new or site-specific information, the PEIS can be developed at relatively low cost.

DNR estimates this expense to be about $330,000. This would require an appropriation to DNR. The Commission intends that new funds should be provided DNR for this activity.

A model ordinance will provide a streamlined way for local governments to adopt practical mining regulations that are fair and offer a level of statewide consistency sought by industry. The Commission recommends that the Washington State Association of Counties work with all interested state agencies and appoint and staff a Mining Model Ordinance Committee to develop a model ordinance for local regulation of mining operations as defined in RCW 78.44.031(8). This Model Ordinance Committee should be asked to develop a model ordinance that can be used by local governments in the permitting of mining operations. The committee should be a balanced, representative group made up of representatives from state and local government, citizens, and industry.

Funding for this process and subsequent Model Ordinance Development should be provided through a mixture of local government funds and existing state funds.

Development of the Model Ordinance should take approximately one-year, and should result in a report to an appropriate legislative committee, guidebooks, and a model ordinance. The guidebooks and model ordinance should be distributed statewide through workshops and to local governments, citizens and industry in the local permitting process.

The designation of mineral resource lands should continue be handled pursuant to the existing five year periodic review and annual amendment processes provided for under the GMA. The review of proposed designations should be conducted in light of WAC 365-190-040 (g) and should be based on any significant new information or conditions relating to the life of the mineral resource. The Commission recommends an amendment to the GMA that will direct local governments to consider new information relating to mineral resource lands in the periodic review required under the Act.

The Commission is recommending that the existing written notice requirements be expanded from 300 feet to a minimum of 500 feet of property boundary of designated property. Written notice, in the form of a notice on the title, discloses the location of a mineral land’s proximity and anticipation of future mining and other related activities such as mineral extraction, washing, crushing, stockpiling, blasting, transporting, and recycling. By expanding the notification requirement an additional 200 feet, opposition to future mining may be reduced and future incompatible land uses will more likely be eliminated. It is also important to hold the local government harmless for claims resulting from providing notice.

The additional notification requirement may result in additional costs to local governments that may be required to be compensated under Initiative 601.

In 1995, the Legislature enacted a number of regulatory reform measures in ESHB 1724 that were aimed at improving the local government land use permitting system. Included were provisions designed to improve and focus public involvement during the local land use decision-making process. Also included were provisions establishing timelines for local permit decisions.

The legislature required cities and counties planning under the Growth Management Act (GMA) to make the decisions on project permits within 120 days after a project application is submitted to the local government and determined to be complete. This requirement was put in place for three years, until June 30, 1998, and was accompanied by another provision waiving liability for a local government that fails to meet the timelines. If the Legislature takes no action by June 30, 1998, local governments will not be required to process permits within legislatively established timelines, but will be required to establish their own timelines. A local government that does not make a decision on a project permit within those locally established timelines will be liable for damages caused by failing to make the decision within the locally established timelines.

ESHB 1724 also directed the Land Use Study Commission to examine the timelines and report to the Governor and the Legislature on its recommendations for any changes that should be adopted. Due to the fact that the timelines had a limited life, they have often been referred to as being an "experiment" or a pilot project.

In the summer of 1996 – shortly after the April 1, 1996 date on which GMA-planning jurisdictions were to implement the permit time limits, the Commission conducted a statewide survey of city and county governments to establish baseline conditions on how local permit processes worked prior to implementation of reforms. Of the 252 survey mailed out, 67 (26.5%) were returned. Sixteen of Washington’s 39 counties responded. Of the 213 cities, 51 responded.

The second phase of the study was to gain more in-depth information on how the reforms included in ESHB 1724 were working. The Advisory Committee worked with a consulting group from David Evans & Associates, Inc. and the Langlow Associates, Inc. to conduct a case study analysis of representative communities throughout the state. In the Spring of 1997, thirteen local governments were studied to provide information on, and analysis of, the effects of implementation of ESHB 1724, particularly with respect to the 120-day permit processing time limits.At the September 9, 1997 Commission meeting in Seattle, representatives of the Consultants and Advisory Committee presented their findings to the Commission. These findings present issues and observations not only on the 120-day permit timeline issues, but also on experiences with other permit review and processing reforms mandated in ESHB 1724.

The Permit Monitoring Case Study Report included the following summary of results:

The survey also asked for suggestions on options for the Land Use Study Commission to consider in its review of the 120 day timeline. The most common response from local governments was for the state to require local governments to establish their own processing time within a state framework. The most common preference of stakeholders was to retain the existing provisions with some refinements.

The Permit Monitoring Case Study Report included suggestions for a number of areas that deserved further review leading towards amendment of the permit timelines adopted under ESHB 1724:

The Commission commissioned an issue paper that it considered at its October 14 meeting. The issue paper identified several different options for proceeding on this issue.. The options ranged from allowing the current sunset provisions to take effect as currently planned, to making a variety of changes to the statute, to make the existing statute permanent. The Commission concluded that the permit timelines have been beneficial in some respects and to allow them to sunset was not acceptable. The Commission also concluded that there were sufficient problems with the current provisions that to make them permanent would also be a mistake. However, the Commission does not believe there is yet sufficient information to make a decision about what changes would be most appropriate. Therefore, it concluded that an extension of the sunset provisions would be most likely to lead to adjustments after additional information is available.

Public comment on this topic that confirmed the findings of the study. A representative from the real estate industry expressed concern about the lack of sanctions for a local government that fails to make a decision within the time limits. Others representing public interest, neighborhood, and community organizations expressed concerns about the adverse impact the timelines have had on public participation. There was also a concern that the Commission had not given sufficient consideration to the results of the survey. In response to these concerns, this Final Report contains a more complete summary of the findings of the Permit Monitoring Case Study Report.

RECOMMENDATION:

The provision establishing the 120 day timeline is set to expire on June 30, 1998. The time for this provision to expire should be extended to June 30, 2000. In addition, the current provision waiving liability for damages caused by the failure of a local government to comply with the 120 day timeline should also be extended.

Extending the time period will allow an additional two years of experience under the timelines. This will allow local governments, applicants, and the public time to adjust to the changes and more fully understand the impacts of, and adjust to, the changes.

A mechanism needs to be provided to review the effect of the timelines. The Commission devoted approximately $50,000 to its study. Since the Commission sunsets on June 30, 1998, some other entity needs to be designated with the responsibility and the funds to conduct any future analysis. DCTED, as the state agency responsible for implementing the GMA, is one potential candidate. Other agencies that might be considered include: Ecology, Transportation, and the Office of Financial Management. An alternative would be for the Legislature to take responsibility for the task. Another option would be one of the public policy research groups associated with one of the state colleges or universities.

Whatever approach is taken for the subsequent review, involvement of different groups in the study and analysis should be required. In addition, the review should result in recommendations to the Governor and the Legislature.

The Commission included in its 1996 Report recommendations for changes to annexation laws and boundary review board statutes designed to simplify the process of annexations designed to promote the purposes of the GMA.

One proposal made the percentage of voter approval required to approve certain annexations consistent between code and non-code cities. The proposal was intended to include a date before which a jurisdiction was required to have been planning under the GMA, but the date was not included in the legislation as it was introduced.

A second element of the Commission’s recommendations was to expand the circumstances under which a city might annex territory – an "island" – that is largely surrounded by the city. The proposal assumed that residential property owners in the territory would be able to petition for a referendum on the proposed annexation. However, because this authority was new to certain classes of cities, they were not already required to hold a referendum on an island annexation and the requirement was not included in the legislation as it was enacted.

A third element of the Commission’s proposal dealt with the extent to which a boundary review board was required to acknowledge decisions made as part of the GMA process. The Commission’s recommendations included a provision requiring a boundary review board to take into consideration both comprehensive plans and interlocal agreements relating to annexation issues. Since the enactment of these provisions, disputes have arisen in both Snohomish and Skagit counties over the deference that should be given by a boundary review board to decisions made as part of the GMA planning process. In both counties, a boundary review board has made decisions local governments believe are not consistent with the agreements reached by the cities and counties under the GMA. The Commission is not making a recommendation on this issue at this time. In reviewing all of the information provided, the Commission has concluded that the this is an issue that should be discussed in the broader context of the Consolidated Land Use Code.

Finally, a new issue has been presented to the Commission concerning the circumstances under which a city should be able to annex territory outside of urban growth boundary. The GMA currently limits annexations to areas within the UGA. There are some circumstances in which a city may require territory for a municipal purpose, such as a watershed or a wellhead protection area, and the territory cannot, or should not, be included within a UGA. Cities have expressed an interest in annexing these areas in order to better regulate activities on the land, assure public health, and to allow more efficient permit processing. Others expressed the belief that there were mechanisms available to a city to achieve most of the objectives supporting the proposal. Counties in particular expressed concern about further loss of lands to incorporation and the resulting revenue losses. They suggested that this issue should be considered in the broader context of the impact of incorporation, annexation, and revenue impacts. The Commission recognizes the importance of this issue, but is not making a recommendation at this time.

As part of its 1996 Report, the Commission made recommendations for changes to annexation statutes to simplify the process for annexing within UGAs. As a result of some drafting issues, not all of the Commission’s recommendations were incorporated into the legislation that passed and was approved by the Governor. The Commission recommends the following legislation:

1.    "Fix" Recommendations from the 1996 Report –

ESHB 1724, passed by the Legislature in 1995, included provisions providing for increased coordination between the Shoreline Management Act (SMA) and the GMA. One provision provided that, for local governments planning under the GMA, the shoreline master program would be considered to be an element of the local governments GMA comprehensive plan. Another provision gave review authority over the planning components of a shoreline master program to the Growth Management Hearings Board.

In addition to these provisions, ESHB 1724 also gave the Department of Ecology the authority to amend the guidelines governing Shoreline Master Programs. The guidelines had not been significantly changed since they were initially adopted in the 1970s. In 1996, Ecology began developing new guidelines to implement the 1995 amendments to the SMA. In the process of reviewing those amendments with an advisory committee, a number of questions and concerns arose about both the substance of the proposed guidelines as well as how they related to the development of a consolidated land use code.

In March 1997, Ecology proposed that the Commission and Ecology establish a new work group to assist in answering the questions that arose in the earlier process. Under the aegis of the Commission, the Work Group’s efforts would be more easily integrated with the ongoing task of developing a consolidated land use code.

The GMA/SMA Work Group was appointed in June 1997. John Herrick, a Commission member, and Eric Laschever, an attorney with the Seattle law firm of Preston Gates and Ellis, were appointed as co-chairs. Martha Bean, with Triangle Associates, was hired to facilitate the process. The Work Group began meeting in July 1997 and held its final meeting on October 8. The Work Group presented a number of options for the Commission’s consideration. However, no consensus recommendations were included in the report. The Commission has appointed a subcommittee of Commission members to continue the work of the Work Group. A summary of the Commission’s discussions on this issue follows.

In its public hearings on the public review draft of this report, one individual expressed concerns about the process the Commission had embarked on to address this issue. Part of the concern was based on the belief that a lot of good work that had occurred in the past through Ecology’s rule-making process in 1996 and the Commission’s own Workgroup was being discarded in favor of an entirely new process. This was seen as being dismissive of the efforts of the volunteers who devoted considerable energy in the earlier processes. Another reason for concern was the belief that the Commission’s Workgroup, if given additional time, would be able to reach consensus. Finally, there was concern that the Subcommittee set up by the Commission was not holding public meetings. This was seen by this individual as a violation of the spirit, if not the letter, of the state’s Open Meetings Act.

The Commission will rely to the greatest extent possible on the work and ideas generated by past efforts. It has concluded, however, that continuation of the Workgroup is not likely to result in a consensus recommendation prior to the 1998 legislative session, which is still the Commission’s goal. The Commission will provide an opportunity for public review and comment on any proposals suggested by the Subcommittee before they are considered or acted on by the Commission. It has also consulted with its legal advisor and believes that it has fully complied with the requirements of the Open Meetings Act.

RECOMMENDATION: The Commission does not have recommendations at this time. The Commission is continuing to work on the integration of GMA and SMA. The Commission’s subcommittee has developed an issue paper and an outline of a proposal that is being circulated for review and public comment. The Commission will reconsider this issue at its January 1998 meeting and may have a supplemental report and recommendations after that meeting.

The Commission’s enabling statute gives the following direction to the Commission:

The commission’s goal shall be the integration and consolidation of the state’s land use and environmental laws into a single, manageable statute. In fulfilling its responsibilities, the commission shall evaluate the effectiveness of the growth management act, the state environmental policy act, the shoreline management act, and other state land use, planning, environmental, and permitting statutes in achieving their stated goals.

RCW 90.61.010. In developing the consolidated code, the Commission has been directed to take a number of factors into account. These factors include:

RCW 90.61.040(4).

The Commission has begun the process of developing a consolidated land use code by identifying over a dozen existing chapters of the Revised Code of Washington that might be integrated. The provisions of these statutes have been loosely broken down into thirteen different categories and reorganized into revised structure. The categories include:

Policies: The major policies that guide state land-use and environmental laws.

Definitions: A consolidated definitions section.

State and Local Responsibilities: The state’s roles and responsibilities with respect to environmental and land use laws and the framework for local government authority within the context of the state’s policies. An important element will be the manner in which delegation of state authority to local governments is handled.

Coordinated State Plans: Coordination of state planning requirements related to environmental or land use policies.

Local and Regional Plans: A comprehensive planning statute that would integrate the planning enabling statutes with the GMA. It would also include provisions relating to regional transportation planning.

Environmental Analysis: Coordinating the state environmental policy act into the framework of the land use code.

Development Regulations: Covers the use and application of development regulations as they provide controlling policy for local land-use and environmental regulations.

Subdivision of Land: The process for subdividing land.

Project Review and Permitting: The guidelines for project review, consolidated permit processes, and decision notifications.

Funding: Funding for infrastructure, impact fees, incentives to coordinate state funding of infrastructure.

Enforcement: The consequences of non-compliance.

Appeals: Administrative review of state and local government land use planning and project decisions.

Judicial Review: This section involves expedited review, standing, and land-use petitions. It reflects current law of decisions of the court and standards for granting relief.

Miscellaneous: This section includes severability sections, effective dates, and other existing statutory provisions that do not fit in another category.

With the development of the outline, the first phase of developing the consolidated code has been completed. For the next phase, the Commission will establish technical advisory committees, under the guidance of the Commission’s Steering Committee. Each technical advisory committee will focus on specific components of the consolidated code.

The development of the outline has also shown the need to resolve several policy questions before further work can be done. These policy issues are discussed below.

The development of a Consolidated Land Use Code raises a number of important policy issues that have not been directly faced in the recent past. Aside from the issue of a uniform set of policies concerning land use and environmental law, there are a number of governance issues that must be confronted. Each statute carries with it certain assumptions about the role of state and local government in establishing and implementing state policy, the means by which decisions will be made, and the process by which decisions will be reviewed to assure compliance with state law. The following are three areas the Commission is exploring as it considers the consolidated code.

1.    Relationship between state and local governments

State statutes are often premised on some overarching state objective. When local governments are designated as the entity to further state policy, questions arise about the amount of flexibility that the local governments are allowed in fulfilling those state objectives. In some cases, state oversight is significant, such as in the Shoreline Management Act. In others, it is less, as in the Platting and Subdivision Act. In the former, the state approves local plans and reviews and may appeal permits issued by the local government. In the latter, the legislature has passed laws setting forth the requirements for the division of land. The state has no other role in approving or regulating subdivisions. Local governments are left to implement state policy, subject to judicial review for failure to comply with the statute.

There is an opportunity in the development of the consolidated land use code to clarify the state interest in land use and environmental values and to focus state resources on those interests. With the state interest more clearly identified, there will be opportunities for local governments to take on additional responsibilities to implement those interests. The issue for the Commission will be to identify and develop a framework for protecting the state interest.

2.    Coordination of state agency planning

Under existing law, a number of state agencies have authority to establish policy for a specific subject matter. There is no established process to assure that these individually established policies have been coordinated or are consistent. Governor Locke and other state-wide elected officials have recently established the Joint Natural Resources Cabinet, which is one model of an approach that might be taken to provide some consistency among state agencies. The Commission will be considering this and other models. Some of the options include:

Decisions implementing state land use and environmental laws are subject to a variety of review mechanisms. There are five separate quasi-judicial boards with authority to review state agency or local government actions. The 1995 Legislature adopted the Land Use Petition Act which combined the different appeal procedures applicable to permits into a single statute. The relationship of this act to the quasi-judicial boards has been raised as an issue.

In addition, state and local government decisions are generally subject to judicial review. This includes decisions of the quasi-judicial boards. This has led to questions of how appeals of the quasi-judicial boards should be handled.

The Commission will be considering different options for integrating these separate appeal processes. A few models that may be considered include:

Recommendation: None at this time.

During the Land Use Study Commission hearings on the Growth Management Act, a number of comments were received indicating that special purpose districts have not been adequately integrated into the Growth Management Act.

In 1990, the Legislature passed ESHB 2929 the original GMA. Section 18 of the bill required special purpose districts to conform with GMA comprehensive plans. When he signed the bill, Governor Booth Gardner vetoed section 18 because of a concern that the section as drafted exempted ports and municipal airports from all land use requirements. Although there is case-law that suggests special purpose districts must none-the-less conform to general purpose government comprehensive plans, there is some uncertainty about the issue.

The Commission has developed an issue paper that addresses the question of whether, and to what extent, special purpose districts should be required to conform to GMA comprehensive plans. The issue paper presents four options for further consideration. These are discussed below. The results of this work will be considered as a part of the Commission’s discussion of the consolidated land use code.

The Commission has not yet considered in detail the issue of how to coordinate special purpose districts into the GMA planning scheme. It has prepared an issue paper that outlines four potential options for addressing the question. These options are:

Avoids the creation of new planning requirements on special purpose districts, thereby allowing scarce resources to be spent on infrastructure and services, as opposed to planning.

Allows continued inconsistency between county and city comprehensive plans with the plans of numerous overlapping special purpose districts.

Inconsistency may hamper the GMA policy of ensuring adequate public services within Urban Growth Areas.

Ensures that special purpose districts conform to comprehensive plans of cities and counties.

Ensures that special purpose districts update comprehensive plans.

Would not resolve questions surrounding port districts and municipal airports.

One option would be to revise section 18 to delete the provision which exempted port districts and municipal airports and specifically provide that ports and municipal airports plan under the GMA.

Ensures that all special districts would be planning consistent with the GMA.

Provides benefits of option 2 (above).

Port districts and municipal airports will likely be concerned about NIMBY’s, in that local comprehensive plans may be able to trump special purpose district planning.

Port districts are municipal governments, and thus may have legal issues involved with preemption of local zoning.

Inclusion of port districts and airports implicates the essential public facility issue, which LUSC may have to table in order to reduce to manageable size.

Another approach is to focus only on the key special purpose districts at this time, such as those which provide utility services to Urban Growth Areas (sewer and water).

Responds to area of key concern, which is provision of utilities consistent with GMA.

Limiting to key providers (i.e. sewer, water). Keeps LUSC work plan more manageable.

Requires decision about which special districts to include in GMA at this time.

Does not resolve issues surrounding the balance between essential public facilities and local planning.

RECOMMENDATION: The Commission is not making any recommendations on this issue at this time. A significant majority of Commission members favor addressing the issue. This will likely be done as a part of the development of the Consolidated Land Use Code.

It’s enabling statute directs the Commission to

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, as authorized under RCW 36.70A.300. The commission shall also review the extent to which such vesting results in the approval of projects that are inconsistent with a comprehensive plan or development regulation provision ultimately found to be in compliance with a board’s order or remand. The commission shall analyze the impact of such approvals on ensuring the attainment of the goals and policies of chapter 36.70A RCW, and make recommendations to the governor and the legislature on statutory changes to address any adverse impacts from the provisions of RCW 36.70A.300. The commission shall provide an initial report on its findings and recommendations by November 1, 1995, and submit its further findings and recommendations subsequently in the reports required under RCW 90.61.030.

RCW 90.61.040(4). In order to conduct the study required by this provision, the Commission will be seeking a consultant to collect the information needed to make the analysis. The Commission has concluded that to understand the significance of vesting during a period of non-compliance or invalidity, it is important to know the amount of permit activity at other significant times during the comprehensive planning process, including the period prior to plan adoption. The general scope of work proposed by the Commission will include the following information:

The Commission will complete this study and make its report to the Governor and Legislature as part of its final report in June 1998.

In public comment on the public review draft of this report, the Commission heard concerns that the scope of work proposed on this issue is overly ambitious. The Commission will work with the contractor to assure that the scope is manageable, both in terms of time and resources.

One commentator on the draft report suggested that the Commission should examine the state’s vesting laws more generally, and not limit itself to the more narrow issues included in the proposed scope of work. The Commission will await the results of the study before it makes any decisions on what further study would be appropriate.

RECOMMENDATION: None at this time.

The concerns leading to the Commission’s 1996 recommendations have not lessened with time. At hearings around the state over the past year, the Commission consistently heard from members of the public, local officials, and the business community about the need for additional infrastructure to deal with growth occurring in those communities.

In response to these concerns, the Commission proposed to embark on a year long study of infrastructure finance issues. With the assistance of an advisory committee, the study would have addressed the issues of the amount of need, a framework for allocating responsibility among different sectors, and mechanisms designed to provide funding consistent with the framework.

As it prepared to undertake this study, the Commission received comments from the leadership of both the House of Representatives and the Senate expressing the concern that this task would detract from what the legislative leadership believed to be the Commission’s primary responsibility – development of the consolidated land use code. In deference to these concerns, the Commission consulted with the Department of Community, Trade, and Economic Development (DCTED) about the feasibility of that agency undertaking the study. Tim Douglas, Director of DCTED, has agreed to take on this task. Agency staff are in the process of developing a more complete work plan.

The Commission has offered to assist the Department as it moves forward on the study. The tentative plan from DCTED is to have a report to the Legislature prior to the beginning of the 1999 legislative session.

RECOMMENDATION: None at this time.

The Commission has been asked by the Puget Sound Regional Council and the Department of Transportation to look at the treatment of essential public facilities under the GMA. There are two basic concerns. One has to do with the manner in which facilities are designated. The other has to do with the mitigation of impacts, particularly when facilities benefit either a region or the state as a whole, but impose most of their impacts in a limited area. The Commission has requested the Department of Transportation, which has an interest in the issue, to work with other state agencies and local and regional governments to prepare an issue paper for the Commission’s consideration. The Commission expects to receive the paper in January 1998.

RECOMMENDATION: None at this time.

The Commission is scheduled to go out of existence at the end of June, 1998. As it prepared its workplan and recommendations for this 1997 Report, the Commission became aware of the fact that some of its recommendations would benefit from having an entity take responsibility for future studies. For example, the Permit Monitoring Report recommendations an additional study with a report to the Legislature in 1999. The Commission considered an issue paper which outlined a number of different options for continuing the work of the Commission. After considering these options, the Commission concluded that it would not make a recommendation on the issue. It believes that any recommendation proposing the continuation of the Commission would be seen as self-serving. In addition, the Commission is concerned that this would detract from its efforts to complete its work by June, 1998.

In its public hearings on the Public Review Draft of this report, several commentators spoke in favor of the continuation of the Commission, or some similar type of independent entity. Although the Commission is gratified at this measure of public support, it reaffirmed its conclusion that the decision about whether the Commission or some other entity should take up where it ends is a decision that belongs with the Governor and the Legislature.

The Commission’s Chair appeared before the Senate Government Operations Committee in December 1997. Committee members asked about the issue. They encouraged the Commission to take the issue up and present options and make a recommendation for the Legislature’s consideration. The Commission discussed the issue at its December 1997 meeting and will also consider it at its January 13, 1998 meeting. Attached to this report is an issue paper discussing options that might be considered.

RECOMMENDATION: [RESERVED. A supplemental recommendation may be made after the Commission’s January 13, 1998 meeting.]

In its 1996 Report, the Commission recommended several changes to tax law designed to provide an incentive for those engaged in agricultural activities to leave their land in agriculture or open space rather than develop it.

One recommendation expanded the current use property tax program to include any land designated as land of long term commercial significance under the GMA, or land zoned for agriculture in a jurisdiction planning under GMA. A second recommendation limited types of sales that an assessor could consider when assessing agricultural land for property tax purposes. The recommendation excluded from comparable sales agricultural land that has been sold for development purposes.

Just prior to adoption of its 1997 Report, the Commission heard comments from the Columbia County Assessor, expressing concern about the impact of these changes on property taxes that will be paid by some citizens in his and some other Eastern Washington counties. Because a significant amount of land in many of these counties is either designated as agricultural land under the GMA, or zoned for agriculture, the effect of the changes may be to shift a considerable part of the tax burden to relative small urban areas. In addition, without a requirement for income production, these lands might essentially be used for residential purposes.

The Commission agreed to consider the issue in more detail and to work with the county assessors in order to address their concerns while also working towards the Commission’s objective of encouraging the protection and continued use of agricultural land for agricultural purposes.

One option the Commission briefly discussed was to recommending deleting the provision giving land zoned for agricultural purposes eligibility for current use tax treatment. A second option would be to make the program voluntary for counties, upon action by the county or city legislative authority.

The Commission will discuss this issue at its January 1998 meeting and may have make a supplemental report to the Governor and the Legislature on this issue.

RECOMMENDATION: None at this time. The Commission may have a supplemental report after its January 13, 1998 meeting.

This 1997 Report of the Land Use Study Commission includes a limited number of recommendations for legislative action for the 1998 legislative session. One recommendation, that relating to the designation of mineral resource lands, will help solve a longstanding debate over how those lands are designated. Another recognizes the importance of the 120-day permit process timelines enacted in 1995, while also recognizing that there is insufficient data to recommend specific changes to the statute.

The Commission will make one final report before is sunsets on June 30, 1998. That report will include the Commission’s recommendations on a consolidated land use code. The Commission may also make recommendations on the process for designating and mitigating the impacts of essential public facilities and the inclusion of special purpose districts, such as sewer and water districts, into the GMA planning process.