October 28, 1998

This is the final report of the Land Use Study Commission[1]. The Land Use Study Commission is the fourth significant effort in Washington in the last ten years to examine issues concerning governance, growth, and the environment.[2] Each of these previous efforts resulted in changes to the land use and environmental system in Washington and improvements in the ways that we deal with the issues involved. The Land Use Study Commission believes that its recommendations further those prior efforts and will maintain and enhance the quality of life in Washington, protect and enhance the environment, improve the way we govern ourselves, and lead to better use of scarce public and private resources.

In each of its prior reports, the Commission focussed on incremental changes to Washington’s laws to address particular issues with the implementation of the Growth Management Act and related statutes. In this final report, the Commission is considering much more sweeping changes to Washington law. Such sweeping changes will take time and cost money. There must be a public consensus that a consolidated code is necessary and will have a benefit. This consensus does not currently exist. The Commission believes that by exploring the benefits and problems with the consolidated code, and making suggestions on how it could be implemented, the consensus can be achieved over time.

1. Overall Recommendation (See Discussion at Part IV  below.

2. Governance (See Discussion at Part V.A   below.

3. Planning (See Discussion at Part V.B   below)

4. Environmental and Project Review and Permitting (See discussion at Part V.C below.)

5. Appeals and Judicial Review (See discussion at Part V.D  below.)

6. Enforcement (See discussion at Part V.E   below.)

7. Funding (See discussion at Part V.F   below.)

The Commission was established by the Legislature in 1995 to develop a consolidated land use code, described by the Legislature as the integration and consolidation of the Washington’s land use and environmental laws into a "single manageable statute." The reasons for developing a consolidated land use code are numerous.

Layered Statutes. Over the last thirty years, the Legislature has adopted many new laws designed to protect or address specific environmental concerns. These laws were almost always additions to, rather than replacements for, existing statutes. This has resulted in complicated layers of regulatory provisions that is sometimes difficult to unravel. A consolidated land use code will bring these various statutes into consistency and eliminate overlaps and duplication.

Population Growth. The last fifty years have seen a substantial increase in Washington’s population,[3] putting strains on both infrastructure and natural resources to handle the impacts. The pressure of growth has also presented difficulties for our governmental systems as they seek to find the financial resources to manage that growth. A consolidated land use code will address the financial needs of local governments and provide additional resources to assist them in meeting their obligations.

Uneven Economic Development. Washington state as a whole has been experiencing economic growth higher than the national average for the last several years. At the same time, some areas of the state have continued to experience higher than average levels of unemployment. As the economy of the state booms, these areas have not experienced the benefits. This is not a new issue in Washington. In 1976 the Legislature enacted legislation requiring state agencies and local governments to include economic considerations when adopting rules or ordinances. The Legislature included the need to share economic growth statewide as one of the findings supporting the passage of the GMA. In 1998, Governor Locke and the Legislature have both initiated efforts to understand the problems of those communities and develop new approaches to helping them. A consolidated land use code will provide improved governance structures that will help local governments develop cooperative agreements with neighboring jurisdictions and develop partnerships with the state.

Housing Affordability. Housing affordability has also been a continuing concern of the Legislature, resulting in a number of different laws. The Housing Assistance Program, the Affordable Housing Program, the Washington Housing Policy Act, and the Housing Finance Commission have each been separately authorized by the legislature to address the affordable housing issue. The GMA includes a housing goal and specifically directs counties and cities to include a housing element in their comprehensive plans.

The impact of the GMA on housing affordability has received attention in the last few years. In 1997 the Legislature added a requirement that six fast growing western Washington counties evaluate their success at meeting GMA goals relating to housing availability and take action to correct any deficiencies. A consolidated land use code will result in a more efficient permitting system which should contribute to lower housing costs.

Water Quantity and Quality. Water quantity and quality have also been a perennial concern for many of Washington’s citizens. Washington water statutes going back to territorial days govern many aspects of how water is treated by the legal system. New federal and state laws have addressed concerns about pollution in lakes, rivers, and marine waters. The GMA included provisions requiring new construction to demonstrate water availability. But many parts of the state are facing competing needs for water for domestic consumption, commercial, agricultural, and industrial uses, and instream flows. In 1998, the Legislature authorized locally established watershed planning processes, with state and tribal participation, to set instream flows as one means to get a handle on these competing interests. A consolidated land use code will encourage cooperative relationships between governments and improve allocation of scare resources.

Endangered Species Act. An added complication for Washington’s land use system is the likelihood that in early 1999 several salmon runs will be placed on the list of threatened or endangered species under the federal Endangered Species Act, adding to those that have already been listed. Significant portions of Washington, including many of its most populous areas, will be affected by the listings. The Washington State Joint Natural Resources Cabinet released its first working draft of a statewide strategy to recover salmon on September 25, 1998. The working draft addresses issues involving water resources, land use, habitat, and stormwater. There is a strong likelihood that the final strategy proposed by the Governor to the National Marine Fisheries Service will have wide ranging impacts on many of the Washington’s land use and environmental laws. A consolidated land use code, through improved enforcement and better use of scarce resources, can serve as an important component of a recovery strategy.

As these examples show, there are sundry forces at play affecting Washington’s legal and natural environment. The Commission believes that a consolidated land use code will be an important tool in bringing rationality to this chaotic system. Governor Locke succinctly stated the benefits of a consolidated land use code in his Executive Order extending the Land Use Study Commission. He identified five benefits:

The Commission recognizes that full implementation of a consolidated land use code must be done over time, not in a single stroke. For that reason, the Commission is recommending both the overall framework for the consolidated code as well as some specific changes for consideration by the Governor and the Legislature for the 1999 legislative session.

The 1995 Legislature made the following statement as the first section of ESHB 1724, the Legislation creating the Commission:

L. 1995, ch. 347, § 1.

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 (repealed effective June 30, 1998).[4]

The Commission identified over a dozen existing chapters of the Revised Code of Washington that might be included in a consolidated land use code. In its review of these laws, the Commission identified the different chapters that could hold the various provisions of those laws. These categories would translate into chapters of the consolidated code.[5] As a consolidated code, the chapters would have be interrelated. Those interrelationships are discussed in Part V  below. These common elements form the basis for the discussion in this report.

2. Principles and Assumptions

As a result of the hearings it held over the last three years, the Commission concluded that a consolidated land use code would be an effective means of accomplishing the legislative goal of using the GMA as the integrating framework for land use and environmental law in Washington. The Commission’s recommendation is based on the following principles and assumptions:

a. Four Principles of a Consolidated Land Use Code

A consolidated land use code must meet the following principles:

b. GMA as Integrating Framework

The GMA should serve as the integrating framework for land use and environmental decisions. Integrating environmental protection into the land use planning and decision making process is controversial. Many of the GMA decisions local governments have made are based on certain assumptions, such as that current SEPA and its EIS process is available to address specific impacts of individual projects. The transition to a system where some significant land use decisions are made during planning and adoption of development regulations will require adjustments on the part of local governments and the public. In some cases it may require local governments to revisit planning decisions made and development regulations adopted in the past to assure that environmental impacts have been adequately analyzed and addressed. In other cases, it may result in limitations on the issues neighbors may be able to raise during project review.

c. Value Engineering

Proposed changes should have demonstrable benefits. Local governments and the public are still catching up with the changes enacted over the last several years. Future changes to state laws must be made to provide more clarity and certainty to existing processes.

d. New Models of Governance

The current dichotomy between state regulation and local control is too simplistic and does not allow for effective decision making. New models of governance that recognize the need for a partnership among governmental entities and provide for shared governance are needed.

e. State Agency Coordination

State government actions have a significant impact on local communities throughout the state. When not coordinated, state agency actions can lead to confusion and inefficiency. State government actions should be coordinated and based upon a unified position on growth and environmental issues.

f. Eliminate Duplication and Overlap

There are a wide array of state statutes that have many areas of overlap. Implementing these laws is confusing at best. The complexity and duplication in existing regulations leads to inefficiency in implementation. This results in a waste of scarce public resources for environmental protection. For example, the shoreline management act, the hydraulics code, and the GMA critical areas protections all address similar issues involving wetlands and habitat. Coordinating the requirements of these different provisions could simplify compliance on the part of a project applicant, ease enforcement, and result in better protection for the environment.

g. Incentives

Incentives help to ensure that local governments that comply with the GMA and other laws that provide state-wide benefits are rewarded for their efforts. Benefits can include access to funds to pay for infrastructure and other capital facilities needs to accommodate growth.

h. Essential Public Facility Siting Needs Improvement

Disputes over the process of siting essential public facilities have generated lengthy processes for siting decisions or made it impossible to make a decision. The process delays can result in higher permitting costs, increased construction costs, increased attorneys fees, and less money for community mitigation. Improved procedures are needed to assure that facilities, when needed, can be sited in a timely manner, taking into account the impacts on affected communities.

3. Statutes Included in Consolidated Code

The Consolidated Land Use Code proposed by the Commission would create a new title in the Revised Code of Washington and move existing provisions of several statutes into that title. The major statutes that would be moved include:

Over time, additional statutes may be consolidated into the code. For example, special purpose districts operate under separate planning statutes which can lead to fragmented land use planning. See, e.g., RCW 57.16.010 requiring water-sewer districts to adopt a comprehensive plan before undertaking certain kinds of actions.

As the first step towards implementation of a consolidated land use code, existing land use and environmental laws should be recodified within a new title of the Revised Code of Washington. Future efforts would focus on more fully integrating these different statutes with one another and addressing the substantive changes discussed elsewhere in this report.

The recommendation for a consolidated land use code described under Part IV above describes only a rearrangement of existing statutory provisions. A consolidated land use code will also require substantive changes to existing statutes. The Commission recommends that the following items be incorporated into the consolidated code. As discussed previously, these elements should be implemented over time. They have been grouped under six broad categories. These categories will need to be translated into the appropriate chapters of the land use code described in Appendix C.

1. Conflicting Layers of Governance

Washington has a complex governmental structure that involves a variety of state and local governments with different authority and responsibility. Governance issues arise around the relationship between different levels of government, such as between the state and counties and cities; between the same types of governments, such as between cities and counties; and between different types of governments, such as between cities and counties and special purpose districts.

a. Local Government Governance Issues

At the local government level, the different local governments often have overlapping authority. This can lead to conflicts over territorial jurisdiction, particularly when taxes or other revenue sources flow to the local government with jurisdiction. As between the state and local governments, the issues largely revolve around issues of authority and control. The common expression of the difference is expressed as a choice between state control or local control.

The local government structure has been the subject of several studies over the years, including the Washington State Local Governance Study Commission, which issued its report in January 1988. The first paragraph of the Governance Study Commission’s Recommendations states:

Washington local governments are fighting a losing battle to fulfill their responsibilities in today’s changing world. Their powers fall short of their problems: their structures are often outdated, and hard to change; most of all, their revenues are inadequate for the services they are expected or required to perform. Frequently there are too many local governments, particularly in densely populated areas outside of cities, and too little coordination among them in coping with problems that often cross jurisdiction lines. Citizens feel uninvolved and unrepresented in the cumbersome processes through which local governments are obliged to operate.

The Quiet Crisis of Local Governance in Washington, Final Report of the Washington State Local Governance Commission, Vol. 2, p. 1 (1988). This is not a dissimilar list of concerns and problems expressed about local governments today.

There have been changes since 1988 addressing some of the problems identified by the Local Governance Commission. The GMA made some modifications to the relationship between cities and counties, including an effort to identify the types of services each should be primarily responsible for. It also implemented mechanisms to help resolve some of the disputes that arise between cities and counties over land use policies. However, these were only partial solutions.

However, some issues have not yet been addressed. For example, the GMA did not provide for the elimination of any local governments. And, although the Legislature did adopt a provision in the GMA to coordinate special purpose district planning with GMA plans, the section was vetoed by Governor Gardner.

b. State and Local Governance Issues

The traditional relationship between state and local government has tended towards a hierarchical structure. Local governments generally can only exercise the authority given them by the state. In those areas where the state exercises its authority, local governments are often limited to either implementing state requirements or exercising their authority within the limits established at the state level. The state exercises its authority through a variety of means. Aside from the state constitution, legislation and state agency rules provide the major mechanisms for establishing the state’s authority and limiting the authority of local governments.

There are subject matters over which the state legislature has explicitly provided for an alternative type of relationship. The GMA, for example, establishes the broad framework for local government decisions. Within this framework, however, city and county GMA planning decisions generally have a presumption of validity. State agencies do not have approval authority over local government decisions. State agencies and members of the public have the burden of demonstrating local government decisions do not comply with the GMA.

This process differs from many other environmental laws, where state agencies establish the standards, and must approve or validate local government actions. As a result, there are conflicting roles and responsibilities over the management of state resources depending on the resource.

There have been some recent efforts to provide alternative approaches to the state and local governance structure. For example, the 1998 Legislature authorized local governments to establish watershed basin planning processes that, with the involvement of state agencies, can exercise some of the authority previously exercised exclusively by the state.

2. Discussion

Reforming governance structures is fraught with difficulties. There are a variety of concerns that come to bear in any discussion of the issue. In an effort to sort through the issues, the Commission has identified two aspects of the relationship that, if explored more carefully, may provide for a means of developing improved governance structures. The first aspect is developing a clearer understanding of the role the government will be playing in the process. The second aspect is the regional scope of the interest that is under consideration.

a. Aspects of the State/Local Relationship

i. Governmental Roles

Governments can serve a variety of roles, from regulator to facilitator to funder. Some of these roles are better implemented locally, some regionally or at the state level. For example, it is generally easier to collect taxes statewide and distribute them locally. Aside from efficiencies in the collection process, this also allows for some redistribution to accommodate statewide interests.

An important component of the role includes the degree to which special expertise or unique circumstances are important. This may also depend on the degree of sophistication or the size and location of the local government. It would be a waste of resources for a small city that receives only a few permit applications a year to have on staff a fish biologist to review the impact of those applications on fish resources within the jurisdiction. A more centralized source of technical expertise may make sense in this case. On the other hand, a large and populous county that processes hundreds or thousands of permit applications a year may find it advantageous to have its own staff biologist. With a more limited territorial scope, the county biologist may have a much better understanding of the unique characteristics of his or her area than someone who is responsible for a much larger area.

ii. Scope of Interest

The regional scope of the interest that is in question is the second criteria that plays a role in evaluating the appropriate governance structure. Some issues are of only local concern and do not require involvement or affect the interests of a broader community. Other interests have impacts on a region or implicate interests that are of regional or statewide importance.

Governance structures must be adaptable to these differences. Current governance is generally based on a hierarchy of governments. The state government is at the top of the state governmental structure, with general purpose local governments and special purpose districts exercising what authority is granted to them by the state.

The Commission has found it useful to examine the interests of the different governments by separating those interests into three broad categories: (1) issues of only local concern; (2) issues of greater than local concern, i.e. regional or statewide; and (3) issues of solely statewide concern. Some interests may clearly fall into one category or another. For example, a city’s desire to maintain a particular theme to its downtown is a matter largely of local interest. There is little impact of the decision on neighboring communities or the state as a whole. On the other hand, the Legislature’s decision about whether a new university is needed and where in the state it should be located is a matter of almost exclusively statewide concern.

The middle category, those issues that are of more than local concern, may comprise the majority of issues local governments deal with. Many local government decisions have impacts beyond the local government’s territory. A local government’s decision to allow commercial or industrial development in a particular area will likely have impacts on the state and regional transportation system. It may also have environmental impacts beyond the community in which it is located. The standards that apply to the decision are therefore of more than local concern.

b. Coordinated Decision Making

One alternative governance model that has received some recent attention might be called coordinated decision making. The Watershed Planning Process enacted by the 1998 Legislature has many of the elements of this model.

In coordinated decision making, the governments with decision making authority collaborate to reach a decision that each then ratifies. They decide how to involve citizens, for example by allotting time at each meeting for public comment; appointing advisory committees or work groups; meeting with constituents between the joint sessions, or by providing additional seats "at the table."

i. Steps in Coordinated Decision Making Process

The basic steps in coordinated decision making are:

ii. Principles for Coordinated Decision Making

The following are principles that should govern the development of a coordinated decision making process:

iii. Using Coordinated Decision Making to make Projects Decisions

Coordinated decision making can be used for specific projects either on an ad hoc basis or through procedures prescribed in a framework.

A. Ad hoc process

Most coordinated or collaborative decision making processes are currently established on an ad hoc basis. One party will suggest the idea and other parties decide whether to participate. If they do, they work to address the issues. Oregon and other states encourage such efforts by providing technical assistance for the convening process and by providing funds for facilitation services. Under this approach, the default decision making process, if parties do not reach agreement, are the processes the parties have available, such as litigation or political action to change policy or leadership.

B. Pre-established framework

This model provides a structured framework for establishing a coordinated decision making process. As an example, the state or county, or the governments of a region, would establish a framework that promotes negotiated decisions for a specific project or for a type or types of projects, such as essential public facilities. The framework would specifies how coordinated decision making process would be convened, who has standing to participate, what issues are negotiable or nonnegotiable, and how decisions will be made if the participants cannot agree.

An example of this approach is the Wisconsin statute governing the siting of solid and hazardous waste facilities. Under that process, a local negotiation process is established when the applicant and the local government are unable to agree on siting. From 1982, when the act took effect, through June 1997, parties had reached agreement in 54 cases. They had been assisted by mediators in eight of those cases and had invoked the default decision process three times for a total of 57 decisions.

iv. Using Coordinated Decision Making for Rule or Policy Development

Coordinated decision making can be used to develop rules or policies that apply either on a regional or statewide basis. The Administrative Procedures Act contemplates a form of coordinated decision making through its recognition of negotiated rule-making. Negotiated rule making is a process by which representatives of any agency and of the interests affected by a subject of rule-making seek to reach consensus on the terms of a proposed rule and on the process by which it is negotiated.[6] At the regional level, the 1998 legislation authorizing Watershed Planning Processes is an example.

Coordinated decision making for rule or policy development will generally require authorizing legislation. The legislation should enable a consortium of state agencies and local governments to develop and adopt a rule for regional purposes. It should specify the procedures for convening the process and a default decision process if an agreement is not reached.

The emphasis for policy development should be on those issues that are of both greater than local concern. These are those issues where there is value in establishing multi-jurisdictional agreements and regulatory authority to conserve and protect important state interests including: substantial health and safety issues; ensure essential public facilities and unwanted land-uses are sited; protect critical environmental and natural resources; conserve valuable energy resources; and mediate cross-jurisdictional impacts on ecosystem resources.

3. Options for Implementation.

a. Intergovernmental Coordinating Council

Much of the current debate over governance breaks down into the question over whether there are "state mandates" or there is "local control." Processes need to be put in place to change the nature of the discussion and recognize that different levels of government have different roles and responsibilities to play in our society. Rather that being in competition, there should be a partnership between those governments to make the best use of each partners resources.

An Intergovernmental Coordinating Council would be one way to establish a forum for this partnership to occur. It would bring together the interests of local, state, and tribal governments in a constructive discussion on how to advance the interests of Washington’s citizens as a whole.

The success of such a body will depend on a variety of factors. The amount of authority it has is one factor. If it is perceived to have no real authority, it will not have much impact. On the other hand, if it is seen as having too much authority, it will be seen as threatening by those entities that currently have the authority. There will need to be a careful balance between these two concerns.

One issue that is likely to be raised concerning this body is that it will tend to result in a lessening of standards to the lowest common denominator. In subject areas where there are significant statewide interests, this potential lessening of standards is seen as a serious flaw. This is a legitimate concern that will need to be addressed by clearly establishing the boundaries of the Council’s authority.

b. Regional Dispute Resolution Processes

A framework for establishing coordinated dispute resolution processes should be established. The framework should be based on the principles identified under Part 2.b.ii above. The framework should allow the regional process to address either specific projects or specified policy or rule development. The framework should also allow the process to use either an existing structure that can be adapted to the coordinated decision making model or to establish a body specifically designed to address that issue.

As with the Intergovernmental Coordinating Council, there will be concerns that this process will lead to a reduction in standards necessary to protect important statewide interests. For state agencies expected to participate in these processes, there will be a concern about the potential for a large number of different processes and the impact on agency resources. There is also a concern that allowing a variety of different fora to address narrowly defined issues will perpetuate one of the problem of looking at an issue from a narrow perspective and not seeing how it fits into the broader range of issues.

c. Office of Dispute Resolution

A key component of coordinated decision making is the provision of technical assistance to both state agencies and local governments to help establish procedures and work through the process. A number of states have adopted more or less formal mechanisms to provide that assistance. Oregon, for example, has established an Office of Dispute Resolution that provides both assistance in evaluating issues for their potential for resolution, identification of facilitators and mediators, and matching grants to help pay for the costs of the process.

1. Background

a. State Agency Coordination

Under the GMA, counties and cities are required to adopt comprehensive plans that provide a roadmap for the kind of communities they want to be. The plans are required to address a set of specific issues, and must include a plan for financing capital facilities. At the state level, there are comparable planning activities, but they are generally focussed on specific issue areas. For example, the Transportation Commission is responsible for developing the State Transportation Plan, which includes many similarities to a comprehensive plan. Other state agencies develop similar strategic plans, either as an effort to manage resources or set priorities, or to comply with statutory requirements.

What does not exist at the state level is an integrating document that brings the state’s goals and objectives together in a single place and sets forth strategies for achieving those objectives over time. The closest document is the operating and capital budgets. The budgets are an expression of the Governor’s and the Legislature’s priorities. Unlike a comprehensive plan, however, the budget process is not very forward looking, except for considerations about future impacts of current budget decisions.

Comprehensive planning processes often involve an extensive public involvement process to establish the community vision. The plan is then designed to achieve that vision. Budgets are not generally developed through this type of process. A budget is usually the expression of the priorities of the person proposing it.

One of the drawbacks of not having a comprehensive state plan is the difficulty in assuring that individual state agency actions are consistent with one another and do not work at cross purposes. Sometimes this may be nothing more than creating duplication. In other circumstances they may be outright conflicts. Although the Governor has considerable authority to establish policies and goals, in practice it is difficult for any governor to maintain the tight control that would be necessary to assure that all agencies act in concert with one another.

In the last several years, there have been efforts at the state level to institute procedures designed to address this issue to one degree or another. Governor Lowry, by Executive Order, directed state agencies involved in disagreements to bring the matter to the director of the Office of Financial Management. The OFM Director had the authority to resolve the dispute, or if the need arose, to refer the matter to the Governor. Governor Lowry also encouraged the use of alternative dispute resolution mechanisms, both to resolve disputes between state agencies, but also between the state and other parties.

Governor Locke, through his creation of the Joint Natural Resources Cabinet has put in place another effort to develop consistent state policy and resolve differences among agencies. The State Salmon Strategy being developed by the Joint Cabinet is one example of the type of planning that can occur from such a coordinated process.

b. Planning Enabling Statutes

There are three separate planning enabling statutes. Each applies to a particular type of city or to counties. In large part, the three statutes are the same, but they do have variations. The planning enabling statutes provide the basic procedure and authority for counties and cities to engage in land use planning and adopt zoning and other development regulations. The planning enabling statutes date from the 1920s. Although they have undergone some changes, they are largely a result of thinking about planning from the early part of this century.

The GMA covers some of the ground covered by the planning enabling statutes, but it imposes some specific requirements on the nature of the planning and the goals to be considered. GMA jurisdictions must still rely on the planning enabling statutes for much of the process used to adopt their GMA comprehensive plans and development regulations.

c. Planning under the SMA and the GMA

The SMA was adopted by a vote of the people in the early 1970s. It establishes policies and goals for the shorelines of the state. It requires all cities and counties with covered shorelines to adopt a shoreline master program, which includes a plan and development regulations, to control development on the state’s shorelines. Ecology has authority to adopt guidelines for preparation of the shoreline master programs and must approve all programs and amendments. A shoreline substantial development permit is also required for certain kinds of development within the shorelines. Several elements of the shoreline program parallel requirements of the GMA. One significant difference is that the SMA establishes a set of state goals and provides for priority uses for the shorelines. A second significant difference is that the SMA gives Ecology authority to approve local government shoreline programs and allows an appeal of a shoreline permit to the Shoreline Hearings Board. This is a higher level of state involvement in shoreline decisions than is present in the GMA.

The GMA includes specific direction to all cities and counties to designate and protect critical areas. Some of these critical areas overlap with the areas governed by the SMA.

The 1995 Legislature initiated the first step towards bringing the GMA and the SMA together. It provided that the goals and policies of the SMA were also goals and policies of the GMA. It also directed that the Shoreline Master Program should be considered an element of GMA comprehensive plans. No direction was provided on how to accomplish this integration of the two statutes.

2. Discussion

a. State Agency Planning

The American Planning Association Growing Smart project has prepared a paper and suggested legislative guidance on state planning options. See, "Chapter 4 – State Planning", Growing Smart Legislative Guidebook, American Planning Association. The paper describes the following two paradigms for state planning:

Two general approaches in state planning have emerged and pose useful paradigms for drafting legislation …. One has been called the "civic model" and is derived from the heritage and assumptions of city planning. The second has been termed the "management model" and draws its orientation and techniques from the science of organization management. Under the civic model, the state would engage in a goal-setting process, develop an inventory of resources and an appraisal of existing conditions that affect the ability to achieve those goals, identify a set of alternative actions, and compile a list of implementing measures. The civic model would produce plans affecting land use and critical areas management or addressing functional topics like transportation, water, and economic development. The plans would have regulatory impact and/or affect the programming of infrastructure to support particular growth strategies.

While the purpose of the civic model is to identify public goals and large-scale policy choices that will shape the state’s future, the purpose of the management model is to ensure that state agencies operate in an efficient and coordinated manner consistent with the priorities of the chief executive. Under the management model, the governor, who is the state’s chief executive, implements policies and measures enacted by the state legislature and uses the planning system to exert administrative control over state agencies by establishing operational guidelines and directions for them.

Growing Smart Legislative Guidebook, pp. 4-9-11.

There are a number of approaches for coordinating state agency responsibilities. The following is a list adapted from the Growing Smart project of some options that provide mechanisms for coordinating agency duties:

State agency cabinet – A cabinet of state agencies is formalized and has authority to adopt rules. Many states, including Washington, have a Governor’s cabinet. In Washington, the cabinet does not have independent rule-making authority. A formalized cabinet brings together key departments whose activities have an impact on planning and land use, enabling a governor to speak with a single voice on critical growth and development issues in the state. A secondary purpose of the cabinet is to resolve disputes among state departments on the siting of state and regional public facilities.

State planning office – A state planning office is established in the office of the governor. Its primary activity would be to advise the governor on policy initiatives and coordinate activities of various state agencies. This is a function that is currently served in part by the Office of Financial Management.

State planning commission – Where a state does not have a strong tradition of statewide planning and requires an independent body to initiate and gain support for a new program, a state planning commission is a helpful mechanism. Moreover, because the commission will continue through different administrations, it can establish a presence and continuity for planning in the state.

b. Planning Enabling Statutes

Over the last several years, the statutory recognition for different classes of cities and counties has been changed, with many of the distinctions eliminated. In some areas, differences in authority between cities and counties no longer provides any particular value. The planning enabling statutes is one such area. In order to simplify procedures and eliminate confusion, providing one modernized planning enabling statue that is coordinated with the GMA would simplify the planning process for cities and counties.

c. GMA and SMA Planning

In addition to the substantive policies of the GMA and the SMA, and the different approach towards state and local relationships in the two statutes, there are also procedural differences that make it difficult for GMA jurisdictions to fully integrate their GMA and SMA plans and development regulations. Changes to the procedure for adopting and amendment Shoreline Master Programs could simplify the integration process without lessening the level of state oversight currently found in the SMA.

3. Implementation Options

a. Cabinet Coordinating Committee.

Under Governor Locke a Joint Natural Resources Cabinet has been formed by a memorandum of understanding to bring together the interests of state agencies with an impact on natural resource issues. As a voluntary agreement on the part of those agencies headed by a board or commission or by an elected official, the Joint Natural Resources Cabinet has been a valuable tool in the Washington’s response to the pending listing of salmon under the Endangered Species Act. A similar body, with a broader mandate to look not only at resource issues, but also incorporate education, social services, economic development, and environmental concerns would be a useful mechanism to bring the different narrow perspectives of different agencies into a comprehensive and balanced approach.

Legislation is not required to convene such a body. However, legislation does have advantages. It can address the fact that several important state agencies are headed either by separately elected officials or by a board or commission only indirectly accountable to the Governor.

b. Integrating Planning Enabling Statutes with the GMA

The process of combining the three separate planning enabling statutes together and integrating them with the GMA is largely a technical exercise. Each of the three planning enabling statutes does have some minor differences, giving more flexibility or less to the cities or counties to which it applies. The process of combining them should be geared towards providing the maximum flexibility for local governments. The process of integrating the GMA into the planning enabling statute will require some care to make sure that the GMA provisions only apply to those jurisdictions that are required or chose to plan under the GMA. There would be no substantive changes.

c. Changes to the Procedures for Adopting Shoreline Master Programs

The SMA establishes specific procedures governing the process for counties and cities to follow to adopt their shoreline master programs and for Ecology review of those programs. The SMA also specifies the content of the shoreline master program. The SMA could be amended to allow a GMA jurisdiction to make changes to its SMP following the procedures specified in the GMA. It could also specifically allow a local government to integrate the shoreline master program into its GMA plan, so long as the local government identifies the components of the GMA plan that meet SMA requirements. Ecology review and approval would still be required, but this could also be timed to fit within the comment cycle provided for in the GMA.

There may be some concern that the integration of the SMA plans into the GMA will make it more difficult for the public to verify that a county or city is complying with the SMA and its more stringent requirements. Local governments may also be concerned that Ecology may have greater authority over other aspects of the GMA plan. These are issues that can be addressed in the drafting.

1. Background

A person who wishes to build or modify a structure or modify land is generally required to obtain one or more permits. Permits are usually required from the city or county in which the property is located. In addition, depending on the nature of the activity and its impacts, permits may also be required from one or more state agencies, from regional bodies, or from a federal agency.

Another important part of the permitting process in Washington is the requirement that an analysis of the proposals environmental impacts be carried out. This is done under the State Environmental Policy Act (SEPA).

a. State Environmental Policy Act

SEPA was adopted in the early 1970s, in part to ensure that government officials were aware of the impacts of their decisions. In the twenty-five years since its adoption, SEPA has become a fundamental part of this state’s system for reviewing the environmental impacts of nearly every type of governmental action, from the adoption of city and county ordinances, to the decision to build a sewage treatment plant, to the approval of an application to construct a building.

In the intervening twenty-five years, a number of laws addressing specific environmental issues have also been adopted, including issues such as the protection of the shorelines, air quality, hazardous waste control, solid waste control, and water quality. Some of these laws have resulted from federal requirements, others have been locally driven. In the early 1980s, the Legislature initiated a comprehensive review of SEPA that led to legislative changes adopted in 1983.

In 1990, the first stage of the Growth Management Act (GMA) was adopted, followed by additional provisions in 1991. As cities and counties have begun to implement the GMA, there have been efforts to evaluate the extent to which the different statutes have resulted in duplication of effort. In 1993 Governor Lowry appointed the Governor’s Task Force on Regulatory Reform, in part to address the project review process.

The Task Force proposed legislation that was ultimately adopted as ESHB 1724 by the 1995 Legislature. Besides creating the Land Use Study Commission, that measure also attempted to integrate the requirements of SEPA and GMA.

SEPA requires a governmental entity, whether state or local, to analyze the environmental impacts of its major actions. The same basic rules apply whether the proposed action is legislative in nature, as in adopting an ordinance, or responding to a permit application. The Department of Ecology has adopted rules to implement SEPA.

One of the basic requirements of SEPA is the preparation of an Environmental Impact Statement (EIS) if the government agency determines that a proposed major action will have probable, significant adverse environmental impacts. The agency makes this determination through the threshold determination process. If the probable impacts are determined to be significant, an EIS must be prepared.

An agency’s decisions under SEPA are subject to review both administratively, if allowed by the agency, and judicially.

SEPA and the SEPA rules do provide mechanisms to incorporate by reference relevant environmental documents.

ESHB 1724 included provisions that provided that certain land use decisions made in the GMA comprehensive plans and development regulations could not be revisited during project review. In addition, a city or county planning under the GMA may determine that SEPA’s requirements for the analysis of and mitigation for the specific adverse environmental impacts of a project action have been adequately addressed in the jurisdiction’s comprehensive plan and development regulations.

GMA also requires cities and counties to adopt critical areas ordinances to designate and protect five specific types of critical area. The ordinances must be based on the best available science. SEPA applies to the adoption of a critical areas ordinance. As with other local government GMA decisions, they are not approved by the state, although they are subject to review and comment by state agencies. A critical areas ordinance may be challenged before one of the Growth Management Hearings Boards.

In addition to critical areas ordinances, a variety of other local and state laws and rules may also apply to a particular project.

b. Local Government Permit Processes

ESHB 1724 established a set of standards for local government permit processes. Although prior law had contained some restrictions on the number and type of local hearings that could be held on a project, ESHB 1724 established strict requirements. In addition, it imposed on a three year trial basis, since extended for two more years, a requirement that permit decisions be made within 120 days after an application has been submitted. The 120 day period excludes a number of events, including the time required to prepare an EIS.

ESHB 1724 did not impose any specific requirements on the procedure for conducting local hearings. As with prior law, local governments have discretion on how to structure those hearings, within the basic requirements of due process.

c. State and local permit coordination and integration

ESHB 1724 included provisions creating the Permit Assistance Center in Ecology, as well as adopting the Permit Coordination Procedures Act. In the early 1970s, the Environmental Coordination Procedures Act was enacted by legislature. After some initial interest, that law fell into disuse and was repealed by ESHB 1724. The replacement statute provides for a combination of information sharing and permit coordination. The later takes place only at the request of an applicant. The process includes the appointment of a project facilitator to work toward ensuring that timelines agreed to by the parties are met. The act sunsets in 1999.

The process provides for the coordination of state permits. A local government may be invited to participate in the process, but may not be required to do so.

d. Essential Public Facilities

The traditional power of local government to control land uses within their jurisdiction is in the Washington Constitution, Article XI, Section 11. A county, city, town, or township may "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Pre-GMA zoning laws further addressed local government zoning powers. No specific legislative guidance was given regarding the siting of most essential public facilities and disputes have been decided on a case by case basis.

State law does provide for the siting of certain types of large facilities. The Energy Facilities Siting Evaluation Council (EFSEC), originally established in 1970, has authority to site large energy facilities, such as nuclear power plants, oil pipelines, and some electrical transmission facilities[7]. EFSEC preempts all state and local permit processes for those facilities over which it has authority. The siting of hazardous waste management facilities is also regulated by state law.[8] The state has preempted the field for siting some types of hazardous waste management facilities, but does provide a mechanism for a community and a facility proponent to reach an agreement that becomes a part of the state’s regulations.

Land use disputes over the siting essential public facilities are not new. Prior to enactment of the GMA, the Washington Supreme Court found that where the legislature had clearly indicated that a state facility was to be sited in a particular location, local zoning controls inconsistent with the siting of that facility were inapplicable.[9] The court declined in Snohomish County to adopt a "blanket rule of immunity exempting all state projects from municipal regulations unless the Legislature specifically provides otherwise."[10]

In Everett v. Snohomish County, 112 Wn. 2d 433 (1989), the court was presented with the issue of whether the activities of a city on land not within its corporate limits were immune from the zoning regulations of the host government, in this case a county. The court found that legislative intent was the determining factor on whether the city was immune from the county’s zoning ordinance.[11] In this case it determined that there was no legislative intent to so exempt the city. The court also found that the County had provided other locations for conducting the activity – the disposal of solid waste from a sewage treatment plant – and therefore had not engaged in exclusionary zoning.[12] note that In passing, the court noted that the most vexing of problems in land use involved siting of unpopular but essential facilities, and stated that while everyone contributes to a problem, no one wanted to be part of the solution.[13]

The GMA defines essential public facilities to include

those facilities that are typically difficult to site, such as airports, state education facilities, and state or regional transportation facilities, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, and group homes.

RCW 36.70A.020. These facilities, while needed by society, often have real or perceived negative impacts on surrounding communities that may make them undesirable neighbors, and increase the complexity and difficulty of siting new facilities, or expanding existing facilities. The GMA requires all local comprehensive plans to include a process for identifying and siting essential public facilities, and prohibits local comprehensive plans or development regulations from precluding the siting of essential public facilities. It requires the state Office of Financial Management to maintain a list of essential state public facilities. State agencies must comply with local comprehensive plans and development regulations (RCW 36.70A.103).

In addition to these siting provisions, the GMA requires county-wide planning policies to include policies for siting public capital facilities of a county-wide or state-wide nature. RCW 36.70A.210.

The Department of Community, Trade and Economic Development (DCTED) adopted procedural criteria to guide local governments in the implementation of GMA, but these procedural criteria are not mandatory nor do they address all of the issues.

2. Discussion

a. SEPA

Although SEPA and its implementing rules distinguish between environmental review for projects from that required of legislative (non-project) actions, some of the requirements imposed on non-project environmental review are not necessarily useful. For example, the alternatives analysis required for an EIS may not be useful in cases where an agency is required to adopt a comprehensive plan. Discussing the alternative of not adopting a comprehensive plan is not an option that the local government can realistically consider.

A significant percentage of the GMA plans and development regulations that have been adopted by cities and counties have not undergone thorough environmental review. In some cases, cities and counties have determined that the plans or regulations do not have significant impacts, and thus did not prepare the more detailed analysis provided for in an EIS. This may be an appropriate decision for some types of plans or regulations. In others, the failure to conduct thorough environmental review prevents the plan or regulation from providing guidance for environmental review of project decisions.

A jurisdiction that has not conducted detailed review will not be readily able to take advantage of the provisions of ESHB 1724, that allow, and in some instances require, the jurisdiction to rely on its prior policy choices.

b. Environmental Review

i. Non-project vs. Project Environmental Review

Although SEPA and its implementing rules distinguish between environmental review for projects from that required of legislative (non-project) actions, some of the requirements imposed on non-project environmental review are not necessarily useful. For example, the alternatives analysis required for an EIS may not be useful in cases where an agency is required to adopt a comprehensive plan. Discussing the alternative of not adopting a comprehensive plan is not an option that the local government can realistically consider.

A significant percentage of the GMA plans and development regulations that have been adopted by cities and counties have not undergone thorough environmental review. In some cases, cities and counties have determined that the plans or regulations do not have significant impacts, and thus did not prepare the more detailed analysis provided for in an EIS. This may be an appropriate decision for some types of plans or regulations. In others, the failure to conduct thorough environmental review prevents the plan or regulation from providing guidance for environmental review of project decisions.

A jurisdiction that has not conducted detailed review will not be readily able to take advantage of the provisions of ESHB 1724, that allow, and in some instances require, the jurisdiction to rely on its prior policy choices.

ii. Threshold determinations and Environmental Impact Statements

SEPA uses the threshold determination as a means to determine whether additional detailed environmental review is necessary. A threshold determination that a proposal will have significant adverse environmental impacts leads to the preparation of an EIS. This can be a lengthy and expensive process. As a result, a project proponent may attempt to mitigate the impacts of a project, either before it is proposed, or during the threshold determination process, in order to avoid the need to prepare an EIS.

iii. Reliance on GMA Policy Decisions

Although ESHB 1724 provides a process by which a GMA jurisdiction, during project review, may rely on its plans and regulations to have adequately addressed environmental impacts, the process is sufficiently uncertain that it has not been used often.

One reason suggested for this failure is that the cities and counties have been provided little guidance to assist them in conducting the environmental analysis on a comprehensive plan. The SEPA rules do not provide a useful procedure for reliance on previous studies. Because of the uncertainties involved, in addition to the expense, few cities or counties have undertaken the effort.

iv. Multiple Regulatory Requirements

In addition to requirements under GMA to designate and protect critical areas, the state and cities and counties implement a number of other state and federal requirements designed to protect the environment. These include provisions to manage and protect the shorelines, regulate stormwater, and protect streams and wetlands. In some instances, although not always, the requirements have been adopted after thorough environmental review.

During project review, a project proponent may be required to study the impacts of the project covered by existing regulations, even though the regulations may have been designed to address those impacts and provide for mitigation.

3. State and local permit Coordination and integration

The Coordinated Permit Process is underutilized despite its significant potential. First, applicants are often not familiar with the process, and are unaware of its value in managing multiple permits, time schedules, hearings, and appeals. Second, although many of the permits for projects are the responsibility of local agencies, local agencies are not required to participate in the process.

The major value of the Coordinated Permit Process is the "internal coordinator" feature. The coordinator serves as the main point of contact for the permit applicant and manages procedural aspects of the process. The coordinator assures that the applicant has sufficient information to apply for multiple permits, coordinates the review of those permits by the participating permit agencies, ensures that timely decisions are made, and assists in resolving any conflict or inconsistency among project permit requirements and conditions.

One downside of the Coordinated Permit Process may be its formality. The formal commitment to timelines can cause reluctance on the part of both the applicant and the agencies to sign the agreement until they are sure they can meet the agreed to commitments. While this may not prevent the permitting processes from moving forward, the negotiation can occupy hundreds of hours of governmental and private sector staff time.

The Coordinated Permit Process is approximately three years old. The process has led to cooperative review of four projects, and one has completed permitting. With more experience, the process may be suitable for mandatory application to certain classes of high impact, multi-jurisdictional projects.

4. Options for Implementation

a. SEPA and Project Review

The existing SEPA process for environmental review of non-project actions -- actions such as the enactment and amendment of comprehensive plans and development regulations -- is not always conducive to good environmental review; at times, the existing process can discourage or thwart good environmental review. This is because the only environmental document prepared for most legislative enactments is a SEPA checklist, and this checklist usually is prepared after the proposed legislation has been written. The county or city prepares and reviews the checklist to determine whether the adverse environmental impacts disclosed in it are "significant" within the meaning of SEPA, but there is no useful standard of "significance" that leads to predictable and consistent decision-making from one jurisdiction to the next, and counties and cities have an incentive not to find impacts "significant" because when they do they must prepare an expensive and time-consuming EIS. When impacts are determined not to be "significant" in the SEPA sense, no further environmental review beyond the checklist is performed, but even "non-significant" plans or regulations often have environmental consequences and entail environmental trade-offs that ought to be acknowledged and understood by the policy-makers considering their adoption and the citizens whose conduct will be regulated.

Many cities and counties issued Determinations of Nonsignificance before enacting their GMA-required plans and regulations. These negative threshold determinations may well have been appropriate under existing law, especially in jurisdictions that were simply amending their existing plans and regulations. The quality of the plans and regulations would have been improved, however, if some environmental review had accompanied the development, drafting, and enactment of these plans or regulations. SEPA should encourage environmental review that is tailored in scope to the potential impacts of the plan or regulation being enacted, and such environmental review should occur while the plan or regulation is being developed, not performed as an after-the-fact justification for decisions that already have been made.

The SEPA threshold determination process divides project actions into the few that require Environmental Impact Statements and the many that do not. The great majority of projects receive DNSs or MDNSs. The amount and quality of the environmental review that these projects receive varies from project to project and jurisdiction to jurisdiction because SEPA does not provide a meaningful standard for determining significance or a clear and consistent process for evaluating impacts that are not deemed significant. In addition, SEPA does not provide clear direction on the use a city or county should make of existing environmental documents that have been prepared for other projects or for non-project actions such as the adoption of a sub-area plan. The SEPA process ought to focus on whether the impacts of a project have been identified and studied to the extent appropriate given the nature and extent of those impacts. The present threshold determination process can distract from that determination and lead to confusion, duplication of effort, procedural gamesmanship, and unnecessary delay.

b. SEPA and Non-Project Review

The legislative decisions embodied in plans and regulations have environmental consequences, and entail environmental trade-offs, that ought to be identified and considered by the policy-makers who adopt such plans and regulations. Even when an EIS is prepared before the adoption of a plan or regulation, the current SEPA rules provide little guidance on the content of such a non-project EIS. The quality of environmental review of non-project actions, including the analysis of alternatives, should be improved and made more consistent, so that legislative bodies and citizens alike understand the environmental trade-offs inherent in legislative choices and so that the environmental consequences of such choices do not need to be studied again at the project level. This could be done by providing specific guidance in the SEPA rules on the issues that should be considered in the analysis of the impacts of a comprehensive plan. Another, and not exclusive option, would be to either provide as an option or a requirement that the comprehensive plan under GMA include an environmental element that specifically addresses the issues required under SEPA.

c. Permit Coordination and Consolidation

i. Reauthorize the Environmental Permit Assistance Act — Chapter 90.60 RCW.

The Permit Assistance Center and its powers and duties, including the Coordinated Permit Process, will be terminated June 30, 1999, as provided in RCW 43.131.388. The Permit Assistance Center and the Coordinated Permit Process should be extended and expanded to encourage local agency participation. In addition there should be specific, ongoing evaluation of whether to create a mandatory coordinated process for state and local agencies, and applicants, for classes of high impact projects. This ongoing evaluation would determine an impact threshold for mandatory inclusion in the Process, as well as appropriate exemptions.

ii. Additional Changes for Consideration

A number of additional improvements can be made to the permit assistance center and the coordinated permit process. These include:

d. Essential Public Facility Siting

A specialized process for siting essential pubic facilities should be considered. The process would provide for different processes depending on whether it is a state-wide essential public facility or a local or regional essential public facility. A state-wide facility might include a state owned and operated prison or detention facility, a new college or university, or hospital. Other unique types of facilities, such as energy facilities currently sited through EFSEC and hazardous waste disposal facilities, might also be considered state-wide facilities. All other essential public facilities would be considered as local or regional facilities. The state-wide process would be managed by a board or council comprised of representatives from state agencies and local governments. The board could either be specifically established to address essential public facilities or could be an adjunct to another body.

Local or regional facilities would initially be addressed at the local government level. DCTED could be given authority to adopt minimum standards for the process, including timeframes for making a decision and procedures to coordinate with adjoining local governments and state agencies. If the local government process does not reach a decision within the timeframes established or if the applicant or other participants in the process believe that conditions imposed on the proposal are intended to preclude siting rather than address legitimate project impacts, a negotiated siting process may be requested.

The negotiation process would include representatives from each local government in which facility is located or which would be directly impacted by operation of the facility, the applicant, and other parties whose participation is necessary to resolve the issues involved with the proposal. The facility siting committee would negotiate a resolution of issues with assistance from office of dispute resolution.

If an agreement is reached, each local legislative body represented on the committee would have to ratify the agreement. The local legislative body may only accept or reject the agreement. It may not modify the agreement. If approved, the agreement is binding on all parties.

If an agreement cannot be reached, the state oversight body would be presented with the proposals from each party. The oversight body would select the proposal it determines is most consistent with state policy

As a part of any siting process, issues of impact compensation could be included in the negotiation process. Impact compensation could include:

1. Background

Decisions implementing state land use and environmental laws are subject to a variety of review mechanisms. Local government and state agency land use and environmental decisions are subject to judicial review. Local government land use decisions are appealable under the Land Use Petition Act. This legislation was adopted in 1995 and combined the different appeal procedures applicable to permits into a single statute and eliminated common law procedures as the chief review mechanism.[14] State agency actions are generally subject to judicial review under the Administrative Procedures Act, RCW Chapter 34.05.

Under some circumstances, prior to judicial review, a quasi-judicial state board may have review authority over the actions of a state agency or a local government. There are five separate quasi-judicial boards with authority to review land use and environmental statutes.[15] Decisions of the quasi-judicial appeals boards may be appealed to superior court, or in some cases, directly to the Court of Appeals.

Particularly with respect to the appeal of a local government decision on a project permit application, there is the potential that two different appeal bodies will have jurisdiction over different aspects of the project. The appeal of a project constructed within the shorelines that requires a shoreline substantial development could potentially be handled both by the Shoreline Hearings Board and by the Superior Court. A SHB decision may be appealed to superior court. Depending on scheduling, the parties may be required to present similar testimony and evidence in both forums.

There are also differences in the appeal procedures depending on the forum. Superior court review is usually based on the record created by the local government or state agency. The superior court does not generally engage in fact-finding or conduct evidentiary hearings. Under the SMA, the appeal of a shoreline substantial permit is heard de novo by the SHB. This means the SHB conducts fact-finding hearings and bases its decision on the record it creates rather than the record before the local government.

Another difference among the different boards is the types of actions they have jurisdiction over. The Growth Management Hearings Boards have jurisdiction exclusively over legislative decisions of local governments and state agencies. They do not have jurisdiction over individual project permit decisions. The Shoreline Hearings Board has authority over both legislative and permit decisions, since in addition to shoreline permits, it hears appeals of shoreline master programs for non-GMA jurisdictions and of Ecology’s rules implementing the SMA.

The Pollution Control Hearings Board’s jurisdiction is largely limited to review of Ecology actions, although it also has authority to hear appeals of penalties imposed by the regional air pollution control authorities.

Each of the boards is required to have members that are representative of the different political parties and have expertise in the subject matter. Board members are not required to be attorneys, although each board is required to have at least one attorney member.

The boards generally do not have authority to review constitutional issues.

In 1997 the Legislature changed some of the procedural standards that apply to Growth Management Hearing Board review of city and county GMA decisions. The changes were intended in part to give local government decisions greater weight on an appeal before the boards.

2. Discussion

The use of quasi-judicial boards to review local government decisions has become a controversial topic since the adoption of the GMA. There have been a number of legislative efforts in the last several years to change the GMA appeal process or eliminate the Growth Management Hearings Boards altogether. This legislation has either failed to pass the legislature or it has been vetoed by the Governor.

The most common argument against the quasi-judicial boards is that they place appointed state officials in the position of reviewing, and in some cases overturning, decisions of locally elected officials. This is thought to undermine one of the principle elements of the GMA, which is the "local control" it gives to local governments. A related argument against the boards is that they are substituting their own judgement about what is good planning and an appropriate vision for a particular community rather than accepting the judgement of the local legislative body. An appeal to court is felt to be preferable because the judges are directly accountable to the public through the election process.

The reasons supporting the Growth Management Hearing Boards are often expressed in terms of their value in assuring that local decisions are consistent with the statewide interests expressed by the Legislature in the GMA. Although a judicial appeal might also be used to test consistency, the formality of the judicial process is thought to be an impediment to participation by members of the public without easy access to legal representation. In addition, there are concerns that superior court judges may not always have the needed expertise to review complex environmental and land use issues. There is also a belief that superior courts do not provide the statewide perspective that is believed to be important nor the necessary political distance from the local governments that may control their budgets.

An advantage that proponents of quasi-judicial review see is that it brings in the perspectives of people who are not lawyers, but have other relevant knowledge and expertise. A judicial alternative would not provide this opportunity.

Proposals to change the procedure for review of shoreline substantial development permits have also been controversial. One expressed concern is that local government hearing procedures are not always conducted according to procedures designed to ensure that interested parties receive notice, that relevant evidence is considered properly, and that decisions are based on the evidence presented. The SHB de novo review process is felt to be a necessary procedure to protect a unique resource of state-wide significance.

3. Options for Further Discussion

The Commission has discussed a wide array of options for addressing the concerns that have been expressed about the current appeal process. There is less agreement about the need for and scope of changes that should be considered than for any other issue under consideration as part of a consolidated code. The following options are presented to encourage discussion of the need for and type of change that should be considered.

a. Status Quo

Retain the current process with appeals going to one of the existing hearings boards or superior court, depending on the nature of the issue. One variation would provide that all appeals from hearings board decisions would be heard by the Court of Appeals rather than the superior court. This is an option under current law that is not often taken advantage of.

b. Unified Hearings Board

Combine the existing hearings boards into a single hearings board. An appeal of the hearings board decision would be filed in the Court of Appeals, bypassing the superior court. One variation would provide for regional hearings boards, similar to the three Growth Management Hearings Boards. Another variation would be to have one board, but with members appointed from around the state and sitting as regional panels.

Questions to consider: