Memorandum

Date: January 8, 1997

At meetings on December 4 and December 10, the Commission took public comments on and discussed the Chair’s Draft Legislative Package, dated November 20. At the December 10 meeting, the Commission came to a number of tentative conclusions about provisions to include in draft legislation. In some key areas, however, there were unresolved issues.

The Steering Committee met several times over the last month in an effort to develop a proposal that resolves those issues. The attached proposal incorporates the tentative conclusions reached by the Commission on December 10. It also suggests additional changes to the Chair's draft that the Steering Committee believes may resolve the remaining issues.

You will note a change in the format from the previous draft. This draft removes the references to the issue papers found in prior versions. It now has section numbers and is generally in RCW section order.

The following summary describes the provisions of this draft and how it differs from the Chair’s Draft Legislative Package.

Section 1. Definitions.

The definition of "buildable lands" has been left blank, pending the recommendation of the Buildable Lands Committee. (See Section 19.)

A new definition of "rural character" has been included. This definition is linked to the intent statement in Section 2 and the rural element in Section 3.

A definition of "rural governmental services" has been added to distinguish these types of services from those provided in urban areas. A similar definition had been considered earlier but was not included in the last draft. Sewer and stormwater services are specifically excluded from the definition, except when necessary for public health and safety.

The definition of "urban growth" has been modified. The prior draft had struck the words "to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources." The deletion of these words had been proposed because of a concern that even rural uses could be seen as being "incompatible" with natural resource uses. A number of commentators expressed the concern that this phrase was a crucial component in distinguishing between urban and rural. This draft reinstates the phrase, but also adds a provision recognizing rural uses and designated natural resource lands.

Sections 2 and 3. Rural Element

Section 2 adds an intent statement addressing the values of rural areas and the objectives a county should consider when developing its rural element.

The rural element has been revised in light of the oral and written comments. The proposal breaks down into four basic components. First, the general framework of the rural element is established. There is a recognition of regional differences, but counties must to document how their decisions comply with the GMA. The framework also makes clear that rural development cannot generally require urban services and that non-residential uses should generally be designed to serve the rural population.

The second component makes clear that a county may provide for rural development and for a variety of uses and densities. It also provides guidance on how a county may try to achieve that variety of densities.

The third component provides that the rural element should include measures to protect rural character and describes the objectives of those measures. It allows a county to establish a rural character reflective of regional differences, while still recognizing the need to fit within the GMA framework.

The fourth component of the rural element is a recognition that limited areas of more intense development may be permitted with in the rural area under some circumstances. These include shoreline development consistent with the county's shoreline master program, infill of existing settlements, infill or development of small-scale recreational or tourist facilities, and expansion of existing isolated non-residential uses.

GMA Flex

The sections concerning GMA Flex have been deleted from this draft. The concept of encouraging innovative techniques and city-county cooperation is desirable. However, there was not time to refine the proposal to respond to legitimate concerns raised in the comment period. The Steering Committee recommends that this concept be addressed in the Commission's report and that it be explored as an alternative to legislation that would permit a county to opt-out of GMA.

Section 4. Transfer of Development Rights Programs

This is a new section. The Commission heard suggestions that the existing provisions concerning use of transfer of development rights (TDR) to protect agricultural and open space land in a UGA should be modified to cover situations where an entity other than the local government, such as a land trust, acquires development rights. The Commission agreed this was a good idea. This section would make that change.

Section 5. Technical Assistance to Community Groups

There are two changes to these provisions. The first specifically allows the Department to provide technical assistance for "evaluation and refinement" of comprehensive plans and development regulations. The second allows the Department to provide technical assistance to community and neighborhood organizations to facilitate the "adoption and implementation" of comprehensive plans. This latter provision was modified to remove the possibility that technical assistance might be used to promote litigation.

Section 6. Public Notice

In the prior draft, these provisions were included as an amendment to RCW 36.70A.140. Here they are set out as a new section to remove some concerns about their application. There have also been some modifications to address concerns raised in public comments. Subsection (1) provides some examples of "reasonable notice." These are modeled on the SEPA notice provisions. Subsection (2) is designed to address the circumstance where a local legislative body takes up an amendment to a proposed plan or regulation for which an opportunity for public comment has not provided. There are a number of exceptions to the general rule that public comment must be taken before the provision can be acted on.

Section 7. Ex parte communications.

This is a new provision. The Commission received suggestions that clear limits on ex parte communication while cases are before the board were necessary. Although existing law already makes the Administrative Procedure Act applicable to proceedings before the Boards, and the APA governs ex parte communications, this amendment will remove any question about the issue.

Section 8. Official Notice

There has been one change to this provision. The board may take official notice of the adopted ordinances and resolutions of a city or county. As with Section 7, this provision does not really change current law, since the Boards are already subject to the APA

 Section 9(1). Limitations on matters which may be reviewed

 This is a new provision. It would limit the Boards to deciding those issues placed before the Boards in the petition and would not permit the Boards to issue advisory opinions.

 Section 9(3) and section 10. Parties agree to refer case to Superior Court

 These two provisions are new, but reflect a tentative conclusion reached by the Commission at an earlier meeting. Section 10 is the operative section. It allows the superior court to directly review a petition when the petition is certified by the board. The board must certify direct review when all the parties agree. The agreement between the parties must be filed with the board within fourteen days after the petition has been filed. The superior court reviews the petition under the same standards as apply to the boards.

Section 11. Time period for issuing decision — Compliance Hearings

There are three separate subjects addressed in this section.

The first concerns the time for issuing a decision, which is currently set at 180 days. The prior draft allowed the board to extend this period one time for up to 60 days upon agreement of all parties. The board was required to determine that the parties were engaged in good faith negotiations. This draft allows the board to extend the period for any number of 90 day periods. The parties must be engaged in negotiations, but the board is not required to make a finding of good faith negotiations as in the prior draft. The board may also extend the time period if all the parties do not agree, as long as the petitioner and respondent concur.

The second issue is the compliance process. The earlier draft had eliminated the requirement for a compliance hearing within 180 days. This draft restores current law, but allows the board to set a longer period for compliance in cases of unusual scope or complexity. It retains a provision from the earlier draft allowing the board to require periodic reports on progress towards compliance.

The third issue is the authority of the boards to invalidate comprehensive plans and development regulations. These provisions have been moved from this section to section 12 and will be discussed there.

Section 12. Invalidity

Although this is a new section, much of it merely repeats existing law that has been struck by section 11. It does incorporates many of the provisions of the prior draft relating to invalidity, but has made some changes to clarify the effect of the changes and to remove unintended consequences.

Provisions that would have allowed a board to determine what "types of permits or project actions" should be affected by an order of invalidity have been deleted. The board’s authority on review of an order has been expanded to allow it to "modify or rescind" the prior order. There list of activities that are not affected by an order of invalidity has been modified to distinguish between applications vested before an order and those after.

The provision providing that the board could not address comprehensive plans or development regulations adopted under another provision of law has been replaced. There were concerns that the prior proposal would allow a jurisdiction to have "two sets of books." The new provision allows a local government to adopt interim controls and seek a board determination of whether those controls "substantially interfere" with the GMA. This is intended to address at least part of the concern that led to proposals to prohibit the Boards from invalidating pre-GMA ordinances. One concern leading to that suggestion was that a local government might have no ordinances to regulate development, leading to considerable uncertainty about what law applied.

The provision allowing the use of the motion for reconsideration to modify or rescind an order has been changed. Instead of using this procedure, the local government is allowed to file a motion to clarify, modify, or rescind the order.

Section 13. Technical correction.

No change.

Sections 14 and 15. Burden of persuasion — Standard of Review

Section 14 is new. It is an intent section that makes clear the legislative intent of the change to the standard of review: that there be greater deference given to local government decisions.

Section 15(2) has been modified from the earlier draft to place the burden of persuasion on the local government in those cases where an order of invalidity has been issued. In all other circumstances, the burden rests on the petitioner.

The provisions relating to the standard of review have not been changed, except to refer to the "goals" rather than the "policies" of GMA.

Section 16. Compliance Hearing

There are no substantive changes to this section. There are some modifications to conform to the changes in Section 11 relating to the time period for compliance.

Section 17. Motion for review based on changed statute

This section allows a local government subject to an order of invalidity to ask a board to review its order in light of the changes to the invalidity provisions. There have been no changes from the prior draft.

Section 18. Agricultural Zoning.

Additional descriptive detail for these zoning techniques has been provided.

Section 19. Buildable Lands.

[Reserved] The Land Use Study Commission appointed a committee to work on revised language and report back to the Commission at its January 14 meeting.

Section 20. Planning and Environmental Review Fund

This section is new. It implements the recommendations of the Commission's Finance Advisory Committee that grants be coordinated among agencies and that increased emphasis on regulatory reform measures should be included as part of the grant process.

Sections 21 and 22. Open Space and Agriculture Tax Assessments.

No changes.

Sections 23 - 28. Annexations.

The prior draft eliminated boundary review board (BRB) review of certain types of annexations. These provisions restore current law and continue to allow BRB review as provided in current law. Section 28 adds to the factors to be considered by a BRB when it reviews an annexation proposal GMA plans and regulations and applicable interlocal agreements. The prior draft's expansion of the types of annexations that may be undertaken without a petition are retained.

Section 29. Multi-Family Housing

No change from the prior draft.

Section 30. Infrastructure

This is a new section to this draft. It directs DCTED to establish a process to review and determine the need for infrastructure financing.

Section 31. Prospective effect

This is a new section. It provides that the changes to the GMA planning requirements are prospective in effect and do not apply to actions taken or decisions made prior to the effective date of the bill.