906 Columbia Street SW

P.O. Box 48300

Olympia, Washington 98504-8300

415 118^th Avenue SE

Bellevue, Washington 98005

September 1998

The Land Use Study Commission (Commission) was established in 1995 by ESHB 1724. One of the tasks assigned to the Commission was 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. The question being asked is, has Washington’s law of vesting allowed projects to vest under regulations that were inconsistent with the goals of the Growth Management Act (GMA)?

The choice of jurisdictions and permit types to be included in the study was narrowed to focus on those appeals challenging the density or intensity of land uses. These appeals presented issues that were the most likely to raise questions about consistency with the goals and purposes of GMA.

Of the ten jurisdictions selected, one, Whatcom County, did not perceive any permit application rushes that could be associated with planning dates; four, King County, Kittitas County, Pacific County, and Skagit County, experienced only slight rises in permit application numbers that correlate with specific planning dates; two, Clark County and Jefferson County, experienced marked rises in application numbers prior to specific adoption dates, some of which prompted development moratoria; and two, Chelan County and Pierce County, were unable to provide specific permit application numbers within the time constraints of the study.

There were two major issues which prevented the complete collection of data.

Timing. Tight time constraints of the study prevented the examination of individual permit files to determine project compliance with the goals of GMA. Additional complications arose because several counties are in the midst of planning under GMA. In addition to several cases that are pending before the Boards, some counties (e.g. Skagit and Jefferson) were adopting revised comprehensive plans within the time frame of this study.

Databases. Few, if any, jurisdictions have compiled databases of permit information with the intent of tracking the impacts of vested permits. Many of the issues examined by this study require the ability to examine permit data using geographical parameters, which was not possible in most of the jurisdictions.

Despite the shortage of hard data, several general observations were made during the course of the study. First, none of the jurisdictions participating in the study complained of a widespread vesting problem. These jurisdictions did not perceive it to be an issue and were not dedicating resources to address it. Second, vesting problems that did arise appear to have localized impacts that were magnified by local land use issues. These cases often formed the basis for litigation and thereby received elevated attention. To the local residents and participants in the land use debate, these cases were very important, but from a programmatic perspective of the jurisdiction, they were the exception, not the norm. In conclusion, vesting during the period of a GMA appeal is a localized issue involving relatively few properties and does not present a widespread undermining of GMA.

TABLE OF CONTENTS

1.0 INTRODUCTION

2.0 PURPOSE OF THE STUDY

3.0 METHODOLOGY

3.1 DATA FROM CTED

3.2 SELECTING JURISDICTIONS FOR FURTHER STUDY

3.3 DATA GATHERING FROM THE JURISDICTIONS

4.0 RESULTS OF DATA GATHERING

5.0 SUMMARY OF APPEAL DATA

6.0 SELECTED JURISDICTIONAL DATA

6.1 ASSUMPTIONS

6.2 CHELAN COUNTY

6.2.1 Background

6.2.2 Permit Data

6.3 CLARK COUNTY

6.3.1 Background

6.3.2 Permit Data

6.4 JEFFERSON COUNTY

6.4.1 Background

6.4.2 Permit Data

6.4.3 Permits Vested During Periods of Non-Compliance or Invalidity

6.5 KING COUNTY

6.5.1 Background

6.5.2 Permit Data

6.5.3 Permits Vested During Periods of Non-Compliance or Invalidity

6.6 KITSAP COUNTY

6.6.1 Background

6.6.2 Permit Data

6.6.3 Permits Vested During Periods of Non-Compliance or Invalidity

6.7 KITTITAS COUNTY

6.7.1 Background

6.7.2 Permit Data

6.8 PACIFIC COUNTY

6.8.1 Background

6.8.2 Permit Data

6.8.3 Permits Vested During Periods of Non-Compliance or Invalidity

6.9 PIERCE COUNTY

6.9.1 Background

6.9.2 Permit Data

6.10 SKAGIT COUNTY

6.10.1 Background

6.10.2 Permit Data

6.11 WHATCOM COUNTY

6.11.1 Background

6.11.2 Permit Data

7.0 SUMMARY/CONCLUSIONS

7.1 DATA AVAILABILITY

7.2 SUGGESTIONS FOR FURTHER STUDY

7.3 GENERAL OBSERVATIONS

Table 1: Summary of Data Provided By Counties

Table 2: Activities of the Growth Management Hearings Boards

Table 3: Clark County Permits Vested During Periods of Non-Compliance or Invalidity

Table 4: Kittitas County Permits Vested on Resource Lands During Periods of Non-Compliance or Invalidity

Table 5: Total Permit Volumes - Pacific County

Table 6: Skagit County Permits Vested During Periods of Non-Compliance or Invalidity

Figure 1: Clark County Total Permits

Figure 2: Jefferson County Subdivision Applications

Figure 3: King County Permit Applications, By Type

Figure 4: Kitsap County Short Plats

Figure 5: Whatcom County Total Permits

Appendix 1: Cases Appealed to GMHB Boards by Jurisdiction for Comprehensive Plans or Development Regulations

Appendix 2: Growth Management Hearings Boards Data Summary

Appendix 3: County Planning Activities

Appendix 4: Introductory Letter - Study of the Impact of Vesting During GMHB Appeals

Appendix 5: Summary of Growth Management Hearings Board Decisions Regarding Invalidity

Appendix 6: May 20, 1998, Correspondence, Chelan County Prosecuting Attorney

Appendix 7: May 29, 1998, Correspondence, Pierce County Department of Planning and Land Services

In 1995, the state legislature passed amendments to the Growth Management Act (GMA) and other laws directing local jurisdictions to streamline and integrate land use and environmental permitting procedures. ESHB 1724 also established the Land Use Study Commission (Commission), with the overall mission to consolidate and integrate land use and environmental laws into a single statute. A number of additional tasks were assigned to the Commission, one of which was to monitor instances state-wide of the vesting of development project permit applications during the period that an appeal is pending before a growth management hearings board (Board). See RCW 90.61.040(4). David Evans and Associates, Inc. (DEA) was chosen to assist the Commission in gathering permit vesting data for the Commission’s use in monitoring the impacts of vesting.

Petitions to the Boards as to whether or not an adopted comprehensive plan or development regulation complies with the goals and requirements of GMA must be filed within sixty days of publication. A Board is required to issue its final order within 180 days of the receipt of the petition for review. A finding of compliance and an order of remand does not affect the validity of the comprehensive plan or development regulation during the period of remand, unless the Board’s final order includes a determination of invalidity and specifies which part of the plan or regulation are invalid. Determinations of invalidity are prospective in effect and do not affect permit applications that vested prior to the Board’s order. Development applications received after a determination of invalidity are subject to the local ordinance or resolution that is enacted in response to the order of remand that is determined by the Board to comply with the requirements of GMA. If the ordinance adopting a plan or regulation includes a savings clause intended to revive prior policies or regulations in the event of invalidation, the Board shall determine whether the prior regulations are valid during this period (see RCW 36.70A.280).

The purpose of this report is to provide data to the Commission on instances state-wide of the vesting of permit applications during the period that an appeal is pending before a Board. A vested permit application entitles the applicant to improve and use land in the manner permitted under the ordinances in effect on the date the application is deemed complete by a jurisdiction.

Of interest in this study are: a) those permits which were submitted and vested after the new plan or regulations were adopted, but before the Board’s order of non-compliance or invalidity, and b) those permits which vested under the prior policy or regulation enacted in response to the order of remand. These permits could frustrate the goals of GMA if the final decision would preclude them in the revised plan or regulations.

The question being asked is, to what extent have development applications been vesting under regulations that are inconsistent with the goals of the GMA? The answer to this question would enable the Commission to analyze the impact of such approvals on attaining the goals of the GMA and to recommend statutory changes to address the adverse impacts.

Gathering the data was a two step process: 1) obtaining and reviewing case data from the Department of Community, Trade and Economic Development (CTED) and the Boards; and, 2) researching permit data for selected jurisdictions. The CTED data from the first step of the study were used to select the jurisdictions for the second step.

Three primary types of permit data were defined to request from the selected jurisdictions:

Monthly permit data which could be compared with dates associated with the development of comprehensive plans and development regulations.

Numbers of permits which vested under orders of non-compliance.

Numbers of permits which vested under orders of invalidity.

CTED presented data from their current database, CASESTAT. This database contains information on cases appealed to Boards for comprehensive plans and development regulations. A summary of the database was compiled, with statistics on the total number of petitions filed, their status before the Boards, how many decisions affirmed local governments’ actions, and how many decisions remanded the local government action for non-compliance or invalidity under the GMA. Only findings of non-compliance existed prior to 1995. Statutory authority for Boards to find comprehensive plans or development regulations invalid took effect on July 23, 1995, with section 110 of ESHB 1724. The number of findings of invalidity or non-compliance exceeded the number of cases as the decisions often included more than one finding of invalidity or non-compliance. Multiple portions of the comprehensive plan or the regulations could have been found invalid or non-compliant.

Appendix 1 contains the database and Appendix 2, the summary identifying the appeals by jurisdiction. This data was compiled by CTED from the information supplied to them by the Boards. The database summary is current through February 13, 1998.

The choice of jurisdictions was narrowed to focus on those in which the appeal involved the density or intensity of land uses. These appeals presented issues that were most likely to raise questions about consistency with the goals and purposes of GMA.

Examples of decisions with density or intensity issues include urban growth boundaries found to be too large or too small or in the wrong location, and designations of resource lands which were either too small or were not made, or where allowed densities exceeded or fell short of the acceptable targets.

The review of permits was limited to those likely to have the greatest density or intensity impacts. The selected permits were:

formal subdivisions

short subdivisions

planned unit developments

building permits or site plan approvals for commercial developments over 5  acres in size

master planned communities

master planned resorts

major industrial development

It was initially expected that the study would include a mixture of jurisdiction types. However, upon review of the CTED data, it was decided not to include cities in the study. Few cities had findings of invalidity, although several had findings of non-compliance, and the appeals involving cities rarely revolved around the density or intensity of land use.

Ten of the counties which have had comprehensive plans or development regulations held invalid or non-compliant as of November 30, 1997, were chosen. They are:

A summary of the planning activity dates for these jurisdictions is located in Appendix 3.

Once the jurisdictions were chosen, a letter from the Commission was sent to each of the planning directors, describing in general terms the purpose of the study and requesting assistance in obtaining the data. A copy of the letter can be found in Appendix 4. The following excerpted paragraphs from the letter describe the information initially requested from each jurisdiction:

The number of completed permits for formal subdivisions, short subdivisions, planned unit developments, building permits or site plan approvals for commercial developments over five acres in size, master planned communities, master planned resorts, and major industrial development submitted to the jurisdiction on a monthly basis beginning from the date you commenced planning under the GMA.

The number of permit applications of the type requested above that vested under the plan or development regulation that was found invalid or non-compliant, and would not be permitted under the new plan or regulation that was found in compliance.

At the same time, CTED supplied DEA with copies of the Board decisions for each jurisdiction. DEA reviewed these decisions to identify dates of significant events, including actions taken by the local government to comply with the GMA, appeals to the Board, and decisions of non-compliance or invalidity. From these dates, DEA determined periods of appeal for which details on specific permits would be sought.

A fact that presented a difficulty for the Vesting Study was that many of the jurisdictions with findings of invalidity still had not resolved the findings. In some counties, permits were still being submitted under the old plans or regulations and there was little indication of what the new plans or regulations would do to resolve the findings of noncompliance. Consequently, in these cases, the study was not expected to identify all permits that may vest under the older plans and regulations. These ongoing issues of non-compliance and invalidity constitute a limitation of this study. A permit data cut-off date of April 1998 was set for the purposes of the study for those jurisdictions that have yet to reach resolution.

The Commission’s letter was followed by telephone calls and/or memos from DEA to the planning directors to explain in greater detail the data being requested, including permits vested during the appeal periods, and to discuss the availability of the data. If necessary, DEA visited the jurisdiction to review the scope and format of available data. However, the scope of the project did not allow individual review of case files.

The jurisdictions’ responses to the request for permit data varied. The primary difficulties in retrieving the data appeared to be a lack of, or inadequate, computerized permit data and a short schedule timeline which limited responses. For most jurisdictions, allocating staff time for obtaining the data was a problem, in some cases because of current workload, in others because the most appropriate staff person was unavailable or had prior obligations. A few counties were sensitive to the use of the data due to their ongoing involvement in litigation. As a result of these difficulties, obtaining data in a timely fashion became the main stumbling block.

Table 1 shows the type of data that was obtained from each jurisdiction, with an explanation, where appropriate, of any deficiencies. In instances where problems with permit software prevented any reports of permitting volumes being produced, the planning director or contact person was asked to estimate permit volumes by year or month and type, if possible. Estimates are so indicated.

CTED provided summaries of the number of appeals to the Boards. Table 2 contains information on the initial number of petitions filed, the status of cases before the Boards, and categories of findings issued.

As indicated in Table 2, 90% of the total number of cases have been decided. With respect to undecided cases, 9% remain before the Central Board, 6% before the Western Board, and 23% before the Eastern Board.

CTED databases provide a list of all of the jurisdictions with appeals to a Board for comprehensive plans or development regulations. A total of 55 jurisdictions had appeals before a Board. The databases list the type of plan, the dates of amendments or changes, whether the document was a draft or final plan, and when the plan or regulation was adopted. A report from the databases can be found in Appendix 1.

A memo produced by CTED summarizes the decisions of invalidity that the Boards have issued. A copy of the memo is included in Appendix 5. The memo notes that eighteen separate decisions determined that the actions of fourteen jurisdictions were invalid as of November 1997. More than half of those jurisdictions have made substantial progress toward compliance with the GMA. The Boards have partially or completely rescinded the order of invalidity for seven of the jurisdictions. Included in the memo are descriptions of each jurisdiction’s issues and status with respect to the appeal. This information is used in the discussion of individual jurisdictions below.

Since little specific permit data were provided, it was not possible to determine which of the vested permits would not have been allowed under the revised regulations that were subsequently found to be in compliance with GMA. It was assumed that all subsequently revised plans or regulations were more restrictive than the jurisdiction’s previous and non-compliant plans or regulations. This assumption was challenged by Pierce County, which noted that in some cases an appeal to a Board was from the business or development communities which were challenging a plan or regulation considered to be overly restrictive. Since Pierce County was the only jurisdiction to raise this issue, and since a review of the Boards’ decisions did not reveal a prevalence of this type of appeal, the basic assumption was maintained for the whole study.

Chelan County commenced planning under the GMA in the Fall of 1990. On November 30, 1993, Resolution 93-158 was adopted to designate and protect resource lands and critical areas.

On August 8, 1994, the Eastern Board issued its Final Order and Decision finding Chelan County not in compliance with the GMA for failure to adequately designate and conserve agricultural and forest resource lands. The County was given until December 8, 1994, to come into compliance.

On December 7, 1994, Resolution 94-160 revised the forest and mineral resource lands designations and protections. On January 30, 1995, the Eastern Board found that 94-160 brought the County into compliance with regard to forest and mineral resource lands, but that the County remained non-compliant with regard to the designation and regulation of agricultural resource lands. On December 12, 1995, as part of a court challenge to the GMA, the County Board of Commissioners repealed the resolutions regarding resource lands.

On January 2, 1996, the Eastern Board found that sections dealing with the permitted uses and agricultural lands designations in the Interim Commercial Agriculture District were invalid. Among the reasons cited by the Board for the determination of invalidity were that the provisions allowing residential development in resource lands on parcels as small as one acre in size, and the failure to adequately designate agricultural lands substantially interfered with the natural resource industries goal of the GMA. Resolution 97-122 amended 93-158 by establishing revised interim commercial agricultural district designations and regulations.

On December 3, 1997, the Eastern Board found that the Interim Agricultural Resource Lands designations and Interim Agricultural Lands regulations no longer substantially interfered with the fulfillment of GMA goals.

No permit data were provided. Chelan County does not currently track the number of permits submitted on a monthly basis from the date they commenced planning under GMA, nor have they the personnel resources to compile that information within the time frame of the project. The county has not tracked the number of permit applications which vested under non-compliant and/or invalid GMA implementing regulations which would not have been permitted under the new regulations. The County felt it would be unduly burdensome to staff resources to make an attempt to collect such information. Please refer to the May 20, 1998, letter from Susan Hinkle, Chelan County Deputy Prosecuting Attorney, for an explanation of concerns regarding the available permit data. Appendix 6.

Clark County’s comprehensive plan and development regulations were adopted in late 1994 and became effective on January 1, 1995. On September 20, 1995, the Western Board found that parts of the plan and regulations were not in compliance with GMA and remanded the regulations to the County. The primary issues were:

Minimum lot size of 1 dwelling unit (du) per 5 acres for some areas of the county was too small;

Resource lands were inappropriately zoned in Interim Urban Reserve Areas (which were designated for potential development beyond the 20-year planning period); and,

Some UGAs of Camas, Ridgefield, in the Columbia Gorge National Scenic Area and between Camas and Vancouver needed to be changed.

Following adoption of a revised plan and regulations on May 3, 1996, zoning regulations pertaining to these issues were declared invalid on October 1, 1996. Ordinances to re-designate the resource lands and to redraw the UGAs were passed on April 22 and May 27, 1997, respectively. They were subsequently found to be in compliance on December 7, 1997. Rural lot size remains an issue for areas north of the East Fork of the Lewis River. The County continues to process individual building permits on non-conforming lots, with densities up to 2 units per 5 acres. However, the County does not process building permits for contiguous non-conforming lots. In addition, although the zoning has not been changed, the County considers the underlying density for subdivision applications to have a minimum lot size of 10 acres.

Until April 1993, the County allowed large lot subdivisions in rural areas called "segregations". In April 1993, a moratorium on these segregations was passed.

The total number of permits issued by Clark County is shown in Figure 1. The number of vested as opposed to issued permits was not available within the time frame of this report. The total number of permits were further identified by type: subdivisions, short plats, PUDs, and site plan reviews. No breakdown of site plan reviews between residential, commercial and industrial was available.

From the chart, there appear to be spikes in permitting at two significant times. The first involved increases in the number of subdivision, short plat, and site plan permits in November 1992 and March-April 1993, which coincides with the period leading up to a moratorium on large lot subdivisions. The second involved a series of three spikes in the period leading up to the adoption of the comprehensive plan and development regulations in the period from May 1994 to January 1995. For six months after the adoption of the plan and regulations, however, permit volumes for subdivisions and short plats were generally lower than at any time since 1990. Permit volumes for short plats and subdivisions did not increase sharply again until December 1997, which coincides with the decision of compliance by the Board on the resource lands and UGA issues, but not on the rural lot sizes. PUD and master plan permit volumes totaled few to none.

Following the sharp increase of permit applications prior to the adoption of the comprehensive plan and implementing regulations in 1994, numbers of permit applications dropped and remained relatively steady throughout the periods of non-compliance, invalidity, and adoptions of revised ordinances as reflected in Table 3 and Figure 1.

Jefferson County commenced planning under GMA on October 22, 1990. On January 10, 1994, the County adopted Ordinance 02-0110-94, effective on January 20, 1994, which designated the Tri-Area, Port Townsend, and Port Ludlow areas as interim urban growth areas (IUGA’s). This ordinance was subsequently amended by Ordinances 03-0207-94 on February 8, 1994, and 04-0228-94 on February 28, 1994. The Board found Ordinance 02-0110-94, as amended by 03-0270-94 to be non-compliant with GMA. The County adopted Ordinance 15-1028-94 on October 28, 1994, which removed Port Ludlow and the Tri-Area from the interim urban growth areas. This ordinance was found non-compliant on December 14, 1994. The County then adopted Ordinance 01-0117-95 on January 17, 1995, which redesignated the Port Ludlow area. On October 2, 1995, Jefferson County adopted Ordinance 17-1002-95 which subsequently repealed Ordinance 01-0117-95 and reverted the Port Ludlow area to rural status with a ‘rural’ level of service standards.

During the above-described period of changing urban growth area boundaries, Jefferson County experienced surges of applications for the division of land, concerns over which led to the adoption of three separate development moratoria. The first development moratorium was established by Resolution 97-94 on September 6, 1994, and lasted for 45 days. This moratorium was in response to the Board’s Order, and applied to applications for short and long subdivisions, mobile home parks, recreational vehicle parks, commercial/industrial divisions, condominiums, and uses subject to the zoning code including planned unit developments and zoning reclassifications. The second development moratorium took effect on November 21, 1995, with Ordinance 19-1121-95, and was based upon concerns that the County be able to fully retain its planning options during the period of revisions to the draft comprehensive plan. The third moratorium was established by Ordinance 02-0505-97 on April 17, 1997. Among its concerns, the County states, "Immediately prior to the release of the Draft Plan, during the months of January and early February 1997 Jefferson County received 9 applications for the subdivision of land......Over 90% of these applications impact land proposed to be down-zoned in the Draft Comprehensive Plan." This moratorium remains in effect to the present day.

On February 16, 1995, the Board issued a final order finding Jefferson County not in compliance with the GMA with respect to its adoption of a forest lands ordinance and a mineral lands ordinance, and its omission of agricultural lands.

The Board issued its compliance order on August 17, 1995, ruling only on a newly adopted forest lands ordinance. The Board invalidated two provisions it found threatening to the conservation of forest lands: (1) a provision excluding lands from designation as Commercial Forest Lands of Long-Term Commercial Significance based upon production levels; and (2) an "opt out provision" for any parcels that the owner could show might not meet those production levels. Invalidity was based on substantial interference with the natural resource industries goal of the GMA.

After a year-long mediation process, the County and the Department of Natural Resources entered into a memorandum of understanding (MOU). Based on this MOU, the County adopted a revised interim Forest Resource Lands Ordinance. On June 4, 1997, the Board found the County in compliance and rescinded its determination of invalidity.

Jefferson County provided monthly permit application numbers from January 1994 to May 1997. Prior to these dates, permit data were not tracked electronically, and so were unavailable for the purposes of this study. There were no commercial or industrial applications for sites greater than five acres in size received between 1994 and the present. No applications for master planned resorts have been filed since the passage of the GMA.

Development moratoria were in effect between the dates of September 1994 to October 1994, December 1995 to February 1996, and April 1997 to the present.

Based on Figure 2, there appears to be a sharp rise in subdivision permit applications following the designations of Port Townsend, Port Ludlow, and the Tri-Area as IUGAs (although no data was available prior to January 1994). Following the first moratorium in September/October 1994, another rise in application numbers followed the reinstatement of the Port Ludlow area as an IUGA which peaked in November 1995, although Port Ludlow reverted to rural prior to the second moratorium which lasted from December 1995 to February 1996. The final rise in applications depicted by the graph preceded the adoption date of the draft comprehensive plan.

Due to the inability to search individual permit applications, the number of vested subdivision permit applications which would be inconsistent with the current UGAs and resource land designations is unknown.

On October 23, 1995, the Central Board issued its order on King County’s final urban growth area (FUGA) and comprehensive plan. The Central Board found amendments to the comprehensive plan and zoning code were "substantially different" and that the public did not have a reasonable opportunity to review and comment on the changes. The primary issues and areas involved included: (1) minimum lot sizes in the Ring Hill Estates/Bear Creek Community Planning Area vicinity; (2) rural versus industrial use on lands in the Preston vicinity; and (3) the Bear Creek "island UGA". The Central Board determined that the plan amendments and zoning amendments were invalid because they substantially interfered with the property rights and the citizen participation and coordination goals of the GMA.

In response to the Board’s order, the County deleted the amendments and readopted them after providing a reasonable opportunity for public comment. In its May 24, 1996, Finding of Compliance, the Board held that the County had procedurally complied with the Board’s Final Decision. The Board ruled that allegations and arguments claiming that the County did not substantively comply with either the Board’s Final Decision and Order or the GMA must be presented as a new petition for review. The order effectively rescinded the determination of invalidity.

Figure 3 displays the monthly permit information for King County from January 1990 through March 1998. Categories which were not included due to low application numbers (generally five or less per year) were: planned unit developments, fully contained communities (only tracked as a category from January 1996 through December 1996), and fully contained community/urban planned development (only tracked as a category from January 1997 through the present). In general, permit numbers for large commercial developments, multi-family developments, and formal subdivisions (pre-plats) have been relatively consistent from 1990 through the present. Peaks in short plat applications appear prior to 1991 when the County began planning under GMA. Another rise in short plat applications and, to a lesser extent, large commercial applications occurred at the end of 1994, possibly corresponding to the adoption date of the comprehensive plan.

It was not deemed necessary to include numbers of permits which vested under the King County amendments found out of compliance as the issues involved were primarily ones of public involvement and the end result was that essentially the same amendments were readopted after a public review period. The areas at issue were, additionally, of relatively small size, and so would have been difficult to separate from the overall numbers without searching individual files.

Kitsap County adopted an IUGA ordinance on October 4, 1993. On June 3, 1994, the Central Board issued its Final Decision and Order finding that the IUGA adopted by the County was not in compliance with the GMA. On December 9, 1995, the County adopted its comprehensive plan, including a FUGA virtually identical to the IUGA previously found not in compliance by the Board. On October 6, 1995, the Board issued its decision invalidating Kitsap County’s comprehensive plan and implementing development regulations. The decision set a compliance date of April 3, 1996.

The Central Board held a compliance hearing on May 9, 1996, at which the County was given until September 3, 1996, to comply. The compliance date was later extended until January 29, 1997. On December 23, 1996, the County adopted a revised comprehensive plan. Appeals of this plan were filed in a new case before the Board. The two cases were coordinated such that the compliance hearing and the hearing on the merits were held together on July 16, 1997. On September 8, 1997, the Board issued its Finding of Noncompliance and Determination of Invalidity on the first case and Order Dismissing the second. The Board partially rescinded its invalidity order. However, it continued to find the County’s comprehensive plan out of compliance with GMA and invalidated the urban growth areas, the land use map, rural residential densities, and the "Grandfathering Clause" and "Rural Infill" provisions. The Board found these to interfere with the urban growth and sprawl reduction goals of GMA. The County was given until April 3, 1998, to come into compliance. On May 7, 1998, the County adopted a revised comprehensive plan and implementing regulations which are to be submitted to the Board for compliance determination.

As evidenced by Figure 4, short plat numbers were high from 1990 through 1994 when the County adopted its comprehensive plan. The numbers of applications decrease dramatically after 1994 and then level off beginning in 1996, the year of adoption of the revised comprehensive plan. Without monthly breakdowns, it is impossible to make closer associations between the volume of permit applications and the planning and adoption dates of the comprehensive plans and development regulations.

Due to the inability to search individual permit files and the fact that the entire comprehensive plan and its implementing regulations were invalidated, it is not possible to determine how many vested permit applications would not have been allowed under the revised comprehensive plan, should it be found in compliance by the Board. Since the ruling of invalidity, a handout on the invalidity and vesting implications has been included by the County in permit application packages advising applicants to consult their legal counsel.

On May 7, 1996, the Eastern Board found the County’s commercial agriculture ordinance: a) failed to comply with the requirements of GMA because it failed to meet the planning goal’s minimum requirements to discourage incompatible uses on designated lands and to maintain and enhance natural resource industries; b) failed to designate agricultural lands of long term commercial significance; and c) failed to assure conservation of agricultural lands.

On June 18, 1996, the Board issued its Order Granting Partial Invalidity, invalidating a provision in the commercial agriculture ordinance that allowed property owners to "opt out" of the commercial agriculture designation if they met certain criteria. The Board found this provision substantially interfered with the natural resource industries goal in the GMA because it could be detrimental to the viability of commercial agriculture in the County. On November 22, 1996, the Board issued a Order of Continued Invalidity.

On May 27, 1997, the Board issued its Order on Compliance on Agricultural Lands of Long-term Commercial Significance Designation and Criteria in which it found that the County was still not in compliance. The Board made no determination with respect to the continued invalidity of the "opt out" provision.

On March 28, 1997, the Board issued its Final Decision and Order on Kittitas County’s comprehensive plan. The Board found that the County had failed to designate over 15,000 acres as forest lands of long-term commercial significance, that the owner of the largest share of these lands had segregated the disputed property into dozens of 20-acre parcels, and that resort developers were preparing to file a master planned resort application. On this basis, the Board found the failure to designate these lands substantially interfered with the urban growth, sprawl reduction, transportation, natural resource industries, open space and recreation, environment, and public facilities and services goals in the GMA. The Board invalidated those portions of the comprehensive plan, land use map, and the zoning map designating the lands described above as other than commercial forest, and any site-specific development regulations affecting those lands. The County was given until June 13, 1997, to come into compliance.

On April 16, 1998, the Board found that the County’s ordinance failing to designate the 15,000 acres in dispute no longer substantially interfered with the goals of GMA. The Board found that the County had borne its burden of showing that the designation or non-designation of the forest lands did not substantially interfere with the goals of GMA. The Board also found that the County Master Planned Resort policies were not consistent with and coordinated with the plans adopted by other cities or counties with common borders. The inconsistency between the MPR policies and the Countywide Planning Policies is to be rectified within 120 days from the date of the Order.

*Note: The data provided by the County consists of permit applications received of the requested types which were within the resource lands designated by the Kittitas County Commissioners.

The County has not received a great number of permit applications between the date they commenced planning under GMA to the present (see Table 4). The majority of those that were received have been for short plats in the Commercial Agriculture Resource land designation. One permit application for a master planned resort vested prior to the 1998 compliance with forest lands designation.

County-wide permit application numbers for subdivisions, short plats, PUDs, MPRs, or major industrial developments were not available. Study constraints prevented searching individual files to determine if the vested permit applications would be consistent with the current regulations which have been deemed compliant by the Board.

Pacific County commenced planning under GMA on October 30, 1990. The deadline set for the County to comply with the GMA for development regulations to protect critical areas and conserve resource lands was September 1, 1991. A technical advisory committee was established which produced a report detailing designation policies for resource lands and critical areas. The report was adopted on April 21, 1992 as Resolution #92-047, but no development regulations pertaining to critical areas or resource lands were adopted before the September 1991 deadline.

On June 13, 1995, Pacific County adopted zoning ordinance #95-0 allowing moderate density single family residential development on upland areas located within the interdunal environment. After the SDR-1 zone for this area was appealed, the County and the petitioners stipulated a deadline of May 31, 1996, to adopt regulations pertaining to critical areas. The deadline was not met, and the failure to adopt development regulations to protect critical areas and conserve resource lands was found to be invalid on July 31, 1996. No opinion of Ordinance #95-0 was made by the Western Board at this time. On February 6, 1997, the Western Board issued a second decision finding that several sections of the Shoreline Master Program were also invalid.

The County adopted a critical areas ordinance on April 11, 1997, and both orders of invalidity were rescinded on May 28, 1997. However, on July 10, 1997, the Western Board issued a second stipulation that the SDR-1 zoning classification would be invalid until the County adopted a comprehensive plan that was found in compliance by the Western Board.

Pacific County was not able to provide total permit data due to software difficulties. According to the planning director, the County has switched permitting software twice since the early 1990s, and in one transfer much of the previous data had been lost. No current data reports can be produced at the time. In lieu of this information, the director provided estimates of the annual permit volumes, as well as qualitative comments about permitting trends in Pacific County as they relate to the adoption of ordinances.

The estimated total permit volumes are shown in Table 5.

The planning director summarized permitting trends in Pacific as follows:

There was a permitting boom in 1994-1995 that was unrelated to County activities or planning under GMA. The number of building permits rose to 1,200, with about 425 residential building permits.

There was not a rush to vest permit applications during the periods of non-compliance and invalidity in those areas.

Currently, there is a slightly above average increase in permit volumes as Pacific County prepares to adopt its comprehensive plan and development regulations. There is an increase in activities associated with applications for subdivisions of 1 acre to 5 acre lots (e.g. surveying) as well as an increase in inquiries regarding requirements to vest applications.

With respect to development in the interdunal SDR-1 zone and under the Shoreline Master Program, the director indicated that no permits had been vested under either regulation. No development will occur under the SDR-1 zone until the comprehensive plan is adopted. There are no shoreline development permits being processed, because the SMP is still in limbo and has not been resolved. Therefore, there has been little adverse impact resulting from permits potentially vesting under regulations that conflict with the goals of GMA.

Pierce County adopted its IUGA ordinance (93-91S) on October 12, 1993. On July 5, 1994, the IUGA boundaries were remanded by the Central Board on the basis of non-compliance. A subsequent ordinance 94-82S, adopting a new comprehensive plan and interim development regulations, became effective on January 1, 1995, and resulted in the previous non-compliance order being lifted. However, portions of 94-82S were also found to be not in compliance on October 31, 1995, specifically those sections pertaining to Rural Activity Centers (RACs), the Gig Harbor and Tacoma Narrows Airport RACs, and the Rural 5 designation. All of these designations appeared to permit more intensive development than GMA would allow in rural areas. A separate non-compliance order was issued on March 20, 1996, with respect to the final development regulations that were adopted on July 11, 1995. These code sections related to previous areas of non-compliance.

An amended comprehensive plan and development regulations were adopted and became effective on May 1, 1996. Areas of the plan and regulations were found to still not comply with the GMA by an order of the Board on May 20, 1996. The RAC provisions still needed to include language that would prevent the development of urban uses in the rural areas. The South Gig Harbor and Tacoma Narrows Airport RACs were remanded because they permit urban levels of development, and the Rural 5 designation likewise still allowed urban growth in a rural area.

The Pierce County Department of Planning and Land Services responded to the data request indicating that it does not currently have the staff available to fulfill the information request and to verify the accuracy of the information pulled from their permit tracking system within the time constraints of the study. See letter from C.E. Vincent, Principal Planner, Pierce County Department of Planning and Land Services (Appendix 7).

Skagit County adopted its Interim Urban Growth Area boundaries and zoning designations under Skagit County Ordinances:

#15038, adopted October 5, 1993

#15280, adopted March 14, 1994

#15589, adopted December 20, 1994

#14.04, revised January 1997

On August 30, 1995, the Board issued an order requiring the County to eliminate any UGA designations outside of existing city limits and to develop language to preclude new urban residential, urban commercial, or urban industrial development.

On February 7, 1996, the Board issued a decision that found many zoning designations outside of the urban growth boundaries to be non-compliant with the GMA. The following sections of the zoning code were found invalid: R, RR, RI, O, M, M-MP, C-LI and Neighborhood Business. The Board had determined that these designations subjected more than 44,000 acres in the rural area to development densities of 12 du/acre, 6 du/acre or 1 du/acre.

Two temporary ordinances (#14925 and #15372) had been implemented by Skagit County to restrict residential development to 1 du/5 acres from June 29, 1993, until such time as the comprehensive land use element was adopted and implemented. However, zoning reverted to higher densities when the ordinances expired and were not replaced at that time.

Ordinance #16211, adopted on June 25, 1996, restricted density to 1 du/5 acres in most residential rural zones, except Rural Village and RR zones. The order of invalidity was lifted for Neighborhood Business zones on August 28, 1996, but remained for the rest of the issues.

A new comprehensive plan and development regulations were adopted on June 1, 1997, and invalidity was rescinded for all issues except the provisions for the expansion of existing non-conforming commercial and industrial uses outside the UGAs.

While there appears to have been an increase in short plat permit applications between the expiration of lot size controls and the adoption of the new comprehensive plan and development regulations, the numbers are not large enough to base conclusions upon. Study constraints prevented searching individual files to determine if the vested permit applications would be consistent with the current regulations deemed compliant by the Board.

Whatcom County established an IUGA ordinance on May 24, 1994, after the October 1, 1993, deadline. A petition was filed challenging the County’s failure to act in accordance with the GMA in establishing the IUGAs. The IUGAs were found non-compliant on November 9, 1994, and remanded to the County to be reestablished at the cities’ limits. The Western Board’s decisions for Whatcom County concerned the location of UGA boundaries and zoning designations in rural areas. Whatcom County had existing zoning in the adopted IUGAs that was later determined by the Western Board to be of an urban, rather than rural, nature. The zoning designations (TC, GC, RC, GI, LII, GM, and HII) and clustering and density bonus provisions for rural areas were then found invalid on March 29, 1996. The County adopted ordinances with the same zoning designations in January 1996. These were found to be non-compliant on September 12, 1996, with respect to non-contiguous (to urban areas) IUGAs and IUGAs outside Blaine, Sumas and the Geneva area of Bellingham.

The County adopted a new comprehensive plan and development regulations on May 27, 1997. Subsequently, the order of invalidity was partially rescinded for the PUD ordinance (except for the Blaine and Geneva UGAs), for the Cherry Point and Sumas UGAs.

Non-continuous monthly permit data for short plats, long plats, and PUDs between April 1992 and December 1996 were provided by the County. As evidenced by Figure 5, overall numbers were low, and there were no apparent rushes to develop in relation to adoption and non-compliance or invalidity dates. Permit data were not available for the period prior to the May 1997 adoption of the new comprehensive plan and development regulations. Study constraints prevented searching individual files to determine if the vested permit applications would be consistent with the current regulations which have been deemed compliant by the Western Board.

There were two major issues which prevented the complete collection of data.

Timing. Tight time constraints of the study prevented the examination of individual permit files to determine the projects’ compliance with the goals of GMA. Additional complications arose with the individual stages of the counties in planning under GMA. In addition to several cases which are still pending before the Boards, some counties (e.g. Skagit and Jefferson) were adopting revised comprehensive plans within the time frame of this study. Staff members involved with those tasks were understandably unavailable to assist in permit data collection. Compliance hearings in these instances have yet to occur.

Databases. Few, if any, jurisdictions have compiled databases of permit information with the intent of tracking the impacts of vested permits. Many of the issues examined by this study require the ability to search using geographical parameters which was not possible. Other technical difficulties arising from the incompatibility of database versions used within some individual jurisdictions which temporarily prevented the use of pre-existing electronic data.

To more specifically address questions on issues which have the potential to frustrate the goals of GMA requires that individual permit application files be scrutinized by either the Commission, its contractor(s), or county employees. Some questions include:

How many new developments will be built at higher densities than would have been permitted by the plan or regulation deemed compliant by the Board?

How many acres of resource lands will be lost to inappropriate development due to vesting?

The number of hours required for this intensity of data collection is outside the scope of this initial study. Should the Commission or others decide to pursue the issue of vesting further, this appears to be the next logical step.

While the lack of permit data prevented specific, detailed conclusions, general observations on the impact of vesting were made based on the researchers collective experiences. Two observations are pertinent. First, none of the jurisdictions contacted expressed an opinion that vesting was a major land use issue. Second, to the extent that vesting occurs it appears more often as a local issue and does not have widespread impacts across the jurisdiction.

The normal response of a local government to a land use issue with widespread impacts is to allocate additional resources, draft new land use regulations, or both. The additional resources could be the provision of new staff through the budget process or the reassignment of existing staff. New regulations are often also drafted to provide the legal basis for regulating the subject land use. Sometimes the regulations take the form of a moratorium on permit applications.

With one exception, local governments responding to the survey were not using these tools to respond to vesting. None of the jurisdictions communicated that they had hired new staff or reassigned existing staff to deal with vested permits despite repeated conversations with their staff on the issue from the director level on down. It is our belief that, if vested permits were a considered to be a major land use issue for these jurisdictions, they would have responded to the problem in some fashion and would have informed the researchers. From the researchers inquiries, this was not the case. The only exception was the development moratoria enacted by Jefferson County in response to a potential rush to the permit counter. But the general observation stands that the jurisdictions did not perceive there was a major land use issue or controversy associated with vested permits and therefore were not responding as expected.

Nonetheless, based on anecdotal and documented evidence, vested permits can create land use issues on a case-by-case basis. Generally, these cases are localized in their impact. They do not usually set precedent for other applications because of the requirement for submitting the permit within a relatively narrow window of opportunity. Also the cost of preparing complete land use applications sufficient to meet the vesting requirements is not insignificant. These time and cost constraints inhibit decisions by local land owners to act on short notice, thus dampening most potential rushes to the permit counter to take advantage of a window.

Vested permits can impact local land use issues because they may be inconsistent with the existing or proposed land uses. Neighbors and other local residents may be sufficiently upset by the vested permit to file an appeal. But the impacts of the vested permit problem are usually confined to the immediate surroundings. While these impacts are of importance to the local residents, they are less important to the overall land use plan because of their limited number and scope of impact.