The essential public facilities siting provisions of the Growth Management Act are unclear regarding the appropriate process and roles of local governments, state agencies and regional agencies for siting facilities of statewide or regional significance.

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. 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. 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. 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."

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. In this case it determined that there was no legislative intent to so exempt the city. The court did 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. 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.

The state’s Growth Management Act (RCW 36.70A.200) 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.

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 Growth Management Act 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.

Since the 1991 passage of the siting of essential public facilities provisions of GMA, and even before, there have been several efforts to address the issues surrounding the siting issue in general, and the implementation of the GMA provisions in particular. Some of these efforts include:

Prior to the 1991 enactment of the essential public facilities provisions of GMA, the Growth Strategies Commission made several findings and recommendations regarding the siting issue. These include:

"In areas required to do comprehensive planning, the Commission recommends that local governments coordinate their planning for the following critical growth issues that cross jurisdictional boundaries: transportation, open space networks, and fair sharing of essential public facilities." (pg. 5)

"The state should provide guidance and strong incentives to site essential state and regional public facilities through a regional process...It should, however, have the authority to ultimately site such facilities if the regional process fails." (pg. 32)

"The regional planning process should also be a forum for the equitable distribution of essential state and regional public facilities." (pg. 39-40)

The first statement is for the most part covered under the requirement that cities and their county plan together, e.g. countywide planning policies, and that counties plan together, e.g. through the multi-county planning policies established through the Puget Sound Regional Council. Both of these requirements of GMA are covered in RCW36.70A.210. The recommended actions of the second and third statements were not included in the GMA.

In 1992, the Washington State Transportation Commission established a policy advisory committee to evaluate the new siting of essential public facilities provisions of GMA, and to make policy recommendations to improve the process related to the siting of statewide transportation facilities. The committee, consisting of legislators, local governments, regional transportation planning organizations, and state transportation representatives, agreed that certain transportation facilities and services were most appropriately addressed at the statewide or regional level. The Committee recommended that the law be changed to more specifically define transportation facilities and services of statewide significance and to make explicit that the state, in cooperation with regions and local governments, should lead the planning needs identification for such facilities and services. Once identified in the state plan, these needs would be communicated to local agencies, which would have to reflect these facilities in their local comprehensive plans. The Transportation Commission adopted this policy direction, and transmitted its recommendations to the Legislature in 1993.

In 1993, the Legislature took up the issue of statewide transportation planning, with the definition of transportation facilities and services of statewide significance as a component. Because of local government concerns, these provisions were eliminated from the bill, which enacted RCW 47.06, defining statewide transportation planning. The Statewide significance provisions were again considered by the 1994 legislature, but again local opposition sidelined the bill. However, the Legislature did mandate a study of how state transportation facilities were being treated in local comprehensive planning under the GMA. This study, called the Level of Service Study, was conducted by the Legislative Transportation Committee over the 1994 Interim. This study resulted in a series of recommendations which attempted to sort out state, regional and local responsibility in planning for state highways, and it also recommended that transportation facilities of statewide significance be further defined, and to call out a statewide transportation planning process for these needs to be established and communicated to local government. The study recommendations were included in to a legislative bill, that was introduced in 1995. Since that time, the bill has passed the house, and has passed out of the Senate Transportation Committee, but has not yet passed the full Senate. Issues with the bill have included the inclusion of airports as statewide significant facilities, the inclusion of freight rail ancillary facilities (switching yards) in the definition, and the inclusion of marine ports in the definition.

Another place where siting essential public facilities has been raised as an issue is with the inclusion of SeaTac International Airport expansion into PSRC’s regional transportation plan. In making this regional decision, the PSRC requested that the state take a more active role in future airport siting issues, and that the state determine a fair mitigation approach to compensate local communities for the impacts of statewide or regional facility location.

While much early attention was given to the status of state or statewide transportation facilities with regards to the siting of essential public facilities provisions, more recently issues have emerged about other state facilities. One example is the treatment of Western State Hospital in the City of Lakewood’s interim zoning. As an interim measure, the city designated the area surrounding the hospital’s core campus as open space, thereby precluding the rest of the state-owned land for hospital purposes. This has again raised issues with the locally-driven siting process under GMA and its unclear relationship with state facilities.

Of the three Growth Management Hearings Boards, only the Central Puget Sound Board has decided cases concerning compliance with Growth Management Act provisions for essential public facility siting. Each of the three cases reviewed by the Hearings Board included challenges that plans or regulations did not comply with RCW 36.70A.200. Below is a summary of the primary parties involved in each of the three cases, the legal issues, and the Hearings Board’s decision.

The essential public facilities siting provisions of the Growth Management Act are unclear related to the siting of facilities of statewide or regional significance. This lack of clarity has led to confusion by local governments, state agencies and regional agencies regarding the appropriate process and roles for siting these facilities.

In 1995, the Children’s Alliance and Low Income Housing Institute (Children’s Alliance) challenged the City of Bellevue’s amendment of its group homes ordinance. Among the legal questions in the case was whether the ordinance violated RCW 36.70A.200(2). The Children’s Alliance argued that the ordinance prohibited siting of group homes for children in residential areas, relegating such facilities to commercial land for which supply and cost are issues. The City of Bellevue contended that the Children’s Alliance failed to show that group homes are among the essential public facilities listed by the Office of Financial Management.

The Hearings Board found that group homes for children are essential public facilities and that Bellevue’s ordinance violated RCW 36.70A.200(2), since it effectively precluded the ability to locate group homes for children within a residential area.

In 1995, the Burlington Northern/Santa Fe Railroad (Burlington Northern) challenged the City of Auburn’s comprehensive plan. The plan designated Burlington Northern’s property as Light Industrial, a designation which required all major activities to take place inside buildings. Among the legal issues in the case was whether the plan failed to comply with requirements of RCW 36.70A.200 by not containing a process for identifying and siting essential public facilities and by precluding the siting of essential public facilities. The City of Auburn contended that a railroad’s facilities are not currently designated essential public facilities by any state, local or city agency.

The Board found that Auburn’s Comprehensive Plan did not include a process for siting essential public facilities, but rather only a process to establish a process. Further, the Board concluded that railroads with facilities that serve the region are essential public facilities and that Auburn’s plan did preclude siting these facilities by requiring all significant activities to occur inside buildings.

The Airport Communities Coalition (cities of Normandy Park, Burien, Des Moines, Tukwila, and Federal Way and the Highline School District) brought suit in King County Superior Court regarding the 1996 decision made by the Puget Sound Regional Council to amend its Metropolitan Transportation Plan to include planning for a third runway at SeaTac International Airport. The challenge was on procedural grounds, among which was the argument of the jurisdictions that their plans took precedence over regional planning. In January, 1998, the Court found that the Regional Council had followed correct procedures - the EIS was adequate, surface transportation and financial analysis were adequate, and that nothing in the GMA establishes supremacy of local plans over regional or statewide plans, but rather that the plans must be coordinated. ("Coordination, not domination, is the theme." and "no jurisdiction, large or small, can dictate its desires.")

In 1997, the Port of Seattle challenged the City of Des Moines’ Comprehensive Plan. In part, the Port charged that Des Moines failed to amend its plan in recognition of the Puget Sound Regional Council’s decision to expand SeaTac International Airport by adding a third runway, thereby retaining plan policies that direct the City to oppose airport expansion.

In its decision, the Board found that expansion of an existing essential public facility, including necessary support activities associated with the expansion, is protected by RCW 36.70A.200. Further, the Board concluded that Des Moines’ Comprehensive Plan did not comply with RCW 36.70A.200 and would preclude expansion of SeaTac Airport.

In The Department of Corrections v. City of Kennewick, 86 Wn. App. 521 (1997), the court ordered the City of Kennewick to grant a conditional use permit to the Department of Corrections to site a work release facility. Although a hearing examiner had ruled that the proposed facility met all the conditions established in the City’s ordinance, the planning department and city council denied the permit. The court found that the denial was based on community fears of safety and devaluation of property. The court noted that when the legislature enacted 36.70A.200 it recognized that the location of essential public facilities, including penal institutions, might encounter community opposition. It inferred that unsubstantiated fears are not relevant to the siting issues, and it looked to the adequacy of the examiner’s consideration of the factors addressed in Kennewick’s ordinance when considering the application.

Provisions for siting essential public facilities in the adopted countywide planning policies or county comprehensive plans for 28 counties in Washington State were reviewed in autumn 1997. These plans and sets of policies were reviewed using a template with questions concerning (1) the definition of essential public facilities, (2) siting criteria, (3) mitigation measures and incentives, (4) procedures for determining how facilities are to be sited, and (5) establishment of an inventory of needed facilities.

Only seven of the 28 counties planning documents go beyond the language in the Growth Management Act in defining essential public facilities. Four counties did not establish any criteria for siting essential facilities, although two of these have provisions calling for such criteria to be established. The remaining counties have a broad range of criteria or factors to be considered for facility siting. Some of these counties only include a few criteria, such as location or service demand, while other counties may have up to a dozen distinct criteria that are employed as part of the siting process. Seven counties do not address mitigation. Among those counties that do address mitigation, there is again a significant difference in the level of detail. Some counties include only broad provisions stating that mitigation should be addressed, while others include listings of specific mitigation issues requiring attention. A number of the other counties have goals or policies that describe how a siting process would work. Seven counties have provisions that call for an inventory of needed facilities, while an additional five counties have a listing of existing facilities and/or deficiencies. Only four counties discuss incentives for host communities in their siting provisions. Since comprehensive plan adoption, some counties have developed a more detailed process through their development regulations.

In summary, most counties have performed some preliminary work on the issue of siting essential public facilities. However, this initial work tends to be very general, with few details.

While the Growth Management Act has established a process for the siting of essential public facilities under the local comprehensive planning process, this bottom-up process does not always work for statewide or regional facilities, especially those sited by state agencies. Specific issues include:

The process of identifying and siting these facilities is defined as a local responsibility under the Growth Management Act, while these facilities are often owned and provided by state or regional agencies or private companies. The role of these facility owners in identifying needs and in siting is unclear.

The definitions of essential public facilities provided by the legislation are vague. For example, "state and regional transportation facilities" are listed. Does this include all state-owned transportation facilities? What is a regional transportation facility? Does this include facilities not owned by the state, but which are of state-wide significance?

The status of the OFM list of essential state public facilities is not clear. The legislation indicates that this is a short-term list. In practice, OFM has used the 10 year capital budget as the list. A longer term list seems to be needed to better integrate into local land use plans, but state agencies vary in their authority to develop long term plans. Is the list meant to be generic types of facilities (i.e. interstate highways, branch campuses, etc...) or only specific improvement needs (i.e. widening I-405 from a to b, a UW building expansion, etc...). What process justifies the need for a facility on the list? Should all state capital projects be classified as essential?

The legislation is silent on any details of the siting process. Should mitigation be part of the siting process for essential public facilities? Should mitigation be a totally local decision?

At what point do local government siting requirements effectively preclude development or expansion of essential public facilities. Does "siting" include just new facilities, or does it include expansion of existing facilities as well?

What does the legislation imply for the use of state property? Can local governments make the decision to change the use of state lands?

Four basic options addressing siting of essential public facilities of regional or state-wide significance have been identified. These options include:

Each of these options is described below, including how each addresses the following key issues: determination of regional or statewide significance, determination of geographic scope and determination of equity.

This option would keep the statutory language as is.

Option 2: The Growth Strategies Commission Approach (1992)

The state should provide guidance and strong incentives to site essential state and regional public facilities through regional processes. The state should, however, have the authority to ultimately site such facilities if the regional process fails.

The Growth Strategies Commission (GSC) called for partnerships among all levels of government. It identified the need for state government planning. State agencies should be required to plan in conformity with the growth strategy and to coordinate their planning with other state agencies, local governments and regional organizations. The GSC believed that the building blocks of a statewide growth strategy are local governments. And, the GSC recommended regional processes with representation from all local governments and appropriate state officials for critical growth issues that cross jurisdictional boundaries (transportation, open space networks, and fair sharing of essential public facilities). After a regional plan is adopted or a siting decision made, state planning and actions would be consistent.

A state Siting Council should be formed to handle the location of state and regional public facilities that are not successfully sited by regional processes. Decisions should be based on clearly defined criteria. Decisions of the Siting Council should be appealable to the Court of Appeals with a very narrow provision of standing.

The state should develop guidelines on types of facilities to be sited, including identifying facilities of statewide and regional significance. Suggested facilities and services included waste disposal, higher education, airports, correctional facilities, and special needs housing.

Counties should be considered the smallest geographic boundaries for regional planning. Localities should be encouraged to form multi-county associations to develop regional plans and solutions for transportation, open space networks, and regional and state public service facilities. (The GSC acknowledged the 1990 GMA’s authorization of Regional Transportation Planning Organizations (RTPOs) for regional transportation planning.)

All siting processes should ensure that regional and state public service facilities are equitably distributed – "fairly shared" – throughout the region. The state should establish an incentive and mitigation fund to be used in the regional planning and siting process. One incentive would locate desired facilities along with undesired facilities. Another would require communities that cannot work out a program to accommodate some regional facilities to contribute to a fund that lessens the costs to communities that can. This could be accomplished by surcharges on fee-financed facilities, or direct mitigation charges on tax-financed facilities. Communities should not, however, be able to buy their way out of all responsibility for essential public facilities.

Option 3: Create a state Essential Public Facilities Siting Council

A state essential public facilities siting council would provide a one stop siting process for essential public facilities in Washington. Applicants for EPF siting would receive all of the necessary state and local environmental and land use permits and other licensing terms and conditions from the council. Once an EPF is sited, the council would have a continuing responsibility to monitor the construction and operation of the facility.

The EPFSC or council, following the model for the Energy Facilities Site Evaluation Council, is a state agency comprised of a citizen chair appointed by the Governor and representatives from nine state agencies. When the council receives an application to site a facility, it is augmented by representatives from particular counties, cities or port districts potentially affected by the project. In establishing non-state agency representation, the determination of geographic scope would be made. Once constituted for consideration of an application, the EPFSC would make a determination of regional or statewide significance. CTED would provide administrative and staff support for EPFSC.

Creation of the EPFSC and authorization for its activities would require statutory change, including possible delegation by federal agencies of authority to issue permits for facilities under their jurisdiction.

Option 4: Better state communication of essential state public facilities, better communications of state plans.

This is the approach proposed by the Transportation Commission and is reflected in legislation currently being considered by the Legislature.

Step 1: The Legislature declares certain facilities and/or services to be of statewide significance. These are generic types of facilities (e.g. Interstate highways, the freight railroad system, intercity passenger rail, etc..).

Step 2: The state agency responsible for the topic (e.g. transportation, corrections, etc...) would be responsible for developing a long range development plan for these facilities and services of statewide significance. These state plans would be developed cooperatively with local governments, appropriate regional agencies, and the private sector, and through a public process. The state plan would identify long range needs, and propose specific improvements to facilities and services of statewide significance.

Step 3: Once an improvement to a facility or service of statewide significance is adopted into the state agency plan, it becomes an essential state public facility which is listed on the OFM list. Local governments then cannot preclude the siting of the facility.

Step 4: Local governments must include these proposed improvements to facilities and services of statewide significance in their local comprehensive plans.

This option would clarify which facilities are of regional or statewide significance. This option does not address equity or mitigation in siting these facilities.