Issue Paper #2

1st Draft

Public Participation And Notice

I. IDENTIFICATION OF THE ISSUE

This issue paper addresses the public participation process and notice issues in conjunction with Growth Management Act planning and implementation. The GMA clearly contemplates that the citizens of state will play a key role in all aspects of the GMA planning process, and that there would be ample opportunity for them to participate in and comment on the development and implementation of their community land use plans. Making public participation meaningful is a difficult task that many jurisdictions struggle with.

II. BACKGROUND

A. THE GROWTH MANAGEMENT ACT

1. Citizen Participation Goal

The Growth Management Act sets forth a number of goals "to guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required or choose to plan under" the GMA. RCW 36.70A.020. The Citizen Participation Goal is:

Citizen participation and coordination. Encourage the involvement of citizens in the planning process and ensure coordination between communities and jurisdictions to reconcile conflicts.

RCW 36.70A.020(11).

2. Citizen Participation in the Comprehensive Planning Process

The GMA requires local governments to develop a public participation program.1 The program must include procedures that allow for public comment and review of proposals and alternatives during the development and amendment of comprehensive plans and development regulations.2

B. CTED Technical Assistance

In its technical publications, CTED has consistently identified citizen participation as a cornerstone of an effective growth management planning process.

1. Citizen Participation: Specific Technical Publications

Two initial publications dealt specifically with citizen participation at the philosophical, strategic and tactical levels: "A 'Bottom Up Primer' - A Guide to Citizen Participation" (CTED, October 1991) defined the concept of citizen participation, clarified the elements of an effective citizen participation program, and provided specific tips, techniques, and worksheets to assist staff and citizens at the local level. "Towards Managing Growth in Washington - A Guide to Community Visioning" (CTED, October 1991), a technique-specific companion publication, detailed the strategic steps used to create each community's "ideal and unique image of the future." It included pragmatic worksheets, checklists, questionnaires, and sample survey forms.

2. Citizen Participation: Related Technical Publications

In CTED's subsequent technical assistance guidebooks for the individual elements of the comprehensive plan, the importance of citizen participation as a policy commitment on the part of local government has been emphasized. For example, in "Preparing the Heart of Your Comprehensive Plan - A Land Use Element Guide," it was noted that communities should

Remember that you are planning for people. There are many sources of socio-economic data which can give you clues about community needs. However, the best way to understand the needs and desires of community members is to ask them and actively involve them. The values and goals they express should guide the development of land use alternatives which meet the needs of community residents. These goals and policies can, in fact, become criteria for evaluating different land use alternatives. (CTED, 1993, p.12)

Likewise, in "Small Communities Guide to Comprehensive Planning - A Model Comprehensive Plan," which used an extensive case study of a hypothetical town to assist smaller communities in developing their plans, readers were informed that

The city has undertaken an extensive public participation process to ensure the vision of the community expressed in the comprehensive plan reflects the needs and desires of the local population. The city has identified through the visioning process the following (list of nine) goals which provide a basis for planning. (CTED, 1993, p. 3)

3. Citizen Participation: The Short Course on Local Planning

CTED's Short Course on Local Planning, offered statewide in collaboration with the Planning Association of Washington, provides local elected and appointed officials (and citizens) an overview of all aspects of local planning, including citizen participation. Chapter 2 of the course manual, "Citizen Participation and the Public Process," addresses the actors, timing, and methods used in developing meaningful citizen participation programs. (PAW/CTED, 1994, pp. 2-1 - 2-27)

B. BOARD DECISIONS

Lack of adequate and meaningful public participation has been cited in four cases in which the Boards have issued findings of invalidity: C.U.S.T.E.R. Association and Dr. John S. Hruby, Watershed Defense Fund and Whatcom Environmental Council v. Whatcom County, WWGMHB 96-2-0008; Friends of Skagit County, Barbara Rudge, and Andrea Xavier v. Skagit County, WWGMHB No. 95-2-0065 (IUGA); Vashon-Maury, et al., v. King County, CPSGMHB No. 95-3-0008; and Whatcom Environmental Council, et al., v. Whatcom County, WWGMHB No. 95-2-0071. Although the failure to provide meaningful public participation was not the sole factor leading to the determination of invalidity in any of these cases, the Boards have recognized the failure as a contributing element.

Citizen participation has been raised as an issue by petitioners in more than 83 cases since the Boards began their work. (Adequate notice, on the other hand, had been raised in only 14 cases as of July 1996.) It is possible to infer from this statistic that the importance of citizen participation is widely recognized and embraced throughout the state as a key component of the growth management process. A less generous inference would be that citizen participation is recognized as a procedural necessity, the asserted violation of which warrants inclusion in most petitions for strategic reasons, regardless of the extent to which meaningful citizen participation was precluded by the local action(s) being challenged.

C. Regulatory Reform Task Force

The Governor's Task Force on Regulatory Reform recognized that citizen participation was a critical element of its overall objective of improving the land use process while protecting the environment. The Task Force recognized that "Enhance opportunities for meaningful public participation at the plan level are essential prerequisites for streamlined processes at the project level."3

III. ISSUE DISCUSSION

Is there a general agreement that there is a "problem" concerning the issue of public participation?

The question of public participation has been raised from two different perspectives. There have been some who argue that after an extensive public participation process and a decision by local elected officials, the Growth Management Hearings Boards have ignored the community vision and imposed its own ideas on the community. From this perspective, the Boards have failed to recognize allow communities to establish their own vision.

Another perspective has been provided by those who argue that the local government public participation process has not effectively taken into account the public's opinions. Often these appears to result from the fact that elected officials do not follow through on recommendations from advisory groups established to provide input to the elected officials. Participants in the process express frustration about the time and energy they put into a process that they believe has been ignored.

Under either analysis, there is a sense that the GMA approach to "bottoms up planning" may be in jeopardy. To some extent, both kinds of problems may be due to the manner in which local governments implement their public participation programs. Both members of the public as well as city and county staff consistently mention the following problem areas when discussing citizen participation: (1) process; (2) notification; (3) enforcement and mitigation; and (4) education and facilitation.

The following are some of the issues or questions raised under each of these areas.

1. Process

Does citizen participation mean only the opportunity to speak or should citizens expect to have influence on decisions that are to be made?

It is often perceived that conclusions are pre-determined before citizen participation begins.

Result of citizen participation are ignored.

Plans are therefore implemented which do not reflect citizen participation and inevitably will be met with resistance.

Citizen participation is an opportunity, but is often viewed as a problem.

Planning process without citizen participation is a waste of time and money.

True public involvement can obviate need for appeal.

Citizens should be involved before objectives and goals are defined.

Citizens should help develop vision of their respective community and therefore identify and deal with issues early on.

Citizens are a great resource that can provide information and perspective to local jurisdictions that they may not have otherwise.

Local governments do not have goals for public participation. Without goals it is impossible for the general public to know if local officials are accountable. Procedures and methods are often substituted for goals.

Emphasis on number of meetings and participants, not quality of participation, seems to reflect a lack of qualitative measure to access participation.

Need to limit public involvement at a project level seems to be statistically a non issue. 90%-92% of SEPA are not appealed.

Data gathering is being done well by local jurisdictions. Data analysis is not being done well, or in some cases, at all. Therefore both local jurisdictions and citizen groups and the business community are missing out on significant scientific information needed in the public process.

Beyond the level of visioning and value, is the comprehensive plan level where citizen participation should be relied upon for input? Should citizen participation be more cultivated at more specific plan levels after much of the technical work has been done? This assuming that the technical work reflects the guiding vision and values established by the community.

It is unavoidable that specific plans are going to create the highest level of reaction. Can informed citizen participation be of value at this level?

Why do jurisdictions so readily defer to "11th hour" reactions by the business community and give so little weight to the citizen process?

Why do citizens acting solely or in extreme position have so much weight in the public participation process.?

Citizens need to be clear as to what they bring to the table. Often times, citizens are not disciplined in their input and are not prepared to do the necessary work.

2. Notification

To members of the public, the perception that there has been insufficient or no notice is a great hindrance to meaningful public participation. Perhaps no other aspect of land use issues creates such instant cynicism as that little hidden notice about a zone change. Local jurisdictions can easily meet their legal requirements for notification and at the same time notify almost no one. The effect is that citizens feel broadsided at the last moment and are left with too little time and no resources to respond. A project proponent may be dismayed at the uproar over something on which it has already spent considerable time, and probably money, developing. The stage is set for a confrontation. To the public, there is a perception of a "done deal."

ESHB 1724 made some effort to address at least part of this problem by expanding the ways in which local governments could inform the public of project permit applications. Even with these changes, there are still a number of unresolved issues.

How do you define the stakeholders? Property owners, individuals and groups affected all need notification.

How does the information get framed? Language is often technical. This is clear to professionals but confusing to the public.

There is a perception that the public will resist any change or is unable to grasp complex issues. Often, it is the language that is more complex than the issue.

Insiders have information long before the general public.

Redundancy of notification is essential.

3. Enforcement and Mitigation

This area evoked the fewest specific comments but was almost always mentioned as a major concern of citizens and local jurisdictions. Enforcement is primarily a local issue and multi-jurisdictional in nature. It is a quality of life issue as well as a land use issue.

The perception by citizens is that enforcement of regulations and related mitigations meant to safeguard citizen interests in various land use issues are often lax or non-existent. Enforcement of zoning codes appear to be selective. Mitigation through good design is often ignored. Issues of density become highly manipulated trade-offs. Public space requirements are often developed to a minimum standard and then may be neglected altogether. Noise pollution issues, particularly those associated with density and traffic, create conflict within the community often involving response by public safety agencies.

It is at this level that many citizens finally become vocal.

NIMBYism is a failure of the planning process.

Building departments see their customer as the builder and planning departments see the customer as the community

Code enforcement does not reflect the planning commission mitigations.

Citizens make no distinctions between various jurisdictions involved in land use decisions.

Multi-jurisdictional realities in land use create a perception that "no one is in charge here."

Citizens do not understand what an environmental impact statement is. It is often perceived as a way to enforce the preservation of some status quo.

4. Education and Facilitation

Facilitation and education are the key components of successful citizen participation.

There is great emphasis placed on citizen participation in the GMA and again re-emphasized in HB 1724. This has created a huge expectation and obligation by all those involved with no road map to help people get there. Most jurisdictions do not have skilled facilitators in their employ. This also holds true for most citizen groups. Without the skills of a facilitator, it is not likely that any meaningful education is going to happen for any of those involved.

In fact this rather noble attempt to create true citizen participation is greatly undermined by lack of facilitation and loss of corresponding educational opportunities.

The chasms have grown significantly wider among stakeholders who are led to the brink of major planning issues with little or no skills to bridge the gaps.

Public involvement is a process of experience and education.

Information and education are a two way effort: Government ( Citizens

Spirit of public participation is important. Active listening is essential for all involved.

The process for early and continuous public participation needs to be clearly drawn throughout the comprehensive plan process. Time line and procedures need to be established and maintained.

Jurisdictions must be the providers of the essential facts.

Most local jurisdiction procedures are one way communications.

The public hearing process has become an exercise in highlighting polarities. No dialog occurs.

There is an overall dependence on verbal skills.

Meeting times and places are most often convenient for officials and staff.

A clearly defined process is essential and the only way to be fair to all.

Land use issues are steeped in highly technical jargon and legislative and regulatory history. The average citizen cannot hope to be as knowledgeable as staff or other professionals. Does this make citizen views less valuable? Or does this perhaps require a new way of communicating?

Smaller jurisdictions with limited or no staff have no possibility of creating a meaningful dialog encouraging citizen participation. In its absence the only thing early and continuous is the exclusiveness of stakeholders.

More emphasis is needed on creating multiple communications. Visioning, advisory groups, workshops, round table discussions, dynamic public hearings.

How do we use citizens time well and in a meaningful manner?

Facilitation allows for input based outcomes. i.e. This is where we are. This is what we heard. This works. This doesn't work, because....

IV. OPTIONS

A. No Action.

Pro

( No additional mandates would affect local jurisdictions.

Con

Tensions among citizens, government and business will continue to increase as expectations go unmet.

B. CTED provides local government technical assistance in order to implement new public participation techniques as intended in ESHB 1724.

Pro

This approach could be sensitive to the peculiar activities of each jurisdiction while maintaining the same goal of educated citizen participation.

Con

( Some communities may see any suggestions as intrusive and prefer the status quo.

C. CTED provides additional technical assistance and funding to non-profits and neighborhood organizations to develop facilitation and education programs that could be used by jurisdictions and citizens.

Pro

( Directions could be given by the State Agency, but "flavor" would be local in nature.

Con

( Difficult to maintain standards and judge effectiveness of local programs from a central viewpoint.

APPENDIX A

Governor's Task Force on Regulatory Reform

Recommendation VI. D.

VI. D. Improve Public Participation in the Development of Comprehensive Plans, Subarea Plans, and Neighborhood Plans

Local governments must use a variety of techniques to involve the public at all stages of the planning process. Integration of SEPA and GMA at the comprehensive plan level should reduce the need for extensive environmental analysis at the project level--policy decisions will be made through GMA plans rather than through the use of SEPA at the project level. Public participation requirements and practices must be re-thought in light of these changes. Enhanced opportunities for meaningful public participation at the plan level are essential prerequisites for streamlined processes at the project level. These recommendations are not intended to be prescriptive, but rather to guide local governments in doing the best job possible. Flexibility should be allowed so that local governments can be creative and innovative in their methods.

Finally, the Task Force does not believe legislation is necessary to implement these recommendations. However, local governments may need technical assistance in order to implement many of these approaches. The Legislature should assure that sufficient resources are provided to local governments to enable them to meet the public participation requirements.

Comprehensive Plan Level:

Public Participation Program. The jurisdiction should establish, publish and widely disseminate a public participation program which lays out the "procedures providing for early and continuous public participation" it intends to use during the comprehensive planning process. This program should describe which procedures will occur at the various stages of plan development, and place each proposed procedure at an approximate point on the timeline. The list of procedures in the GMA should serve as a blueprint for the public participation program. Jurisdictions should use a checklist showing how each component of the program would be implemented.

Visioning. A visioning process is strongly recommended as an important early step providing citizens with the opportunity to identify important values and community characteristics which they wish to have addressed in the comprehensive plan, and to work together to create a vision for the long term future of their community. The results of the visioning process must be carried forward and used meaningfully in the subsequent planning of the jurisdiction.

Advisory Groups. Citizens and stakeholder advisory groups are strongly recommended to work with planners and officials to develop the plan, based on GMA requirements and the visioning results. The groups should be balanced and should involve all key constituencies (including kids, senior citizens, various economic levels, agencies that have veto power over the plan, etc.). Their mission, scope and time frame must be clearly spelled out.

Workshops and Roundtable Discussions. Workshops and roundtable discussions are important complements to the public hearing process. They help citizens and stakeholders to become better informed about planning issues and proposals, and create an opportunity for views and concerns to be exchanged in a forum that enhances mutual understanding and respect. They are best used at appropriate stages of planning such as: visioning, creation of alternatives, framing of issues, and developing mitigation. The workshops and roundtable discussions should rely on materials which clearly frame the issues using language and graphics easily understandable to the participants.

Public Hearings. Public hearings alone are not effective as public participation tools, but in conjunction with a number of other processes may be helpful. They do give citizens a feeling of being heard by their government but do not usually elicit the type of thoughtful participation more likely to occur in other settings. While workshops and roundtable formats work best at the stages mentioned above, public hearings are most appropriate immediately preceding plan adoption. Public hearings should be held in venues which are convenient and non-intimidating to citizens, such as public schools and community centers. Jurisdictions should consider holding a series of public hearings in various parts of the jurisdiction rather than a single hearing in Council chambers.

Presenting Information and Inviting Participation. Good graphic illustrations of the concepts and proposals under consideration are very important ingredients of effective public participation in planning. These can include isometric drawings, 3-D maps, slides and photographs of different zoning categories and densities, aerial photographs, small scale maps for citizens to mark up, and any other tools which allow citizens to visualize the plan in ways they can understand. Public participation mechanisms which are interactive are very successful at engaging the interest and involvement of citizens. These can involve television shows or videos followed by facilitated discussions and questionnaires, a visual preference survey tool, computerized response mechanisms linked to graphics illustrating options or alternative scenarios, and other similar tools. GMA Hotlines can be very useful, conveying to citizens through a recorded message when, where and on what topic the next scheduled meetings will occur, and providing a link to a responsible planning official.

Feedback. Continual feedback is essential so that the public feels its participation was listened to and valued. This means responding in such a way that the variety of comments and suggestions is acknowledged, and the rationale for the decision is spelled out. An important feedback component should occur when the plan is adopted; this should include information on the next steps -- development regulations -- and how citizen comments were used to arrive at the plan decisions.

Public Involvement Record. Creating a record of public involvement is important because, in our highly mobile society, people moving in and out of neighborhoods need to know and respect the prior involvement of their neighbors and how it influenced the decision making process. Officials should keep a record of who came to meetings, where they live, and what decisions were made. This record could appear as an appendix to the plan. It should be consulted as part of the plan amendment process as well.

Subarea and Neighborhood Plan Level:

All the tools suggested for the comprehensive plan would be appropriate for subarea and neighborhood planning. Because most comprehensive plans are complete or nearly complete by this time, focus on public involvement at the subarea plan level should receive particular attention now. Additional considerations:

Parameters. The parameters for the subarea plan must be made clear from the outset. Citizens need to understand that the subarea plan must comply with GMA and be consistent with the comprehensive plan, or that if it results in proposed changes to the comprehensive plan these must be looked at in the context of the entire jurisdiction and balanced accordingly. Boundaries must be clearly established as well. The plan doesn't need to include all elements required in the comprehensive plan, but early negotiations between the subarea citizens and the jurisdiction should establish which elements are to be included. Planning resources, staffing, methods of achieving representation, timelines--all must be agreed to before the process gets underway.

Community Validation. Before the completed plan goes on to the Planning Commission (where one exists), or to the Council for adoption, the subarea plan could be subject to an accelerated validation process of some sort. This safeguard addresses the difficulty of ensuring that citizens working on the plan are fully representative of all interests in the community.

Integration with Comprehensive Plan. The subarea plan must be carefully integrated into the comprehensive plan so that it remains consistent with the plan and GMA, and its impacts on other areas of the jurisdiction are considered and mitigated.

Partnership. Care should be taken to develop a collaborative partnership between the subarea citizens and the jurisdiction, so that citizens feel ownership of their plan but understand the need for it to relate to the jurisdiction's needs as a whole. Ideally this is neither a top-down nor a bottom-up process, but should have elements of both approaches.

Plan Amendment Process:

Effective public participation in plan amendments provides an excellent opportunity to involve citizens in the comprehensive plan even after it has been adopted, and may even be an easier route to that goal because it is a more specific and understandable process.

Monitoring and Evaluation. Involve citizens in establishing a process for monitoring and evaluation of the plan. This typically would be an indicators and benchmarking process, although the jurisdiction could create another method if it preferred.

Feedback from Project-Related Review. Jurisdictions should establish a method for docketing public comment on projects which is plan- or policy-related, so that this input could be considered by decision makers at the time they are developing plan amendments. Consistently mentioned issues and concerns should be given particular attention.

Public Notice. The amendment process should be widely advertised and broadly accessible for public input and comment. Input should be gathered, summarized, and converted to suggested amendments where appropriate.

Citizens Oversight Committee. A Citizens Oversight Committee would be a good way to enhance public confidence in the amendment process. The committee could suggest methods and procedures for ensuring a successful amendment process, and then oversee the process as it moves from soliciting comment to decision making.

Permitting Process:

Public participation during the permitting process is covered elsewhere in the subcommittee's recommendations. The following recommendations would further improve public participation at the permitting stage:

Pre-Application Review. Encourage pre-application design review meeting(s) between the community and the project proponent in order to discuss the project, communicate concerns and community design values, discuss mitigation measures, and generally improve the prospects of smooth sailing for the project later in the process.

Clear Purpose of Comment Periods. Clear definitions of the purpose of public comment periods would greatly improve the chances for focused and pertinent input. Comments which are "outside the box" -- plan related instead of pertinent to the project -- should be docketed for discussion during the plan amendment process (see above).

Effect of Major Changes to Project Proposal. Should major changes in the project occur during the review process, citizens should be given another chance to comment on the project. The definition of "major" should be clearly understood up front and arrived at with public input.

Meaningful Participation. Jurisdictions should provide meaningful opportunities for citizens to help devise appropriate mitigation for the proposed project.