ISSUE PAPER # 6
2nd Draft
Invalidity
I. BRIEF STATEMENT OF THE ISSUE
This issue paper addresses the power of the Growth Management Hearing Boards to invalidate comprehensive plans and development regulations.
II. BACKGROUND
A. Pre-GMA.
The GMA was amended in 1991 Footnote1 to establish the Growth Management Hearings Boards. They were initially given the authority to hear appeals of local government or state agency actions under the GMA. The Boards were also given the authority to enter final orders that a local government was or was not in compliance with the requirements of the Act.
Before the enactment of the GMA, concerns about the validity of permits issued or pending prior to adoption of a comprehensive plan had seldom arisen in Washington, primarily because pre-GMA comprehensive plans and zoning ordinances had rarely, if ever, been found invalid by the courts. The standard of review for such legislative acts was extremely deferential to local governments Footnote2 and resulted in few, if any, lawsuits challenging the adoption of comprehensive plans or area-wide zoning ordinances. Prior to enactment of the GMA, cities and counties were not required to adopt comprehensive plans. State statutes governing those plans contained few substantive requirements. Furthermore, zoning regulations could be inconsistent with a local government's comprehensive plan. As a result, it was only in the rare cases when cities or counties failed to follow proper procedures that zoning ordinances were overturned. In those cases, the courts would often limit the effect of the decision to the plaintiff in that action. In addition, when enacting new zoning regulations that might be challenged in court, local governments often would include a savings clause that would ensure that they would not be left in a situation where no zoning ordinance applied, in the unlikely event that the new regulations were overturned by a court.
The GMA changed this situation by requiring that certain counties and cities adopt comprehensive plans and development regulations. The GMA also established standards against which to measure those plans. Development regulations must be consistent with the adopted comprehensive plans. This meant that it would be possible for comprehensive plans or development regulations to not only be procedurally out of compliance, but also to be substantively out compliance.
B. Post-GMA Concerns: The "Train Wreck."
During the spring and summer of 1994, the Governor's Task Force on Regulatory Reform was meeting to discuss various issues relating to simplifying and streamlining the land use permit process. One of the concerns raised at that time was about the effect of a Growth Management Hearings Board finding that a plan or development regulation was not in compliance with the requirements of the GMA. A number of participants in the Task Force discussions were concerned that an order of noncompliance could cause serious questions regarding the validity of permits that had been issued pursuant to those regulations between the time the regulations were adopted and the time the Board issued its order. Footnote3 There were also concerns about the impact the finding might have on vested applications. Footnote4 Should local governments continue to process applications that were vested to the regulations that the Boards had decided did not comply with the Act? Did a de facto moratorium exist? Would allowing projects to continue to vest while a plan or regulation was on appeal to the Board encourage a rush to the permit counter? What should local governments do pending an appeal to court?
At that time local governments were just beginning to adopt their plans and development regulations. Task Force participants believed that the Task Force should recommend GMA amendments to clarify this issue before a problem arose. At the time, this potential problem was widely referred to as the coming "train wreck."
The concerns were initially raised primarily by developers' lawyers who were concerned that lenders might refuse to provide financing for projects in cities and counties where the plans or development regulations were under appeal or had already been found not to be in compliance with the requirements of the Act, even if the particular permit or project in question had not been appealed and was not affected by the issues under appeal. These lawyers were concerned that banks and other financial institutions would be unwilling to lend money on development projects unless attorneys were willing to opine that a finding of noncompliance did not put existing permits at risk. No one was sure whether, in fact, this was true.
Some city attorneys and county prosecutors were also concerned that an order of noncompliance issued by a Board could have a chilling effect on the ability to proceed with development projects within a city or county, including, in particular, government projects. For example, would bond counsel opine that bonds could be issued for facilities in jurisdictions where the plan or development regulations was under appeal or had been found not to comply with the requirements of the Act? There was also a concern regarding the ability of cities and counties to continue to issue building permits after a finding of noncompliance had been made by the board.
Citizen activists and growth management proponents were concerned that the attempt to address the "train wreck" should not encourage continued vesting or a rush to the permit counter that could result in development, especially in rural areas, that would substantially interfere with the local government's ability to fulfill the goals of the GMA. Because of the liberal vesting rule in Washington, most local governments had experienced rushes to the permit counter in the past when adopting significant amendments to pre-GMA zoning. Environmentalists were concerned that the long time period allowed for GMA compliance already allowed significant time for vesting of plats and other permits. Many environmentalists felt that allowing vesting to continue while plans and regulations were on appeal, and in particular after a plan or regulation had been found not to be in compliance with the requirements of the GMA, could eliminate any incentive for local governments to adopt plans and regulations that did comply with the GMA. Footnote5
C. 1995 GMA Amendments - ESHB 1724
The Governor's Task Force on Regulatory Reform did recommend amendments to GMA that were intended to clarify the concerns outlined above. These amendments were the result of numerous discussions and many compromises. There was not much concern about allowing permit activity to continue within established urban growth areas, especially cities, after a finding of noncompliance. The development community was looking for certainty in which projects were vested and what rules would apply to them. However, citizen activists and growth management proponents were concerned that platting activity in rural areas at "suburban or urban" densities would cause sprawl and would undermine the goals of the GMA. They also wanted to be sure that platting activity that was not in compliance with the GMA could be stopped. There was consensus that there was a need for certainty and that applications that had "vested" prior to the Board's decision should not be affected.
The amendments were included in ESHB 1724 that was adopted by the 1995 Legislature and are attached to this Issue Paper. The amendments clarified that:
| A finding of noncompliance and an order of remand would not affect the validity of comprehensive plans and development regulations unless the board's order also included a "determination of invalidity." |
| The determination of invalidity must be supported by findings and conclusions that the continued validity of the plan or regulation would "substantially interfere with the fulfillment of the goals of the GMA" and must specify the part or parts of the plan or regulation that are determined to be invalid and the reasons for their invalidity. Footnote6 |
| The determination of invalidity would be prospective only and would not extinguish rights that vested before the board's order. |
| Applications filed after the board's order would be required to comply with the amended plans or regulations that were enacted in response to the Board's order and later found to comply with the requirements of the GMA. Footnote7 |
| If the local government adopted a savings clause to allow the pre-GMA plans or regulations to apply in the event of a determination of invalidity, the Board was authorized to determine if the prior policies should be valid during the period of remand. |
These amendments clarified that a determination of noncompliance (without a determination of invalidity) would have no effect on issued permits or on any pending or future permit applications. In addition, there would be no effect on permits issued, or on permit applications that vested, before a Board issued a determination of invalidity. Future permit applications would be affected only if a determination of invalidity was made. Counties and cities operating under a determination of invalidity were expected to quickly correct the problem and were allowed to return to the Boards as soon as possible Footnote8 for a determination that they were now in compliance with the requirements of the GMA.
III. DISCUSSION OF THE ISSUE
A. Local Government Difficulty in Meeting Compliance Deadlines
Determinations of invalidity have been issued by all three Boards Footnote9. Contrary to what had been anticipated by the drafters of the "train wreck" amendments, local governments have not taken the necessary actions to quickly remedy the situation and bring their plans and regulations into compliance with the GMA. In some cases, complying with the order may take a number of months, or even years. Elections may intervene which can slow the process down further. There is a strong feeling among builders, developers and contractors that they should not have to cease doing business because the local government cannot or will not comply with the GMA. On the other hand, proponents of growth management have pointed out that local governments affected by the orders have generally been making good progress towards compliance with the GMA.
B. Power of an Appointed Board
Some local elected officials and citizen activists have questioned whether an appointed Board should, or does, have the power to invalidate ordinances passed by local elected officials, absent court approval of a determination of invalidity. Furthermore, prior to the recent amendment by SSB 6637 discussed in Part IV below, appeals of determinations of invalidity to superior court have not been considered to be an effective solution to this problem because the courts have not been acting on GMA appeals in a timely manner Footnote10 and because courts are expected to defer to the Boards' interpretation of the GMA rather than to conduct an independent review of the Boards' legal conclusions. Footnote11
C. What Does It Take To Escape From Invalidity?
Under the provisions of RCW 36.70A.300(3)(b), development applications filed after the issuance of a determination of invalidity vest "to the local ordinance or resolution that both is enacted in response to the order of remand and determined by the board pursuant to RCW 36.70A.330 to comply with the requirements of this chapter." There has been some confusion as to whether plans and regulations must be amended to fully comply with the GMA before a county or city can escape from the consequences of invalidity. Although RCW 36.70A.330(4) would appear to allow the Board to determine that an amendment "enacted in response to the order of remand" is not in compliance, but is not invalid, the Western Board has recently ruled that "a modification or rescission of invalidity without a finding of compliance does not allow 'suspended vesting' to reinstate automatically. The new ordinance must also comply with the Act." Footnote12 Therefore, there is a serious question as to whether the intermediate step of noncompliance alone is available once the plan or regulation has been declared invalid, even if the plan or regulation is corrected so that it no longer substantially interferes with the goals of the GMA. Should a local government be allowed to escape from invalidity and begin to process and issue permits by graduating to "not in compliance," while continuing to work on some remaining issues?
D. Application of Invalidity to Pre-GMA Plans and Regulations.
In its recommendation that the Boards be given the authority to invalidate comprehensive plans and development regulations, the Governor's Task Force also recommended that the Boards be allowed to determine whether prior policies and regulations should remain in effect during the period of remand. Footnote13 The Western Growth Management Hearings Board has held that it also has the authority to review the validity of development regulations adopted pursuant to statutes other than the GMA when a local government has failed to adopt GMA plans or regulations and is under a Board Order to complete the GMA process. Footnote14 Although there is little question that the board has the authority to invalidate pre-GMA plans or regulations as part of an order invalidating a GMA plan or regulation, there is some question whether the Boards may invalidate pre-GMA plans and development regulations in other circumstances, such as cases involving a local government's failure to act in a timely manner to adopt GMA plans and regulations.
E. Confusion Regarding "Vested" Applications.
Some confusion has occurred as to the application of invalidity to subdivisions that had vested prior to the Board's determination of invalidity. The statute is clear that applications which vested prior to the date of an order of invalidity are not affected by the order. Footnote15 Nonetheless, there has been concern among property owners and developers about the reach of Board orders. The Western Board has attempted to clarify this issue in two recent decisions involving determinations of invalidity in Island and Skagit Counties. Their language has been confusing, referring to "vested lots" in one case Footnote16 and to "pre-existing legal lots" and "lots of record" in another case. Footnote17 This attempt at clarification has not cleared the waters.
F. 1996 AMENDMENTS AND GOVERNOR'S VETO - SSB 6637
With the first orders of invalidity issued shortly before the beginning of the 1996 legislative session, it is not surprising that this power of the Boards was a topic of much discussion during the session. Although there were a number of different proposals introduced to make changes in the Boards' authority, until near the end of the session, none of them gained enough support to pass both houses of the Legislature. Towards the end of the session, under the aegis of Sen. Haugen and Rep. Reams, the interest groups spent several days negotiating over changes to GMA that would be acceptable to all sides. In the end, the parties were only partially successful in achieving this goal. The Legislature did pass SSB 6637 which dealt with the issue of invalidity as well as with some other GMA issues. The bill as it passed the Legislature would have:
| Provided that the effective date of a determination of invalidity could not be earlier than 90 days after the date the Board issued its determination. |
| Allowed a city or county to avoid the effect of the determination if it could establish prior to the effective date that it was making "substantial progress" towards complying with the Board's order. The Board was required to hold a hearing on the order prior to its effective date. |
| Provided that a determination of invalidity would only affect preliminary plat and short plat permit applications filed on or after the effective date of the determination of invalidity. |
| Allowed a local government subject to a determination of invalidity entered under the original provisions of ESHB 1724 to petition the Board for a stay of the order of invalidity if it was making "substantial progress" toward adopting plans or development regulations or taking other actions that would not otherwise be invalid. |
| Provided for an independent court review of the Board's legal conclusions. |
| Provided for expedited court review of determinations of invalidity. Footnote18 |
The Governor vetoed the changes to the Board's authority to review and invalidate comprehensive plans and development regulations as well as the change that would have provided for independent court review of the Board's legal conclusions. The provision directing the courts to expedite review of Board decisions invalidating plans and regulations was not vetoed. In his veto message, the Governor requested the Land Use Commission to make recommendations about how "to establish greater certainty in local growth planning and encourage local planning and actions to comply with the requirements and goals of the Growth Management Act." Footnote19
VI. OPTIONS
Determinations of invalidity have been the source of considerable concern in counties where plans and regulations have been appealed. The challenge will be to allow development that is consistent with the goals of the GMA to proceed while protecting against the rush to the permit counter that could result in harm that will "substantially interfere with the fulfillment of the goals" of the GMA. Footnote20
OPTION 1: No action.
Pros:
| Strongly encourages compliance with the GMA by local governments because of the severe consequences of invalidity. |
Cons:
| See Problem Statement in Part III above. There are some problems with the power to invalidate plans and regulations that nearly all agree should be fixed. Not to address these issues may create more pressure for even more drastic changes to the GMA. |
OPTION 2: Minor Changes.
| Clarify that invalidity does not apply to building permits on existing lots or to newly platted lots that vested prior to the date of the Board's order of invalidity. |
| Clarify that plans and regulations need not be fully in compliance with the GMA before a local government can escape from invalidity. Provide for a step-by-step process for local governments to escape from invalidity, similar to what SSB 6637 would have allowed. |
| Require the Board to find that the continued validity of the plan or regulation would cause actual and substantial (not just theoretical) harm before a determination of invalidity could be made that the plan or regulation would "substantially interfere with the goals of [the GMA]." |
| Clarify that the Boards may not issue orders of invalidity as to existing development regulations not under appeal to the Boards if the finding of noncompliance applies to a local government's failure to comply with the GMA by failing to adopt required plans or regulations in accordance with GMA timelines. |
Pros:
| Allows most projects to proceed. |
| Protects widespread continued conversion of rural lands by continuing the moratorium on new subdivision and short subdivision applications. |
| Raises the standard that must be met before invalidity could be found. |
| Limits the use of orders of invalidity to "train wreck" situations and eliminates the use of invalidity as a type of sanction. |
Cons:
| Allows most projects to proceed. |
| May delay the process of complying with the GMA by eliminating the use of invalidity as a sanction for failure to adopt plans and regulations in a timely manner. |
| Does not address the objections of some that the appointed Boards should not have the authority to invalidate ordinances adopted by local elected officials absent court approval. |
| Raises the standard for invalidity and could result in the additional conversion of rural areas to suburban uses. |
OPTION 3: Temporary Invalidity. Make orders of invalidity temporary (and suspend vesting) for 90 days. Allow local governments an automatic opportunity to demonstrate to the Boards (or to the Governor or superior court) that they have addressed the issues that caused the Board to enter the temporary order of invalidity. After 90 days, the Boards (or the Governor or the court) could rescind the temporary order or make it permanent, depending upon whether the actions taken by the local government were determined to be sufficient to allow a finding of noncompliance without sufficient additional evidence that the continued validity of the plan or regulations would substantially interfere with the goals of the GMA.
Pros:
| May speed up the process of complying with the GMA. |
| Would protect the widespread continued conversion of rural lands by suspending vesting during invalidity. |
Cons:
| Does not address most of the problems caused by invalidity. |
| Would not allow sufficient time for a local government to complete the public process that would be necessary to address an invalid plan or regulation. |
| Would not address the objections of some that the appointed Boards should not have the authority to invalidate ordinances adopted by local elected officials absent court approval. |
OPTION 4: Court Approval. Require superior courts, not the Boards, to make determinations of invalidity, based upon an independent review of the Board's legal conclusions and recommendations.
Pros:
| Determinations of invalidity have serious impact on local businesses and tax revenues. |
| A court should make these determinations, not the appointed Boards. |
Cons:
| Court review will take time and is not likely to change the result. In the meantime, more projects would be allowed to vest unless the Board's preliminary determination of invalidity was required to take effect at the time of the Board's order. |
OPTION 5: Go Back to Noncompliance - Permit Activities Continues - Future Projects Must Comply with the Goals of the GMA Until Compliance is Achieved. Require project applications that vest after the date of the Board's order to be evaluated by local governments on a case-by-case basis for compliance with the goals of the GMA until the regulations that were the subject of the Board's order are revised and have been found to be in compliance.
Pros:
| Would be similar to the approach that was used to review shoreline permits in jurisdictions prior to adoption of Shoreline Master Programs. Footnote21 |
| Would also be similar to Oregon's approach. |
| See Option 6 below. |
| Permit activity continues subject to compliance with GMA goals. |
Cons:
| May be difficult for local governments to implement, especially local governments which have not complied with the GMA. |
OPTION 6: Go Back to Noncompliance Only - Permit Activity Continues. Retain the "train wreck" amendments that clarify that an order of noncompliance does not affect the validity of plans and regulations, but eliminate the authority of the Boards to find plans or regulations invalid.
Pros:
| Eliminates the consequences and costs of invalidity. |
| Requires the use of sanctions by the Governor to encourage compliance with the GMA. This would penalize local governments, not builders and property owners. |
Cons:
| Would not encourage compliance with the GMA. |
| Would prolong the rush to the permit counter by allowing development to continue in rural areas that has been found by the Boards to be inconsistent with the goals of the GMA. |
APPENDIX A
ESHB 1724 (1995) AS PASSED LEGISLATURE
Sec. 110. RCW 36.70A.300 and 1991 sp.s. c 32 s 11 are each amended to read as follows:
(1) The board shall issue a final order within one hundred eighty days of receipt of the petition for review, or, when multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated. Such a final order shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to plans, development regulations, and amendments thereto, adopted under RCW 36.70A.040 or chapter 90.58 RCW. In the final order, the board shall either: (a) Find that the state agency, county, or city is in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs; or (b) find that the state agency, county, or city is not in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, in which case the board shall remand the matter to the affected state agency, county, or city and specify a reasonable time not in excess of one hundred eighty days within which the state agency, county, or city shall comply with the requirements of this chapter.
(2) A finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand, unless the board's final order also:
(a) Includes a determination, supported by findings of fact and conclusions of law, that the continued validity of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter; and
(b) Specifies the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.
(3) A determination of invalidity shall:
(a) Be prospective in effect and shall not extinguish rights that vested under state or local law before the date of the board's order; and
(b) Subject any development application that would otherwise vest after the date of the board's order to the local ordinance or resolution that both is enacted in response to the order of remand and determined by the board pursuant to RCW 36.70A.330 to comply with the requirements of this chapter.
(4) If the ordinance that adopts a plan or development regulation under this chapter includes a savings clause intended to revive prior policies or regulations in the event the new plan or regulations are determined to be invalid, the board shall determine under subsection (2) of this section whether the prior policies or regulations are valid during the period of remand.
(5) Any party aggrieved by a final decision of the hearings board may appeal the decision to ((Thurston county)) superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board.
APPENDIX B
SSB 6637 (1996) AS PASSED LEGISLATURE
*Sec. 3. RCW 36.70A.300 and 1995 c 347 s 110 are each amended to read as follows:
(1) The board shall issue a final order within one hundred eighty days of receipt of the petition for review, or, when multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated. Such a final order shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to plans, development regulations, and amendments thereto, adopted under RCW 36.70A.040 or chapter 90.58 RCW. In the final order, the board shall either: (a) Find that the state agency, county, or city is in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs; or (b) find that the state agency, county, or city is not in compliance with the requirements of this chapter or chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, in which case the board shall remand the matter to the affected state agency, county, or city and specify a reasonable time not in excess of one hundred eighty days within which the state agency, county, or city shall comply with the requirements of this chapter.
(2) A finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand((, unless the board's)). In addition, the board may issue a determination of invalidity as part of its final order ((also)) of noncompliance which shall:
(a) Include((s)) a determination, supported by findings of fact and conclusions of law, that the continued validity of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter; and
(b) ((Specifies)) Specify the particular part or parts of the plan or regulation that are determined to be invalid, the geographic area or areas where the determination of invalidity is applicable, if appropriate, and the reasons for their invalidity.
(3) A determination of invalidity shall((:
(a))) not take effect until at least ninety days after the determination of invalidity was made, during which period the board shall review the progress of the county or city. If, after holding a hearing on the matter, the board finds that the county or city is making substantial progress toward adopting a plan or regulations or taking other actions under this chapter, relating to the order, that would not be determined to be invalid under subsection (2) of this section, the board shall extend the ninety-day period for a reasonable period and continue its jurisdiction over the matter. If, after holding a hearing on the matter, the board finds that substantial progress is not being made, the board shall enter an order effectuating the determination of invalidity. The hearing must be held prior to the ninetieth day. Another hearing shall be held prior to the end of any extension granted by the board. Any order effectuating the determination of invalidity shall be prospective in effect and shall not extinguish rights that ((vested)) vest under state or local law before or after the date of the board's order((; and
(b) Subject)) effectuating the determination of invalidity. Any order effectuating the determination of invalidity shall not affect the validity of the comprehensive plan, development regulations, or other actions taken under this chapter, except that any ((development)) application for the division of land under chapter 58.17 RCW, in any geographic area or areas where the determination of invalidity is applicable, that would otherwise vest after the date of the board's order effectuating the determination of invalidity, shall vest to the local ordinance or resolution that ((both is enacted in response to the order of remand and determined by the board pursuant to RCW 36.70A.330 to comply with the requirements of this chapter)) the county or city adopts in response to the order effectuating the determination of invalidity after the board determines that the response would not be invalidated under subsection (2) of this section. Boundary line adjustments that do not increase the number of lots are not affected by an order effectuating a determination of invalidity. The board shall hold a hearing before removing the order effectuating its determination of invalidity.
(4) ((If the ordinance that adopts a plan or development regulation under this chapter includes a savings clause intended to revive prior policies or regulations in the event the new plan or regulations are determined to be invalid, the board shall determine under subsection (2) of this section whether the prior policies or regulations are valid during the period of remand.)) A county or city for which a determination of invalidity was made prior to the effective date of this act may petition the board for a stay of the determination of invalidity, based on a showing under the procedures of subsection (3) of this section that it is making substantial progress toward adopting a plan or development regulations, or taking other actions under this chapter, relating to the order, that would not otherwise be declared invalid under subsection (2) of this section. After holding a hearing, the board shall enter an order rescinding, staying, modifying, or continuing the prior determination of invalidity.
(5) Any party aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board. The court shall conduct an independent review of the board's legal conclusions.
*Sec. 3 was vetoed. See message at end of chapter.
NEW SECTION. Sec. 4. A new section is added to chapter 36.70A RCW to read as follows:
The court shall provide expedited review of a determination of invalidity or an order effectuating a determination of invalidity made or issued under RCW 36.70A.300. The matter must be set for hearing within sixty days of the date set for submitting the board's record, absent a showing of good cause for a different date or a stipulation of the parties.
Governor's Partial Veto Message for SSB 6637
"I am returning herewith, without my approval as to sections 3 and 5, Substitute Senate Bill No. 6637 entitled:
"AN ACT Relating to limitations on growth management hearings board discretion;"
Substitute Senate Bill No. 6637 clarifies the statutes dealing with the Growth Management Hearings Boards.
Sections 1 and 2 of this bill are simple clarifications of current law governing board actions and are not controversial. Section 4 provides for expedited judicial review of board actions in cases in which a board issues a determination of invalidity and such a determination is appealed. While the authority of the legislature to direct the courts to expedite review is not clear, it is reasonable to encourage prompt consideration by the courts of such board actions within their civil dockets given the significant impacts that may be involved in the invalidation of local land use ordinances.
Section 3 of this bill has two major elements, one changing provisions regarding invalidity, the other addressing how courts should review board decisions.
The legislature acted in 1995 to respond to uncertainty regarding the vesting status of projects in jurisdictions in which boards had found comprehensive plans or development regulations out of compliance with the Growth Management Act. Prior to 1995, there was concern that the result might be an effective moratorium on development. The legislature provided that projects vest under a local land use statute, even if it has been found out of compliance, unless and until a board issues a determination of invalidity. Such a determination must meet a higher standard than is needed to find noncompliance. For a board to issue a determination of invalidity, it must find that the continued validity of the plan or regulation would "substantially interfere with the fulfillment of the goals" of the act. After a determination of invalidity, new projects vest under whatever ordinance is eventually adopted in compliance with the act.
Since this change in 1995, there has been significant controversy regarding the use of this authority by the boards. Some have argued that boards have used the authority to respond to repeated refusal by a small minority of local governments to pass statutes that complied with the act. Others have argued that the use of this power has created temporary chaos rather than greater certainty and that the use of this power has altered the "bottom up" nature of growth planning. The legislature responded by revisiting the 1995 sections in this bill.
Substitute Senate Bill No. 6637 requires that when a board makes a determination of invalidity, it must specify the provisions to which the determination would apply and must wait ninety days before effectuating the order. Additional time must be granted to the local government if it is making "substantial progress" toward adopting a plan or regulations.
During this period, all projects vest to the local ordinance which has been found to substantially interfere with fulfillment of the goals of the act. After this period, the board may issue an order effectuating the determination of invalidity. When such an order is issued, it provides that divisions of land vest to new ordinances ultimately found in compliance by the boards. Other development continues to vest to the provisions which have been found invalid by the boards, until new ordinances have been enacted. The concept that projects should vest to provisions of law that substantially interfere with fulfillment of the goals of the act is not wise.
This was an honest attempt to develop a compromise in a difficult area of the law. I commend the legislature for its efforts, but as drafted, Substitute Senate Bill No. 6637 is not without significant flaws.
To permit vesting to a plan or regulation that has been found to substantially interfere with fulfillment of the goals of the act is an incentive for local governments to continue to remain out of compliance with legitimate board orders. Despite the local nature of growth planning, the act reflects statewide concerns. The boards are intended to ensure that local solutions remain within the requirements and goals of the act. If board determinations are ignored, the boards are nothing more than a time-consuming annoyance on the way to court. Meanwhile traffic congestion worsens, sprawl continues, air quality degrades, habitat is lost, the public's ability to pay for infrastructure is strained and frustration mounts.
The section also provides that in appeals of Growth Management Hearing Board decisions, the court is to conduct an independent review of the board's legal conclusions. It is unclear whether this merely clarifies the current court practice of independently reviewing the actions of quasi-judicial boards as to their legal conclusions or whether it directs the courts to grant no deference to the board's specialized expertise. At best, this lack of clarity makes the court's task in reviewing board decisions more difficult than would already be the case. At worst, these provisions render the decisions of the boards meaningless and prolong the resolution of underlying dispute.
I am aware of criticism of a few board actions, but in the vast majority of the appeals brought to the boards, they have been successful in achieving prompt resolution of the issues in dispute. The boards were established to resolve difficult land use planning disputes, including those between local governments, to reflect regional differences, to bring more expertise to these issues, and to resolve issues more quickly than court action would require.
I believe that this provision is a message by the legislature to the boards directing them to use discretion in their authority to invalidate local ordinances. I echo this message. There are some situations in which local actions are so far out of compliance with the requirements and goals of the act that severe action is appropriate. However, overuse of this authority will only serve to weaken both the authority of the boards and the act itself.
I am requesting that the Land Use Study Commission, established in 1995, make recommendations to the 1997 Legislature and to the governor proposing how to clarify and simplify the law in this area. Such recommendations should propose how to establish greater certainty in local growth planning and encourage local planning and actions to comply with the requirements and goals of the Growth Management Act.
Section 5 of Substitute Senate Bill No. 6637 recognizes the broad range of discretion that may be exercised by local governments under the Growth Management Act. In the act, the legislature specified a set of goals and a related series of procedural and substantive requirements towards achieving them. While requiring compliance, the legislature recognized the diversity of the state and the power inherent in local land use decision-making. Consistent with these requirements, local governments retain broad discretion.
However, local discretion must be exercised in a manner that is consistent with the requirements of the act. The boards have the difficult responsibility of interpreting the legislative meaning of the act in specific local disputes without substituting their judgment for that of local governments. This is among the most difficult challenges facing the boards and local governments.
Section 5 of this bill states that the boards are not to prioritize, balance or rank the goals of the Growth Management Act. This provision appears to prevent the boards from evaluating whether local governments have been guided by the goals or whether, in meeting the requirements of the act, they have reflected the value content of the goals. Such a limitation would reduce the boards to a purely procedural role. If this provision were to become law, most local disputes would require court action for resolution. The boards can only function effectively if they have the authority, when resolving disputes, to ensure that local governments are complying with the requirements and not substantially interfering with fulfillment of the goals of the act.
This section also clarifies that in cases heard by Growth Management Hearings Boards, the burden of proof is on the petitioner. This principle was understood at the establishment of the boards. The boards have adopted rules which include this standard.
Section 5 of Substitute Senate Bill No. 6637 clarifies the standard of review to be used by the boards to judge cases. In matters of law, the bill directs the boards to find compliance unless they find that a state agency or local government erroneously interpreted the chapter. In issues of fact, compliance is to be found if the action of the state agency or local government is not supported by evidence that is substantial when reviewed in light of the whole record before the board.
In reviewing legal questions, the boards must determine whether local governments have been right or wrong in their legal interpretation of the provisions of the Growth Management Act as evidenced by their application of the act. The standard for reviewing questions of fact directs the boards to defer somewhat to local governments as long as they present enough evidence to allow a reasonable person to act. This is similar to the direction by the boards to local governments to "show your work", stating that local governments deserve deference if they establish a rational basis for making complex land use decisions.
I believe the boards should grant deference to local governments in how they plan for growth consistent with the requirements and goals of the act. Local comprehensive plans and development regulations require local governments to balance priorities and options for action in full consideration of local circumstances. While the act requires that local action take place within a state framework, the local land use process is not aimed at perfection but at allowing local communities to make choices about their future.
The legislature attempted to clarify the standard that boards must use to resolve disputes between local governments and affected parties. With one exception, I believe that they succeeded. However, the prohibition against board action regarding the goals of the act appears to prevent the boards from ensuring that the goals have their intended effect. I cannot approve this. After six years, implementation of the act is forcing us again to consider how to maintain local control within a framework of state goals and requirements. In many jurisdictions, plans have been adopted and many are fully involved in implementing their plans. In these jurisdictions, we can see the results of good planning. But in some jurisdictions, the distance between traditional development patterns and practices and the dramatic changes required by the act have divided communities and resulted in angry disputes between local governments and the boards.
People acting in good faith have come to very different conclusions about how best to manage growth. The state must revisit the issue of how to resolve these disputes. I am requesting that the Land Use Study Commission make recommendations to the legislature and to the governor regarding improvements to our dispute resolution structure.
For these reasons, I have vetoed sections 3 and 5 of Substitute Senate Bill No. 6637.
With the exception of sections 3 and 5, Substitute Senate Bill No. 6637 is approved."
The Growth Management Act was enacted in 1990. The Boards were added in 1991. See RCW 36.70A.250 - 340.
The standard of review for legislative acts is "arbitrary and capricious."
Plans and development regulations are presumed valid upon adoption. RCW 36.70B.320. Cities and counties may issue permits pursuant to newly adopted regulations as soon as they become effective. Appeals must be filed within 60 days. RCW 36.70A.290. This appeal deadline is long after the effective date of the newly adopted plans or regulations. The Boards then have 180 additional days to issue their decisions. This means that well over 200 days may pass between the time the regulations are adopted and the date the Board issues its decision.
Washington has one of the most liberal vesting rules in the country. Vesting under Washington law occurs at the time a complete application for a building permit is filed (RCW 19.27.095) or at the time a complete application for a subdivision or short subdivision is filed (RCW 58.17.033). Local governments often provide by ordinance for vesting for other types of land use permits.
It was not clear at that time whether sanctions would be used to encourage compliance.
It was widely assumed that determinations of invalidity would be rarely used by the Boards and, if used, would be limited in their application.
It was also widely assumed that following an order of invalidity, a local government would, and could, quickly "fix" the perceived problem. I do not recall any discussion, at the time, as to what might occur if the local government failed to respond quickly to a determination of invalidity.
RCW 36.70A.330(1). Counties were also allowed to streamline the public participation process. RCW 36.70A.140.
Western Board (Island , Skagit , Whatcom , Jefferson , and Pacific Counties), Eastern Board (Chelan County), and Central Puget Sound Board (Kitsap County). See Appendix C for a summary of these cases.
But see discussion in Part IV below regarding Section 4 of SSB 6637 which provides for expedited court review of a determination of invalidity.
The amendment to RCW 36.70A.300(5) contained in Section 3 of SSB 6637 would have provided for independent review of the Boards' legal conclusion. The Governor's veto of section 3 of SSB 6637 also deleted this provision. A recent King County Superior Court decision rejected the CPSGMHB order invalidating part of King County's Comprehensive Plan, perhaps indicating the courts will in fact give orders of invalidity close scrutiny.
Friends of Skagit County, et. al. v. Skagit County, et. al., WWGMHB No. 95-2-0065 (Second Order Re: Modifying or Rescinding Invalidity & Finding of Continued Non-Compliance, August 28, 1996).
"If the ordinance that adopts a plan or development regulation under this chapter includes a savings clause intended to revive prior policies or regulations in the event the new plan or regulations are determined to be invalid, the board shall determine under subsection (2) of this section whether the prior policies or regulations are valid during the period of remand." RCW 36.70A.300(4).
"The provisions of RCW 36.70A.330 require us to reconsider our Final Order and make a determination of whether invalidity should be imposed. They also provide us authority to review existing development regulations regardless of whether those regulations were adopted pursuant to RCW 36.70A." Whidbey Environmental Action Network v. Island County, WWGMHB 95-2-0063 (1995) (Compliance Hearing Order, December 19, 1995) at p. 8. In two subsequent decisions, the Western Board has affirmed this authority. See, Friends of Skagit County, et. al. v. Skagit County, et. al., WWGMHB No. 95-2- 0065 (Order 2/7/96) and Whatcom Environmental Council v. Whatcom County, WWGMHB No. 94-2-0009 (Third Compliance Order, March 29, 1996). The Central Board has also signaled that it believes it may have similar jurisdiction, although it has not yet been directly presented with the issue. Vashon-Maury et al. v. King County, CPSGMHB No. 95-2-0008 (Final Decision and Order, October 23, 1995) at paragraph 442. "Thus, the Board would have jurisdiction to determine whether prior policies and regulations adopted under the authority of, for example, Chapter 36.70 RCW, would substantially interfere with the fulfillment of the goals of Chapter 36.70A RCW and, if such was the case, could determine them to be invalid for the period of remand."
RCW 36.70A.300(2)(a) The order of invalidity shall "Be prospective in effect and shall not extinguish rights that vested under state or local law before the date of the board's order...."
Whidbey Environmental Action Network, WWGMHB No. 95-2-0063.
Friends of Skagit County, WWGMHB No. 95-2-0065
Secs. 3 and 4, SSB 6337 (1996 Legislature). Attached as Appendix A.
Veto message, SSB 6637. Attached as Appendix B.
RCW 36.70A.300(2)(b).
RCW 90.58.140(2)(a).