ISSUE PAPER #7

TRANSITION RULES

I. BRIEF STATEMENT OF THE ISSUE

This issue paper addresses the authority of local government, under the GMA, to establish rules that allow for the equitable transition from pre-GMA to GMA planning policies and development regulations.

II. BACKGROUND

The traditional source of legal authority for planning and the regulation of land use and development is the police power. Legally, planning and land use regulation is limited by constitutional requirements i.e. due process, equal protection and limitations on taking of private property for public use. Common law doctrines of equity such as reliance, estoppel and latches also play a role shaping the scope and form of land use regulation. All of these legal rules and limitations are intended to provide protection to the rights of the individual in a regulatory system that focuses on realizing the rights of the general public. Local elected officials often see their job as one of ensuring that plans and development regulations fairly and equitably balance individual and public rights.

A. Pre-GMA

Traditionally, the political test for fairness and equity applied by local elected officials has been more liberal, affording individuals and property owners more "rights" than may be required by strict adherence to the legal rules, standards, or doctrine. This can be perhaps best illustrated by our often lamented preoccupation with process. Notice requirements and opportunities to speak at project hearings often go well beyond due process requirements. In turn, it is also reflected in the Washington's statutory and court-made doctrine of vested rights. In short, the political process has tended to provide more "protection" to the rights of individuals and property owners than is required by constitutional and equitable rules of law.

This dichotomy between law and policy has been a continuing source of tension between those seeking planning and land use decisions that they believe will realize "public" benefits and those trying to protect private rights. A variety of techniques have been used. Protection of existing uses; relaxed rules on nonconforming uses; grandfathering of historic development patterns; and, delaying the effective date of regulatory changes all have been used extensively by local government as devices to ensure that the "rights" of individuals are protected when planning policies and land use regulations are changed.

B. Post-GMA

Implementing the GMA requires many local governments to change radically the way planning and land use decisions are made, i.e. shift the balance more toward the "rights" of the general public. This for many is the politically correct way to view the transition issue. For others, changes that result from implementing the GMA are occurring too fast and going too far -- spawning a range of actions from the property rights ballot measure; to protective incorporations; to movements to form new counties; to political campaigns to elect or unelected pro- and anti- GMA elected officials. Pre-GMA planning laws made extensive provision for notice, hearings and public process and also expressly required local procedures for variances and nonconforming uses. In contrast, the GMA is much briefer, providing Property Rights and Permits planning goals (RCW 36.70A.020(6) & (7) and requiring the Attorney General to establish, and all local governments to use, a checklist to ". . . assure that actions [taken under the GMA] do not result in an unconstitutional taking of private property." RCW 36.70A.370. The GMA contains no express provision allowing local government to adjust or modify plans and development regulations to soften or ameliorate the impact on individuals of changing standards.

III. DISCUSSION OF THE ISSUE

Many of the GMA changes currently being considered by the Commission address, in part, transition issues. See for example, the rural, standard of review and invalidity issue papers. However, none address squarely the authority of local government to adjust the impact of GMA plans and development regulations on individuals and property owners.

The Commission heard from many people concerned about the changes that result from GMA implementation. For some they are not happening fast enough. However, for most who have spoken to the Commission, Growth Board rulings do not allow local government sufficient flexibility to address hardships caused by the transition from old to new rules. Examples include the owner of the five acre lot surrounded by very small waterfront lots who now may not subdivide his lot to match the size of the surrounding lots; Port Districts who own existing industrial zoned property adjacent to airports located in rural areas; and owners of 1 to 2 acre lots they thought were rural in character and now are told they are nonconforming urban lots.

A. Growth Board Decisions

Both the Western and Central Puget Sound Growth Boards have addressed directly the extent to which past or historic patterns of development can influence current planning decisions. Both Boards have made it clear that the GMA allows little local variance in how quickly the rules must change. Perhaps the most succinct statement comes from the Western Board, "To paraphrase Bonnie Rait [sic], we cannot change the past but we can leave it behind." Jefferson County IUGA Decision at page 574 (8/10/94). The Central Board, with less brevity, reached the same conclusion,

No county or city works with a blank slate. However, acknowledging the present day consequences of past land use choices is not a license to repeat the mistakes of the past. (Pierce County IUGA Decision at page 474, (7/15/94)

 

More recently the Central Board again addressed the issue of transition striking down Pierce County's recognition of certain existing uses and historic development patterns in its rural area. After discussing Washington law on nonconforming uses, the Board observed that ". . . under the common law, it is up to the judgment of the individual local authority to decide whether or not nonconforming uses may continue, and if so, to what degree they may be extended or expanded." PNA v. Pierce County, 95-3-0071 at pages 24-25. However, the Board concluded that the GMA ". . . significantly changed the landscape by creating further requirements that comprehensive plans and implementing development regulations must satisfy. Based on this premise, the Board found that allowing the expansion of certain types of existing uses would permit new urban development in rural areas -- thereby failing to comply with RCW 36.70A.440(1) and RCW 36.70A.020(1) and (2). PNA at page 25.

B. Local Efforts to Establish Transition Rules

Virtually every local government has established rules regarding non-conforming uses and variances. Many have established reasonable use exceptions and exempted certain activities for some development regulation requirements. Recently, one county has expressly authorized some rural lot owners, within a limited period of time, to further subdivide their property. Believing that policy authority was needed, King County addressed the transition issue directly in its Countywide Planning Policies. See Attachment A.

C. Selected References

Much has been written over the years on the merits and demerits of transition rules. See Brown, "The American Law Institute Model Land Development Code, The Taking Issue and Private Property Rights," ULI, 1995, for a discussion of the issue and how the model code addresses takings and nonconforming uses. Land use law treatise writers, (Anderson, Williams and Rathkopf) all devote multiple chapters to the subject.

More recently, the American Planning Association has commissioned specific scholarly research on takings. The product is the thoughtful paper by Mandelker, Strong and Kelly, "Good Planning, Consistent Regulation and Fair Decision Making: A Prescription for Avoiding Taking Challenges." For similar ideas, see also Gary Pivo's 1995 paper, "Fair and Balanced Approaches to the Property Rights Issue in Washington State."

IV. OPTIONS

Option 1: No Action

Pro

• Achieves GMA implementation quickly with little local variation.

Con

• Reinforces efforts to repeal or weaken the GMA as well as proposals to "opt-out."

Option 2: Modify the Planning Goals for Property Rights and Permits to Include Clear Requirement for Equity and Fairness

Pro

• Allows local government to consider equity and fairness as a goal.

• Helps restore public confidence in the GMA.

Con

• May not be sufficient by itself to give desired flexibility.

Option 3: Add a New GMA Section Authorizing Local Government to Adopt Transition Rules Similar to King County Countywide Planning Policies

Pro

• Expressly authorizes local government to establish special transition rules.

Con

• GMA implementation will occur more slowly with greater local variation.

Option 4: Add a New GMA Section That Makes Clear the Extent to Which the GMA Can Affect Existing Uses

Pro

• Provides uniform treatment of existing uses state-wide.

Con

• One size does not fit all circumstances, some local governments may want to transition quickly, some more slowly.

ATTACHMENT A

B. Implementation and Transition

Countywide Planning Policies are intended to affect directly only local comprehensive plans. However, the GMPC recognizes that, indirectly, Countywide Planning Policies will ultimately have a broad ranging impact on zoning, existing uses, lots and structures throughout the adoption of development regulations that are consistent with local comprehensive plans. It is not possible to fashion on a countywide basis rules of transition that will account for these impacts. Cities and the County need flexibility to adopt rules that govern transition issues allowing local implementation to occur in an orderly, fair and predictable manner. Anticipating, understanding and providing reasonable rules to govern the conversion from old to new GMA plans and development regulations is best addressed in local plans and development regulations.

TP-1. All jurisdictions shall implement these countywide planning policies through adoption of comprehensive plans. Countywide planning policies will affect existing legal zoning uses, structures and lots only through locally adopted development regulations and consistent with adopted comprehensive plans.

TP-2. Local plans and development regulations may provide rules of transition, governing such matters as zoning and existing legal uses, structures and lots, including pending applications for development approval.