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Table of Contents
Introduction:The state's Growth Management Act is now six years old. The dispute resolution process established in 1991 has now been fully tested1. Since their inception, there have been over 320 cases filed with the three Growth Management Hearings Boards (Boards). The Boards have issued over 170 written decisions. A summary of Board actions is attached to this memorandum. In recent years, there has been increasing controversy surrounding the Boards and their decisions. The most recent issues have involved the use by the Boards of new authority granted them by the 1995 Legislature to invalidate parts or all of a comprehensive plan or development regulations. The most dramatic decision involved the Central Puget Sound Board's invalidation of Kitsap County's entire comprehensive plan. The Central and Western Boards have each invalidated parts of other county comprehensive plans or development regulations. The criticism that has been leveled at the Boards is that they are substituting their judgment for that of local elected officials. There is also a criticism that the Boards are not honoring the statute's presumption of validity for locally adopted plans and regulations. Those who support the Board actions argue that the Boards are just filling in details in a statute that is full of ambiguities and vagueness. They also suggest that the problems have come when local elected officials either do nothing, or merely attempt to meet the minimum requirements of the GMA and are unable to support their decisions with information. As a result of the controversy surrounding the Boards, the 1996 Legislature passed SSB 6637. The Governor vetoed two sections that would have restricted the authority of the Boards to invalidate local comprehensive plans and development regulations and would have modified the standards by which the Boards review challenges to local plans and regulations. In his veto message the Governor asked the Land Use Study Commission to review these issues, with an emphasis on ways to provide greater certainty in the local planning process and improving the dispute resolution process. [ Return to Table of Contents ] Background:The 1991 Legislature passed a carefully constructed compromise to manage growth and create incentives for compliance. Passed just after the defeat of Initiative 547, which had strong state controls and authority, the 1991 legislation attempted to achieve a balance that provided for "bottoms-up" planning and timely dispute resolution. It also included enforcement provisions for local governments that did not comply with the Act. The compromise emphasized local "presumption of validity", a weak state role with no standard setting or approval authority, regional hearings boards to resolve disputes, fund availability for those who met deadlines, and gubernatorial sanctions. At the time, there was considerable discussion about the proper state role in providing guidance to local governments. The compromise allowed the Department of Community, Trade and Economic Development to issue procedural criteria describing the planning elements that would meet the goals and requirements of the Act. It also allowed state agencies to challenge local plans through the hearings board. Although, the Act did provide for enforcement authority through the withholding of funds and sanctions, the primary interpretive authority has come to rest on the three regional hearings boards. The Boards were given the authority to determine whether plans and development regulations were out of compliance with the GMA. In addition, they were also given the authority to recommend that the Governor impose sanctions for jurisdictions that fail to come into compliance with the GMA. The Boards have three members appointed for staggered 6 year terms by the governor. With a law that has many requirements, yet many gray areas, the boards have had to walk a line of providing guidance without laying down the law. Some have argued that they are issuing "bright line" tests and thereby exceeding their authority. Under the GMA, only "(a) The state, or a county or city that plans under this chapter; (b) a person who has participated orally or in writing before the county or city regarding the matter on which a review is being requested ; (c) a person who is certified by the governor within sixty days of filing the request with the board; or (d) a person qualified pursuant to RCW 34.05.530 [Administrative Procedures Act]" may file a petition for review. RCW 36.70A.280(2)2. A state agency may file an appeal only upon approval by the Governor. RCW 36.70A.310. An appeal must be filed within 60 days after the local government takes the action which is being appealed. RCW 36.70A.290. A Board is required to issue its decision within 180 days after a petition is filed. If there are multiple appeals which are consolidated, the decision must be issued within 180 days after the date the last petition was filed. RCW 36.70A.300. Board hearings are conducted as quasi-judicial proceedings under the Administrative Procedures Act. RCW 36.70A.270. These are relatively formal proceedings, although the Boards have offered mediation services to assist parties in resolving disputes before they get to a hearing. The local government's action is presumed valid under the GMA. "The board shall find compliance unless it finds by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter [GMA]." RCW 36.70A.320(1). Prior to the 1995 Legislature, a Board that determined a city or county was not in compliance with the GMA, had two options on how to address the non-compliance. It could remand the plan or regulation to the city or county with directions that it be brought into compliance. The Board may also ask the Governor to impose sanctions if the local government has failed to comply with the GMA3. In 1995, the Governor's Task Force on Regulatory Reform recommended that the Boards be given the authority to determine that part or all of a comprehensive plan that is out of compliance with the GMA is also invalid. The recommendation was intended to clarify the effect of a board determination of non-compliance. Findings of invalidity are prospective in effect. The recommendation was made in response to concerns about the effect that a finding of non-compliance would have on vesting. The Task Force concluded that establishing clear rules would be beneficial for local governments, the development community, and the public. The resulting recommendation was a compromise that provided certainty to the development community and recognized the presumption of validity that local plans are to be accorded. The Legislature adopted the Task Force's recommendation as part of ESHB 1724 in 1995. Under the new provision, a plan or development regulation is invalid only if the board makes specific findings and determinations. It must also specify the part of the plan that is invalid. Project applications filed prior to the Board's order vest under the plan or regulations adopted by the local government, even though it is determined to be not in compliance with the GMA. However, project applications filed after the Board's order vest under the plan or regulations that is the Board determines complies with the GMA. RCW 36.70A.300. [ Return to Table of Contents ] Issues:SSB 6637 was adopted as an attempt to address some of the issues that have generated the greatest controversy surrounding the GMA. The authority given to the Boards to invalidate plans and regulations has raised a mixture of practical and policy questions. On the practical level, there are questions about the impact of invalidating development regulations on ordinances adopted prior to GMA or on applications or decisions made by a local government prior to the Board's decision. At the policy level, there are questions about whether the Boards have been substituting their judgment for that of local elected officials. There has also been criticism of the GMA, that it attempts to impose a single planning philosophy on all areas of the state. The most common refrain heard by the Commission in a series of public meetings has been that "one size does not fit all." In the effort to address these issues, the legislative focus has frequently been leveled at the entity which is forcing decisions to be made, the Growth Management Hearings Boards. Although there may be some problems with the way Boards' are structured, there are underlying problems with the GMA. The Boards are quasi-judicial bodies that rely on litigation to resolve disputes. This is not the best means to resolve public policy disputes. Litigation requires strict rules of evidence. It generally limits who may participate. It is expensive. And it results in winners and losers, rather than allowing for accommodation of competing interests. The Boards do not have the authority to make policy decisions for local governments. Their role is to interpret the law. During its first six months, the Land Use Study Commission has heard from a variety of concerned citizens and groups and organizations with an interest in land use issues. There were a number of themes that emerged from these comments. The Governor's veto message to SSB 6637 touches on these same issues. In responding to the Governor's request, the Commission will also be addressing issues which are at the heart of many of the concerns expressed about the GMA. [ Return to Table of Contents ] 1. Create Certainty for Planning DecisionsOne of the biggest problems facing local governments planning under the GMA is that there is little guidance on what they must do to comply with the Act. All local governments are required to designate certain resource lands and designate and protect critical areas. In addition, cities and counties adopting comprehensive plans under the GMA are required to include certain elements in those plans. There is a possibility that the most difficult aspects of implementing the GMA have passed and that in the future there will be fewer controversies. However, there are a number of jurisdictions which have yet to grapple with some of the basic decisions required by the GMA. In addition, GMA is not a static process. Through a combination of annual amendments and periodic plan review, counties and cities will need to revisit many of the issues that have bedeviled them in the first round of GMA planning. There will be significant benefit to jurisdictions still proceeding through the first phase, as well those who will be entering subsequent review phases in creating greater certainty. The Department of Community, Trade, and Economic Development (DCTED) has limited authority to adopt rules to implement the GMA. It may adopt "procedural criteria to assist counties and cities in adopting comprehensive plans and development regulations that meet the goals and requirements of this chapter. These criteria shall reflect regional and local variations and the diversity that exists among different counties and cities that plan under this chapter." RCW 36.70A.190(4)(b). In addition, DCTED may adopt guidelines "to guide the classification of: (a) Agricultural lands; (b) forest lands; (c) mineral resource lands; and (d) critical areas." RCW 36.70A.050(1). " The guidelines ... shall be minimum guidelines that apply to all jurisdictions, but also shall allow for regional differences that exist in Washington state. The intent of these guidelines is to assist counties and cities in designating the classification of agricultural lands, forest lands, mineral resource lands, and critical areas ...." RCW 36.70A.050(3). Because these rules apply only to designation, GMA provides local governments no formal guidance from the state on recommended approaches or standards for the development regulations to protect designated areas. The Boards serve as the mechanism for assuring that cities and counties planning under the GMA comply with the goals and requirements of the law. The same lack of direction to local governments on how to accomplish their duties faces the boards in determining whether a local government has met its obligations under the act. There are several different approaches to resolving the question of certainty. They range from limiting the GMA to a procedural statute to setting clearer state guidelines with certification by state agencies that the guidelines have been met. The following questions will help lead to answers of appropriate solutions for providing greater certainty to local governments in their GMA planning process.
[ Return to Table of Contents ] 2. Flexibility and EquityThe predominant comment at the Land Use Study Commission's public hearings was that "one size does not fit all." This statement was made by local elected officials, local business interests, and local community and environmental activists. This comment has application not only in respect to the relation between state requirements and local policy, but also in the relation between local rules and the permit process. There are some who argue that at least part of the recent debates over property rights stems from inflexible rules that do not take into account individual variations and circumstances. If local rules provided greater flexibility and allowed for the relaxing of certain requirements that are not critical elements of the land use regulatory scheme, the harsher impacts of the rules on individual property owners could be mitigated. One common complaint about the impact of the Growth Management Act is that some landowners who had anticipated that they would be able to develop their property in a certain manner and considered their land as a retirement investment may be foreclosed from that type of development because of new regulations, determinations of lack of available water supply, or capital facility financing constraints. In other instances, the effect of regulations may limit the intensity of development on a particular parcel, particularly farmland where more than one house is desired to accommodate farmers and their families. An in other cases, a particular parcel may essentially become an island in the midst of more intense development because the property owner may not have vested under rules in effect prior to the adoption of a comprehensive plan and development regulations intended to prevent sprawl in rural areas. The property rights initiative was, in part, a reaction to these types of situations. These types of cases have also raised concerns about the impact of the GMA on individual property owners and has fueled much of the opposition to the GMA in some areas. There may be ways in which the impact of the regulations on individual parcels can be mitigated to address individual circumstances where a particular property owner is unduly burdened or where the overall goals of the GMA would not be affected. In the Commission's public hearings, the management of agricultural lands and rural areas was commonly cited as one in which state law is perceived to mandate rules that will drive agriculture out of business by forbidding activity necessary for the preservation of agriculture and rural development. The Boards have noted the lack of guidance given by the GMA on rural lands, and have tried to provide greater certainty by establishing "bright line" density rules for residential development, as well as other guidelines to prohibit urban growth in rural areas. The GMA is also silent on the issue of suburban development. In many cases, the Commission heard a desire to allow more flexibility to local governments. Some counties have "rural settlements" that are not in established urban growth areas. Prior to GMA, some counties developed award-winning plans that they believe achieve the GMA goals, but that do not fit the GMA model of compact UGAs surrounded by rural resource lands. Some counties and cities advocate explicit inclusion in the GMA of "suburban" levels of development. At the same time, there is concern that without some state guidelines, there would be a return to sprawl. Also counties must service rural areas where growth may still occur, while cities may annex the tax base that is encompassed in an adjacent UGA. One idea suggested to the Commission was the development of outcome based or performance based guidelines. Rather than directing a particular means of accomplishing a valued objective, the entity establishing the guidelines would establish the objective desired with sufficient detail to allow objective measurement of whether it was being achieved.
[ Return to Table of Contents ] 3. Dispute resolution and ComplianceThe GMA's dispute resolution process is largely directed at resolving disputes after a local government has taken action. The GMA provides little in the way of direction to local governments to help them prior to the point that differences of policy become disputes before the Boards. Early and meaningful public participation is an important means to avoid costly dispute resolution processes. One criticism of the current GMA dispute resolution process is that it imposes too few conditions on who may appeal a local plan or regulation to the board. The 1996 Legislature changed the standing requirements slightly. There are also suggestions that a person should be limited to an appeal of those issues on which he or she commented, or that he or she be prohibited from raising new issues in the appeal unless they are directly related to the issues commented on before the local government. Others argue that if an element of the plan or regulation was changed after the person submitted his or her comments, this limitation would be unfair. The Boards have made some efforts to encourage mediation of cases before the hearing. This presents problems because not all those with an interest in the issue may actually be a party before the board. There are also questions about the standards applied by the Boards to determine whether a plan or regulation complies with the GMA. SSB 6637 proposed changes to these standards in an attempt to require more deference to local decisions. At the direction of the Governor, state agencies have tried informal, facilitated, negotiations with local governments in the hope that issues could be resolved more quickly and inexpensively than via the Boards. However, to preserve the option of appeal should negotiations prove unsuccessful, GMA requires that an appeal be filed within 60 days. That filing starts a Board calendar specified, without flexibility, by GMA, and therefore the less formal negotiations must be completed within a narrow time window. This has proved frustrating in situations where a few more weeks of negotiation might have been sufficient for success but where the Board was forced to issue a decision or order. An important ingredient in any dispute resolution process is the enforcement mechanism. The current mechanisms for encouraging compliance with the GMA are viewed by some as inadequate. These tools come into play when a local government refuses to comply with a legitimate Board order and when a court has not intervened to stay the effectiveness of the order. The sanctions alternative is a blunt tool that may be useful in only limited circumstances. Invalidity orders may prove to be more effective, but they have unplanned side effects, including sharp restrictions on local development while the dispute continues. Some local governments do not believe they are reaping the rewards of having completed the planning process or that enough incentives exist to finish the process.
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End Notes[ Return to Table of Contents ]
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