The Boards believe that there are circumstances where it would be helpful if the time period for issuing opinions could be extended. There have been some circumstances where a Board has had to issue a decision when the parities might have been able to work out a satisfactory agreement with a little more time.

Even if there is an emphasis on increasing mediation, there are likely to be additional disputes for the Boards to consider. Mediation will not eliminate all of the cases.

The Central Puget Sound Growth Management Hearings Board has jurisdiction over 50% of the state's population, but less than 10 % of its land base. It has only four counties, but has 75 cities and hundred's of special purpose districts. Washington has the smallest land area of the Western states, but has the second highest rate of population growth.

There has been much criticism of the 20 year planning horizon the GMA requires. It is important to remember that in the last six years the state has had a population increase of more than 650,000 people. There is also a trend of an increasing number of people moving into the cities, reversing some of the recent trends. The impacts of this level of growth is one of the reasons the Commission is the fourth review effort of growth management in the last eight years.

The Commission's charge recognizes that GMA is the essential vision and that there is not a legislative desire to change directions. The task for the Commission is to determine how things are working and recommend needed adjustments.

The GMA is working essentially as advertised. There is a need to look not just at anecdotes, but also at statistics showing overall trends. There is also a need to look at the experience of other states that have adopted similar types of growth management legislation, such as Oregon and Florida. One thing these states show is that the issues Washington is currently facing are constant, that they will not disappear with time.

Much of the opposition to the GMA is from people who prefer the old way of doing things and are not now able to do what they used to be able to do. The emphasis on the GMA of linking planning with infrastructure has made it much more difficult to continue with past types of development.

The Boards are also working more or less as expected. They are answering the questions put to them. They must harmonize inconsistencies in the statutes, fill in gaps, address ambiguities, and interpret and clarify GMA's provisions. The Boards do not see themselves as policy makers. The Boards are able to issue decisions in a timely manner, unlike the judicial system. They reflect the regional diversity of the state. The Boards serve as the place where the tension between substantive and procedural concerns and between compelling state interests and local discretion are resolved.

The Central Board has encouraged the use of mediation at every opportunity. There have been only a few cases where the parties have shown a willingness to use it. The ability of the parties to agree to a 30-day extension to complete ongoing mediation might be helpful in some cases. It is important to remember that GMA appeals involve important public policy issues. There should be some concern that mediation might result in brokered settlements that do not involve all of the interested parties.

Invalidity orders have been issued by the Central Board in only two cases. One involved a small number of site specific rezones out of a total of 40,000 parcels affected by the comprehensive plan. The other was the invalidity of Kitsap County's comprehensive plan. The Central Board has used invalidity sparingly because the Board is aware that it is a powerful tool that has significant impacts.

One source of some of the current debates over the GMA may be the fact that the "bottoms-up" nature of the GMA has been misunderstood. Washington's statute is different from Oregon and Florida which have a much stronger state role than does Washington, but there is a state role even in Washington. Limiting the Boards to reviewing procedural issues will eliminate the ability of the state to assure that the substantive elements of the GMA are being followed.

The Eastern Board is interested in being able to "toll" the clock for issuing decisions when the parties to a case before the Board are in the midst of mediation. There have been several cases where the parties wanted additional time, but the Board was unable to give it. The Eastern Board brings up the question of mediation early in the appeal process by asking the parties the address the question even before the pre-hearing conference. The Board does not engage in mediation at the pre-hearing conference, but it has been able to facilitate discussions between the parties. In a number of cases, the Board has had petitions withdrawn as a result of that process. One should also remember that not all cases can be mediated.

The Boards do serve an important function. If they are eliminated, the Courts will be asked to decide the same issues. So far, there have been no judicial decisions on any of the cases that were appealed from the Eastern Board. One case has been before the court system for several years.

The Counties served by the Eastern Board are generally poorer and less populated than the counties served by the other two Boards. The cost of pursuing appeals can be expensive for a number of these jurisdictions. There may be some value in requiring a party who files an appeal to the Board or to court to file a bond to assure that the appeal is not frivolous and that if the party loses it will pay expenses. Many counties have ended up spending money to pay for the cost of appeals that could be better spent on planning.

There have been over 100 petitions filed with the Western Board. The Western Board has issued invalidity findings in five cases, which is only a small proportion of the cases which have come before the Board. The issues over which invalidity has been found deal with forest lands, critical areas, and the appropriate type of development outside of urban growth boundaries.

Only one judicial opinion interpreting a Western Board case has been issued in four years and it dealt with a procedural issue. The judicial system is not geared towards resolving issues in a timely fashion. By the time the courts get around to issuing decisions, most local governments will have moved on to the next stage in the planning process, making the decision in many ways irrelevant.

The three counties that have been affected by Western Board determinations of invalidity have had some common themes. None of three met the July 1, 1995 deadline for adopting a comprehensive plan under the GMA. Each has had problems with limiting development activity outside of the UGA. The GMA is relatively clear that urban growth must be limited to within the UGA. This is the most tax efficient way to provide infrastructure.

The three counties had opportunities to bring their pre-GMA zoning ordinances into compliance with the GMA, but in each case the county did not try. In trying to give the counties more time, the Board may have made things more difficult. The Island County planning director has said it would have been better if the Board had made an immediate decision, rather than prolonging the process. One result was a flood of applications from people trying to vest under the old rules that are not in compliance with the GMA but which had not been found invalid. Skagit County's reaction to an initial Board determination of noncompliance was to repeal its interim ordinance just prior to the hearing. Whatcom County merely readopted its existing zoning for areas outside the UGA, with no attempt to bring it into compliance with the GMA. The effect was not only to allow urban and suburban growth outside the UGA, but actually to encourage it.

1. The Chair asked what techniques the Boards use to encourage mediation. She also asked what limitations, if any, the Boards would recommend on allowing an extension of the time to issue a decision when the parties are in the midst of mediation. With respect to question of extending the time for issuing decisions, Ms. Wall said that all parties should have to agree to the extension of time and that there should be on outside limit on how long the case could be extended. With respect to the way the Boards handle mediation, she noted that any participant in the mediation should be able to exit the process at any time.
   
2. The Chair asked whether there disputes between local governments should be handled any differently than disputes between a governmental entity and a private party. Ms. Wall said she did not think so. Mr. Eldridge suggested that there would be some benefit of providing training to local governments in how to resolve disputes before they get to the Boards. He suggested this might be done by DCTED in conjunction with the city and county associations.
   
3. The Chair asked who should conduct any mediations. She noted that there had been some comments to the Commission suggesting that it was inappropriate for Board members to act as mediators. Mr. Eldridge said that he understood the concerns some might have about having Board members mediate cases. He noted that the parties can always arrange for another mediator, although the Boards do provide an advantage because they are free. Mr. Eldridge also noted that the parties generally share the costs in those cases where there is a fee. Ms. Wall said that the National Judicial College believes there is no reason for a judge not to act as a mediator. She said the Boards, however, thought this was inappropriate and would only act as mediators in other regions.
   
4. Mr. Dearborn noted that most mediations require the decision-maker to be at the table. He asked how the Boards handled cases where the a local legislative body, such as a city or county council, was involved in the negotiations. He said in those cases, the local officials would still have to go through the public process to adopt the agreement. Ms. Wall said that in those cases the parties are only under an obligation to go back and advocate for the agreement. She said the Eastern Board has had some instances where this situation arose and that there was a successful outcome.
   
5. Mr. Roseberry asked about the Boards' approach to the designation of agricultural land. He noted that it is difficult to know what land will be useful for agriculture in the future, due to changing markets. He said that some might argue that nearly all of Eastern Washington could be designated for long-term agricultural significance. Ms. Wall noted that the designation of agricultural land was not permanent, or even for the twenty year planning horizon of the GMA. Local governments may change the designations as conditions change. She also noted that there are increasing conflicts between agriculture and residential development that suggests the need to find ways to resolve these issues.
   
6. Ms. Collins asked who was filing appeals. Mr. Eldridge said the Boards had not compiled that information, but that his impression was that it was a mixed bag, with appeals by nearly every interest group concerned about land use issues. Mr. Tovar noted that there were differences depending on the nature of the underlying governmental action. County-wide planning policies were appealed by other local governments. City comprehensive plans tend to be appealed by property owners affected by changes in zoning.
   
7. Mr. Campbell noted Mr. Tovar's statement about the balance between state interests and local discretion. He noted that the Boards had been criticized for issuing bright line tests. Mr. Tovar suggested that there would be no reason for the Boards to exist at all if there were limited to procedural review. He said that there was confusion over what the bright-line tests represent. He noted that the Boards were only creating a presumption that could be overcome by factual information.
   
8. Mr. Moseley noted that there had been a suggestion that the Boards believe that they are supposed to ensure that local governments do good planning as opposed to complying with the GMA. Mr. Tovar said he did not think the Boards are supposed to substitute their judgment for that of the local elected officials. He did think that compliance with the GMA might result in good planning.
   
9. Mr. Moseley asked whether a different standard of review would apply if cases were appealed to the courts rather than to the Boards. Mr. Nielsen said that the GMA provides that the Boards are supposed to review local decisions with a presumption of validity and based on a preponderance of the evidence. He noted that the general standard that applied to court review local government actions was whether or not there was substantial evidence in the record. The Chair asked whether there was some way to clarify the standard of review. She noted that it was awkward to review legislative decisions under a preponderance of the evidence rule. Mr. Nielsen said the Boards were not concerned with what the standard was, but he did agree that some of the more traditional review standards might be easier for the Boards to apply.
   
10. Commissioner Best noted that Kitsap County had been in the midst of negotiations with cities, the tribes, and others when a decision was issued earlier than expected, complicating the negotiations. He wondered whether there could be ways to improve communication between the Boards and parties who might be negotiating outside of Board sponsored process. He also asked whether the parties should be able to extend the time for issuing a decision for any reason. Mr. Tovar said he thought parties should probably be allowed to continue the proceeding, but there should be a limit. Mr. Eldridge agreed that there needs to be communication between the Board and parties who are attempting to mediate a dispute, but he cautioned that there needs to be care taken in what the Board is told.
    
11. Commissioner Best noted that the Shoreline Hearings Board had a very aggressive policy towards mediating disputes. He noted that some of the SHB members will tell the parties how they would rule if they were to decide the case. This tends to get the parties' attention. Mr. Nielsen said this approach might require legislation. He also noted that the SHB has a 25 year history of decisions which makes it easier for the SHB members to predict the outcome of a case. Ms. Wall suggested that mandatory mediation might be perceived as another "top-down" directive from Olympia. Mr. Eldridge said this really was more like a mandatory settlement conference than mediation. He said it can work in some cases.
    
12. Mr. Husseman noted that the Boards were describing themselves as filling gaps and addressing ambiguities in the statute. He asked whether the Boards looked at the decisions of other Boards and whether they considered their prior decisions to be precedent. He also noted that a common statement heard by the Commission was that people wanted more certainty. He suggested that over time the Boards would provide that, but he wondered whether there were some areas where the gaps or ambiguities were so significant that legislation was called for.

    Mr. Eldridge said the Boards did view their decisions as precedential and that they did refer to decisions of other Boards. He noted, though, that they did not always agree, which he perceived as the very reason for having three Boards.

    Mr. Nielsen said the thought the statutory provisions governing the standard for lifting a declaration of invalidity might be inconsistent with other provisions of the GMA. He suggested that it could be very difficult for a local government to meet the requirements. Ms. Wall said she thought there might be some improvements in how standing to appeal decisions was defined.
    

13. Commissioner Best noted that a number of counties had historical patterns of development that did not fit the mold of the GMA. He asked how the members felt the problems of those communities could be addressed. Mr. Tovar noted that the GMA itself essentially divides the world into urban and rural. It also generally requires that urban densities be limited to the UGAs. He said this was only a general rule and that he thought a local government could show why it was not being followed in any given case. Mr. Tovar noted that Oregon had adopted provisions allowing for "exception lands" which might be an approach worth examining.
    

1. Mr. Jim Malinowski - Clark County Citizens United (CCCU)

   Mr. Malinowski said that a good public process will result in public acceptance of a county's land use decisions. Clark County's experience with growth management has been a failure because of a lack of such a process. He noted that public anger at decisions made by the County Commission had led to the defeat of one incumbent and probably to the decision of two others not to run for reelection.

   Mr. Malinowski said the County Council ignored the public preferences for planning in the rural areas. He noted that 70% of existing rural parcels did not conform to the new zoning and that many individuals had seen significant decreases in their property values as a result of the County's actions. Many long term residents cannot even build houses for their children. He said the public record did not contain any support for the county's actions. Much of the land designated as resource land cannot pass the economic viability test.

   CCCU recommends that the GMA either be repealed or that it be changed to ensure sound public participation that will result in public acceptance of the plan. Decisions made by local officials should be based on specific statutory authority. New plans should build on existing ones, not start from scratch. Plans should rely on incentives to achieve their objectives, rather than on regulation that results in economic loss to property owners. The Hearings Boards should be abolished. Development regulations to implement the plans must be developed through a public process and need to be clearly linked to the plans.

   CCCU supports land use planning and believes that it can result in positive benefits to the community. But steps need to be taken to avoid allowing planners and environmental zealots from taking control of the process at the expense of the rights of average citizens.
   

1. Finance Advisory Committee - Commissioner Best reviewed the Finance Advisory Committee's last month of work. The Committee met a couple of times since the last Commission meeting. It is working through a list of possible funding options to evaluate their merits. It has recently looked at ways in which existing funds for planning might be pooled. It also explored local real estate taxes and fees for preparing SEPA documents.
   
   Commissioner Best said the Committee will need one more month to finish its work.
   
2. Monitoring Advisory Committee - Rick Smith reported that the Permit Monitoring survey was mailed out at the end of May. It was sent to 239 cities and all 39 counties. To date, four counties and 23 cities have responded. He noted that the "one size does not fit all" refrain is appearing in the responses received to date. The brief sample to date suggests that the time for processing permits is taking longer under the new procedures. Several jurisdictions report that they could make their decisions in less than 120 days under the old system. He said the second phase, which will involve more intense review of several cities and counties, will begin in September.
   
3. Professional Certification Advisory Committee - Ms. Dietrich reported that the Professional Certification Committee's survey had been sent out with the permit monitoring survey. She said the Committee had met once since the last meeting and heard a presentation from Mart Kask, an environmental consultant who sits on the Finance Advisory Committee. Mr. Kask had suggested an approach for controlling the cost of the preparation of EISs that involved state selection of environmental consultants. She said the Committee was not inclined to support a state "certification" process. The Committee has tentatively concluded that the best approach for dealing with professional certification is through a program of technical assistance.

   Ms. Dietrich said the Professional Certification Advisory Committee also needed an additional month to make its recommendations. It is waiting for the results of the survey.
   

4. Statutory Review Advisory Committee - The Chair referred Commission members to the suggested workplan and committee membership proposed by Mr. McCann. The workplan would have the Committee begin its work in August and make a report to the Commission in November. It focused on consolidating the policy elements of several different statutes.

   She noted that Mr. McCann has agreed to work with the advisory committee, but that under the Commission's operating procedures it needs to be co-chaired by a member of the Commission. She said she would talk with Commission members to see who would be able to take on that task. She also noted that the suggested list of members was preliminary and that Commission members should let Mr. Reinert know of any other suggestions they might have for membership. She said the Commission would take action on the advisory committee workplan and membership at its July meeting.

The Chair reviewed the second draft of the issue paper prepared by Mr. Reinert. She noted that the paper reorganized some of the issues in the first draft and included additional topic - how to provide greater certainty in planning decisions.

Mr. Moseley suggested that an additional item that should be included is the suggestion made by the Growth Management Hearings Boards that the 180 day period for issuing decisions be tolled under some circumstances. He also suggested adding the issue of having state agencies make permit decisions within a period similar to that required of local governments. The Chair suggested that this latter issue might be better left to the second phase of the Commission's work. She noted that the Commission is in the process of reviewing how the permit process works and it might be better to include the state agency process in that review.

Commissioner Best suggested that there was a need to look at how special purpose district plans relate to the city and county plans.

Mr. Dearborn noted that the "one size does not fit all" refrain, although referenced in the paper, does not get the attention it probably deserves. He suggested that there should also be consideration of whether there is a need for additional authority for the Boards to require mediation or other alternative dispute resolution. He also thought that the paper should also make mention of those issues that will be considered as part of the 1998 workplan.

The Chair asked the Commission members to begin answering the questions in the document for themselves. She asked that member give any comments or suggestions for changes to issues paper to Mr. Reinert by June 28. The Commission will spend its July 9 meeting answering the questions posed in the paper.

Ms. Collins suggested that the Commission might need more time at the July meeting. The Commission agreed. The July 9 meeting is scheduled for 9:30 a.m. to 4:30 p.m. at the Everett City Council Chamber.

1. Finance Advisory Committee - The Commission consented to Commissioner Best's request that the Finance Advisory Committee be given until August to make its final report.
   
2. Professional Certification Advisory Committee - The Commission consented to Ms. Dietrich's request that the Professional Certification Advisory Committee be given until August to make its final report.