Land Use Study Commission

Summary of Meeting
February 11, 1997
Department of Ecology
Lacey, Washington

I. Meeting convened at 12:30 p.m.

A. Members Present: Ryan Durkan, Chair; Commissioner Phil Best, Skip Burch, Tom Campbell, Sheila Collins, Keith Dearborn, Kathy Dietrich, Loren Dunn, Mayor Ed Hansen, Terry Husseman, David Moseley, Kimberly Ordon, and Dave Roseberry.

B. Staff Present: Harry Reinert and Julie Knackstedt.

II. Welcome from Tom Fitzsimmons, Director of Ecology

Mr. Fitzsimmons welcomed the Commission to the Department of Ecology. He said the Commission’s work held promise for resolving a number of problems that had faced the state over the last few years. He said that he looked forward to learning more about the Commission, although he had followed its work from the local government perspective until his appointment as director of Ecology.

Mr. Dearborn said that Terry Husseman had played an indispensable role on the Commission and that it would be a real loss to the Commission if he was not able to continue in that role. He noted that Phil Miller had also been very helpful to the Commission Other Commission members concurred in Mr. Dearborn’s remarks.

III. Chair’s Report -- Announcements

A. Chair’s Report -- Legislative Update

The Chair reported that Governor Locke had held a press conference that morning at which he announced his support for the Commission’s recommendations and that he was asking that the Commission’s legislative proposals be introduced as Governor Request legislation. In addition to the Governor, Sen. McCaslin, Chair of the Senate Government Operations Committee, Rep. Reams, Chair of the House Government Reform and Land Use Committee, will be prime sponsors in the Senate and House, respectively. Sen. Haugen and Rep. Romero will also be sponsors. She noted that Mr. Dearborn, Mr. Dunn, Mr. Campbell, and Mr. Reinert also attended the press conference.

She said that Sen. McCaslin had expressed his understanding that the GMA was not likely to be repealed this session and that the Commission’s recommendations appeared to be a reasonable compromise. She also noted that the Governor, in response to a question, said that he would look to the Commission’s recommendations as the framework against which he would judge other GMA proposals.

Mr. Dunn said he was pleased to see the level of support for the Commission’s proposals. Mr. Campbell said he heard a desire on the part of some of the legislators to pass the Commission’s recommendations. He thought it likely that other bills might also pass, even if they contained provisions that are inconsistent with the Commission’s recommendations.

Mr. Husseman asked whether the Governor’s proposal included the infrastructure financing components. Mr. Dearborn said it did not and that he was bothered by that. He found it problematic that the Governor would pick and choose among the Commission’s recommendations. He thought the Commission should work with the Governor to see if he would also forward those recommendations. The Chair noted that Sen. Haugen had expressed an interest in the infrastructure financing proposal and might introduce it. Mayor Hansen said he had discussed this issue with Sen. Haugen the previous week and she seemed very interested in it.

Mr. Moseley said it was unfortunate that the infrastructure finance proposal was not included in the Governor’s proposal. He said he hoped it would be possible to at least have the infrastructure finance bill introduced and to have a hearing on the issue at some point during the session. He thought that it might then be possible to bring something more comprehensive to the legislature next session. Mr. Moseley asked that a copy of the Governor’s comments be made available to the Commission if possible.

Mr. Dearborn noted that many legislators he had talked to do not believe the Commission’s proposal goes far enough. They may feel more comfortable with the Commission’s recommendations if they see it as the first step towards more comprehensive reform in the areas that they are concerned about.

Mr. Roseberry noted that the Republicans generally believe that there is adequate money available at the local level to pay for infrastructure and that local governments should re-prioritize how they spend their available revenue. He said that view is a hurdle that will need to be overcome if additional sources of revenue are to be authorized. He also said he had received some questions about the consolidated code effort. The Chair noted that she had been asked a question about this issue by Senator Anderson during a Senate Government Operations Committee hearing.

Mr. Reinert handed out a table listing the bills introduced in the Legislature that would amend GMA. He noted that no bills had yet passed out of Committee. He said that there was no indication yet about which Committee would take the lead on the Commission’s proposal, or whether both Committees would

B. Announcements

Mr. Campbell announced that he had taken a new job in Snohomish County which involves looking at ways to use technology to connect schools, community groups, and local governments and to strengthen community ties. He noted that since he is serving on the Commission in part as a representative of the Department of Community, Trade, and Economic Development, he did not know whether he would continue to serve on the Commission. That would be a decision the new director of DCTED would be making.

IV. Buildable Lands

Mr. Husseman said the Buildable Lands Committee had met twice since the January Commission meeting . He handed out a list of the members of the Committee, the points of agreement the Committee had reached prior to the January meeting, and the latest draft of proposed legislation and comments from Committee members on that draft.

Mr. Husseman said that although the Committee had not reached consensus, the Committee would agree that the new proposal is preferable to the placeholder agreed to by the Commission at its January meeting. He noted that the issue being addressed was that urban growth areas might not have sufficient land to meet residential targets. The building industry was a primary proponent of the legislation. They wanted counties and cities to monitor and evaluate how they were doing in meeting their residential density targets and, if the evaluation shows that the targets are not being met, that the counties and cities be required to take actions to remedy the situation.

The draft proposal requires six western Washington counties, and the cities in those counties, to implement a monitoring and evaluation program to measure residential and employment based activities. The local governments would also develop the criteria to determine what types of land are suitable for development. An evaluation would be required every five years to determine if the urban growth area has sufficient suitable land to accommodate projected growth. If not, the local governments would be required to take actions designed to remedy the situation. If the local governments determine that additional measures would not be effective, they may look at expanding the urban growth boundaries to provide additional land. If, after three years of using the additional measures, the targets are not being met, the local governments would be required to review the urban growth boundaries.

He noted that the proposal also directs DCTED to provide technical assistance and provides funding to cover the costs of the proposal, recognizing that under Initiative 601 this would be an unfunded mandate.

Mr. Husseman invited members of the Committee to add any comments. Dave Williams, with the Association of Washington Cities, commended Mr. Husseman and Mr. Miller for their leadership of the Committee. He thought the Committee, even if it did not reach a consensus, had served a useful purpose in helping the different parties better understand the each other’s point of view.

Mr. Husseman suggested as a starting point, the Commission consider asking that new proposal replace the placeholder provision in the Commission’s recommendations.

Mr. Dearborn said that for the business community the main concern was accountability. He handed out a brief from a recent Growth Management Hearings Board case where the city had argued that the GMA had not imposed a requirement that cities accept urban densities. He hoped that with a buildable lands bill this would no longer be an issue.

Mr. Campbell said he was concerned that the draft did not contain any policy guidance, that all it did was direct local governments to monitor and evaluate what they said they were going to do. He thought the intent of the effort was to increase density within the urban growth area and this should be stated explicitly. He said that Mr. Dearborn’s request for accountability needed to be framed in terms of what local governments are accountable for. Ms. Dietrich agreed with Mr. Campbell’s comment.

Mr. Dunn said he shared Mr. Campbell’s concerns. He noted that a number of eastern King County communities had incorporated to remain rural. He did not believe sure that the proposal would address that type of issue. He said the proposal only required an evaluation of whether what is actually happening is consistent with what was planned for. He was concerned that ten or fifteen years out we could face a problem if cities are not in fact required to take additional densities to meet growth needs. He said the first question posed should be whether the plans are consistent with the overall objectives of the GMA.

Mr. Husseman asked Mr. Miller to summarize the comments received from the Committee on the latest draft proposal. Mr. Miller said many of the changes from the placeholder were largely filling in details or clarify elements of the prior version. One substantive change was the addition of the provision changing the burden proof if the urban growth boundary was to be changed. Mayor Hansen expressed concerns about the provision. He thought that an agreement reached between the county and its cities should be worth something. The Chair noted that this would be the one exception from the general rule giving a presumption of validity to local government actions. Susan Crowley, with the City of Seattle, noted that the provision had been included in a proposal the city had made, in part to address concerns of the environmental community. She said the intent was to require the higher burden if the urban growth boundary was to be moved before other methods of resolving inconsistencies were attempted.

Mr. Dearborn said another issue that has not been resolved is what should be monitored. He noted that the GMA currently requires that a comprehensive plan should reviewed at least every ten years. That process is not changed by this proposal, meaning that there might be two separate review processes. He thought it would make sense to combine them into one process and that it should occur more often than once every ten years. He believed that the environmental community agreed, because they wanted to assure that environmental protections were examined to determine if they were working. This would broaden the concept of buildable lands, but would also increase the costs. He thought that to some extent, local governments were already required to conduct the type of study being proposed.

Mr. Moseley said the difference between what the GMA currently requires and the buildable lands proposal was the prescriptiveness of the buildable lands proposal. Mayor Hansen agreed with Mr. Moseley’s comments.

Nancy Tosta, with the Puget Sound Regional Council, discussed some of the elements included in determining the costs of the proposal. She one assumption was that local governments would need accurate information about development activity and applying that on a parcel level. The ten year monitoring of a comprehensive plan the GMA currently requires would probably not be as site specific. The costs relate to the funds necessary to bring the six counties covered by the proposal up to a certain level of GIS capability, particularly with respect to data. Local governments have all invested a certain amount of effort, but the proposal requires an additional level of detail for a number of jurisdictions. Without the additional detail, analysis is likely to result in inaccurate results. Mr. Campbell asked whether it would be possible to get to the same place with a modeling approach, that might be less expensive. Ms. Tosta said the PSRC had looked at this issue. To a certain extent, counties have already invested in parcel specific databases for a number of reasons. Taking off on an independent approach might not be a good investment of public resources, since you might end up with parallel tracks. Mr. Campbell asked whether there was any local cost sharing incorporated into Ms. Tosta’s estimates. She said there was an assumption built into her estimates that local governments would continue to invest their own funds into GIS. Mayor Hansen asked how city GIS costs were incorporated into the estimates. Ms. Tosta said the estimates take into account the need in some counties to develop a common database. The costs do not assume that the funding of city GIS capability where it does not exist.

Mr. Husseman said there were three approaches the Commission could take on the proposal in front of it. One would be for the Commission to say it has gone as far as it could. The current draft could be presented as a starting point for further discussion. A second approach would ask either the Committee, or the Commission, to continue working on the issue and try to resolve the issues prior to the March meeting. The third alternative would be for the Commission to work through the comments received by the Commission and try to come to consensus today. He expressed doubt about the likelihood of achieving consensus today and wondered whether it would be the best use of the Commission’s time to review the comments in detail. He said he would probably suggest the first approach, in part because he had some doubts about the ability of the parties to come to consensus on the issue.

The Chair suggested that the proposal should make an effort to use consistent language with other provisions in the Commission’s proposal. She also expressed some concern about shifting the burden of proof to the local government to justify expanding the urban growth area. She thought the provision might be too burdensome in those cases where a local government wanted to move, rather than expand, the urban growth area. She thought the mood in the Legislature was such that this should be carefully considered before it was recommended. Mr. Miller noted a number of commentators had also raised this as an issue.

Mr. Dearborn said that the Commission’s relationship with the Legislature is fragile at this time. He did not think it would be constructive to send something to the Legislature that the Commission knows is imperfect. Ms. Ordon and Mr. Dunn both concurred in Mr. Dearborn’s concern. Mr. Dunn said he would like to see the Commission make another effort at reaching consensus on the issue. He understood it as one of the key components of the Commission’s agreement and felt there was an obligation to try and resolve the issues. He said a poorly done proposal would undermine the long term success of the GMA; properly done, it would enhance the GMA.

Mr. Husseman said he would be willing to work further on the issue, but that additional Commission members should probably be involved. Mr. Campbell suggested that the Commission should take on the issue itself, rather than farming it out to the Committee again. Mr. Dearborn said the local governments and environmental community had moved a long ways towards the business community’s concerns. If there were any frustration, it is that the business community has been slow to come to the table with specific proposals, rather than general concerns. He agreed that it would be a good step for the Commission try to reach consensus.

Mayor Hansen said he wanted to emphasize the importance of adequate funding as a component of any recommendation. He also noted that there is a concern on the part of some cities that counties sometimes allow development to occur in unincorporated urban growth areas a less than urban densities. He also said it was important to assure that cities have a role in any monitoring and evaluation program.

Mr. Husseman suggested that Mr. Miller circulate to the buildable lands committee and a Commission subcommittee a revised version of the placeholder and try to focus future discussion on the areas where there are disagreements. The Chair asked which Commission members would like to participate in the subcommittee. Mr. Dunn, Ms. Ordon, Mr. Dearborn, Mayor Hansen, and Commission Best volunteered. Mr. Husseman will serve as chair of the subcommittee.

V. 1997 Commission Workplan - Commission Discussion

A. The Chair reminded the Commission that one of its charges is to consider ways in which to consolidate the state’s land use and environmental laws into a single, manageable statute. At its meeting in Everett in July, the Commission had developed a list of issues that, based on public comment, it thought should be considered. From that list, the Commission had narrowed its focus to the issue papers that led to its 1996 report. She asked each member to discuss what he or she thought the focus for the Commission should be over the next year. She asked members to particularly discuss the issue of a consolidated land use code.

B. Mr. Campbell said that he thought the starting point for consolidation should be looking at the policy objectives of the different statutes. He said that there needs to be some evaluation of what is working and what is not. He noted that in some places consolidation might be appropriate, in others one might look to delegation. He thought the effort should be undertaken.

C. Mr. Burch said that WSDOT continues to be concerned about the permitting process, particularly as it relates to cross-jurisdictional projects. He said that WSDOT is working on a watershed approach to addressing mitigation of transportation projects and that he would like to present a report to the Commission in the next few months. He also noted that the permit monitoring workgroup was moving towards selecting a consultant to conduct the next phase of its work.

D. Mr. Husseman suggested that the Commission should look at how some the HB 1724 reforms were progressing. One issue is the SEPA/GMA integration effort. Another is the Shoreline Management Act integration with GMA. A third is permit coordination and the permit assistance center. He suggested it would be helpful to have a briefing on these issues as part of the Commission’s consideration of its workplan. He noted that the permit coordination process had proven to be popular. He said it might be time to consider looking at coordination among levels of government.

A second area for consideration is how to integrate water planning and water availability with growth management. He noted that there is an increasing interest in looking at locally driven watershed planning and that it would be important to assure that there is a linkage with growth management in such a process.

A third area for consideration are the variety of planning and development activities of special districts, such as sewer and water districts, PUDs, and similar types of entities.

E. Mr. Moseley said he did not want to continue to be the GMA fix-up commission. He said one of the reasons he wanted to serve on the Commission was to look at the consolidation effort. He thought there was a real value in that exercise and that the Commission should not step back from that task. He recognized that it might be difficult to get that done prior to the 1998 session and that it might be possible to look forward to the 1999 session. He said that if the Commission was looking towards 1998 recommendations, that he would want to add infrastructure finance as an issue to work on over the next year. He also noted that if the Commission was not going to tackle the consolidated land use code, it should advise the Legislature so that it could modify the Commission’s responsibilities.

F. Mr. Roseberry said he was surprised at how little he has heard about the consolidation issue from legislators so far. He saw it as a complicated issue and that there was a risk of making the planning process even more complex than it already is, particularly in those counties where there is not a lot of development activity.

G. Mayor Hansen suggested that the Commission should continue to focus on the legislative session to assure that its recommendations receive favorable treatment. He also noted that with a new Governor, he wondered whether the Governor might want appoint new members. The Chair said she had had some discussions on this issue with the Governor’s staff. Her impression was that the Commission is seen as having produced a solid report and that she did not sense a desire to make changes. She also noted that she asked the new director of DCTED, Tim Douglas, whether he would like to take over the Chair’s position. He said no.

Mayor Hansen also suggested that the Commission might want to invite the Governor to make suggestions for issues he believes the Commission should address. He also noted the City Planning Directors had submitted a letter to the Commission. He suggested that there might be value in inviting the planning directors and other groups to submit suggestions for issues for the Commission to address.

H. Ms. Collins noted that the Spokane County would be considering the adoption of interim urban growth boundaries that evening. She said Spokane was following many of the other GMA jurisdictions by a few years, but would probably be facing many of the same issues that other counties had faced. She noted that vesting would become an issue as the county adopts its IUGA.

She said she thought GMA should be an overarching framework for other planning statutes. She said this would be good for citizens, because it would combine in one place the relevant law and make it easier for them to participate in the process. She thought the statutes should be made more user-friendly. She said many citizens feel that government places barriers to their participation. She also said that there is a perception that the laws are not applied uniformly. This was particularly true in the permitting context, but also in appeals.

I. Commissioner Best said he did not see how the Commission could avoid the question of consolidated code. He suggested that consolidation could be looked at from a procedural viewpoint and from a substantive viewpoint. He said procedural reform should be examined. For instance, is there a need for separate shoreline, pollution control, and growth management hearings boards. He said that there was also a need to look at ways to share information among local governments and with the public. He noted that this was an element of the Finance Advisory Committee’s recommendations.

He also suggested that there might be value in looking at expanding the rule-making authority under the GMA. Since the GMA is ambiguous, the Boards have filled in the gaps. Rule-making might be a better approach to addressing those ambiguities than litigating through the boards.

J. Ms. Ordon said that after considering Mr. Dunn’s work on the consolidation effort she had doubts about how useful that would be. She did not object to efforts at simplification as long as environmental protection is not lost. She noted that much or her work relates to water resources management is an important issue. Vesting also raises important concerns.

She noted that data management could provide some real benefit in environmental protection and that this would also be worth examining in greater detail.

K. Ms. Dietrich said that as an architect, the permitting process is a daily struggle. She thought the suggestion in the City Planning Directors’ letter to integrate shoreline permits with other land use permits was an area worth further exploration. She said that water availability was critical to all aspects of the growth management.

She also noted that an informed citizenry was key to making growth management work. She was not sure how to get achieve that objective, but thought it was important to take into consideration.

L. Mr. Dearborn agreed with Ms. Dietrich that getting public acceptance was key to have a successful growth management system. He said he was assuming, unlike Mr. Moseley, that the Commission would be making recommendations to the 1998 Legislature. He thought the Commission should develop its proposed workplan and then confirm with the Governor and the Legislature that it comports with their sense of what the Commission should address. He said he was rethinking the value of exploring a consolidated land use code. He was not sure that there was enough time and energy to do it. He also had doubts that it would provide value to the system. Instead, he favored addressing specific areas where improvements would be more likely.

Mr. Dearborn suggested that one issue that came up in the buildable lands committee was whether there should be an economic development element in comprehensive plans. He said it related to a number of different growth management and economic development issues and should be explored. He also noted that the PSRC had again raised the issue of siting essential public facilities and that the Commission should look at this issue.

Mr. Dearborn also noted that the Commission had included in its 1996 Report a statement that it would look at the whole issue of state oversight of local decision making under growth management and other environmental laws. He also said he did not believe that the Commission had dealt sufficiently with flexibility for local governments. He said there was a need to integrate environmental values and environmental standards in the land use system. He said the rural element proposed by the Commission moves in this direction. He saw this as a step towards limiting the need to rely on SEPA.

Mr. Dearborn also said that the 120 permit timeline needed to be looked at closely. His sense was that small permits were taking longer because more resources were being put into more complex permits to meet the deadlines.

The Chair asked if Mr. Dearborn had a sense where the business community was on the consolidated land use code. Mr. Dearborn said he thought there was some sentiment that a complete revision would not be worth the effort. Some members of the business community believe that the reforms they thought were included in HB 1724 did not work out as they had hoped. He thought there might be more interest in focusing on more focused changes whose effects could be better understood.

M. Mr. Dunn said he would like to discuss with his constituency before suggesting a list of ideas. He did agree that narrowing the focus of the consolidated land use code was a good idea. He said there was concern in the environmental community about achieving substantive environmental performance.

He thought the Commission’s process over the last year had been very helpful, particularly in its efforts to listen to what people have expressed as problems and to develop solutions to those problems. In that respect, he thought the Commission should not completely reject the role of serving as a clearinghouse for improvements in the GMA. He thought Mayor Hansen’s suggestion of consulting with the Governor and the Legislature was a good one.

N. The Chair said she had heard an offer from Mr. Husseman to provide briefings on some of its efforts. She suggested that at its March meeting the Commission could hear from Ecology.

She said that there appeared to be three different approaches to addressing the consolidation issue. One would be to take it on fully. The second would be to decide it was not worth the effort. The third approach would be to focus on specific areas, such as permitting, appeals, or shorelines, as areas where consolidation could be achieved. She noted that the Commission’s enabling legislation did allow some flexibility on this issue.

The Chair said the Commission would discuss the question of its workplan again at its March meeting.

VI. Public Comment

A. Maxine Keesling - King County Resident. Ms. Keesling expressed concern about the infrastructure finance recommendation. She said that any impact fees paid should be deducted from the tax owed. She noted that in King County impact fees had been imposed on a development that benefited transportation projects that had no relation to the development. She said impact fees were imposed erratically. Mr. Dearborn noted that the Commission’s proposal was not to increase the tax, but to shift an existing tax from the state to the local government.

She thought the rural element was pretty good. She did express concern about limitations in the rural element that required new development to be designed to serve local residents. She said this was unnecessary micromanagement. She thought the other limits were satisfactory. She also expressed concern about clustering. She said it should be at the option of the landowner. She said no one likes it except planners and that it destroys rural lifestyle.

She also expressed concern about allowing technical assistance to neighborhood groups and about allowing codes adopted by national organizations to be accepted by the boards. Ms. Collins said the intent of the proposal was not to provide funds to community groups, but to provide information to those groups so that there will be an informed citizenry.

Mr. Dearborn said this raised an issue that he had some concerns about as well. He thought the intent was that the technical assistance was intended to flow through the local government. The Chair said she remembered there was concern that a prior version might have allowed funding for litigation and the provision was modified to address that concern. Mr. Dunn said he did not see this as significantly different from other provisions where technical assistance is provided to the public.

Commissioner Best noted that counties and cities are required to have early and continuous public participation. He suggested that the technical assistance should be provided through the local government. Mayor Hansen said he had some similar concerns. Mr. Dunn said there might be some value in having a single clearinghouse. Mr. Dearborn said he could not defend this particular proposal. He thought there was problem with the mechanism by which the assistance should be provided, not that it should not be provided. Ms. Collins said that it was important to her that the public have access to this information directly.

B. John Campiche - Pacific County. Mr. Campiche said he had lived in a county that for many years has not had any land use law. There has been a significant influx of new residents over the last few years. The Long Beach Peninsula has significant water supply problems that have been exacerbated by the proliferation of septic systems because of growth. During the winter these systems can be overrun. The County government’s primary mission has been to encourage development.

The Growth Management Hearings Board has been the only governmental entity that has been willing to make Pacific County follow the law. He said the Commission should not allow the authority of the Board to be diluted. He said consolidation of environmental laws under the umbrella of the GMA would be helpful in assuring that public health in the county can be maintained.

C. Steve Clagett - 1000 Friends of Washington. Mr. Clagett said there was one issue in the Commission’s legislation that he would thought might deserve further consideration by the Commission. This deals with the exemption from public comment of proposed amendments to a comprehensive plan or development regulation if the amendment was within the scope of alternatives considered in an environmental impact statement prepared in conjunction with the original plan or regulation. He was concerned that this would mean that almost any amendment would be covered, since it would likely be within the range of alternatives considered.

The Chair said that she had suggested this particular approach. She noted that in Snohomish County it would have covered a situation where the County Council chose one of the alternatives discussed in the EIS, although it was not the preferred alternative. She said she was sensitive to the concern of local governments that they need to be able to make decisions in a timely manner. She also noted that it would provide some consistency with the SEPA EIS process.

Mr. Dunn said that he had heard concerns that this provision would allow a county to city to reach back to an EIS that was prepared in the past and that may be stale. He also understood that the SEPA rules govern the use prior environmental documents, but he was not certain that they adequately addressed this situation. He also understood that one of the concerns about the reference to the "range of alternatives" was whether this meant that it had to be a specific alternative that was discussed in the EIS or whether it fits between the alternatives considered.

Mr. Dearborn said he would be willing to look at another alternative if Mr. Clagett wanted to try to come up with one. He did not want to make the provision so limiting that only proposals specifically discussed in the EIS could be considered. He thought this defeated the purpose of the public comment process.

D. Paul Roberts - City Planning Directors. Mr. Roberts said the planning directors had concluded that the Shoreline Management Act needs to be revised to be better integrated into the GMA. In particular, there were concerns about which statute is controlling in terms of policy. Permitting and appeals are also issues that they planning directors would like to see addressed. He said the planning directors would like to come back to the Commission with a proposal in the future. The Commission expressed an interest in hearing their suggestions.

VII. Adjournment — The meeting adjourned at 4:30 p.m.

970114SU.DOC