Essential Public Facility Siting

Chapter 10
Essential Public Facility Siting

Essential public facility siting in Washington involves a complex array of interests and social policy. The GMA, which directs cities and counties to establish a process for siting essential public facilities, also prohibits them from precluding the siting of those facilities. The GMA definition of essential public facilities is broad and ambiguous. It includes facilities owned and operated by governmental agencies as well as facilities owned and operated by private entities. The current procedures do not provide guidance for addressing the impacts of essential public facilities on the host communities.

Background

Pre-GMA

The traditional power of local government to control land uses within their jurisdiction is in the Washington Constitution, Article XI, Section 11. A county, city, town, or township may "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Under pre-GMA zoning laws, there was little specific legislative guidance regarding the siting of most essential public facilities. Disputes over siting were decided on a case by case basis.

State Siting Processes

State law does provide for the siting of certain types of large facilities. The Energy Facilities Siting Evaluation Council (EFSEC), originally established in 1970, has authority to site large energy facilities, such as nuclear power plants, oil pipelines, and some electrical transmission facilities.¹⁰ EFSEC preempts all state and local permit processes for those facilities over which it has authority. The siting of hazardous waste management facilities is also regulated by state law.¹¹ The state has preempted the field for siting some types of hazardous waste management facilities, but does provide a mechanism for a community and a facility proponent to reach an agreement that becomes a part of the state's regulations.

GMA

The GMA attempted to address essential public facilities siting issues. It defines essential public facilities to include

those facilities that are typically difficult to site, such as airports, state education facilities, and state or regional transportation facilities, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, and group homes.

RCW 36.70A.020.

These facilities, while needed by society, often have real or perceived negative impacts on surrounding communities that may make them undesirable neighbors, and increase the complexity and difficulty of siting new facilities or expanding existing facilities. The GMA requires all local comprehensive plans to include a process for identifying and siting essential public facilities, and prohibits local comprehensive plans or development regulations from precluding the siting of essential public facilities. It requires the state Office of Financial Management to maintain a list of essential state public facilities. State agencies must comply with local comprehensive plans and development regulations.¹²

In addition to these siting provisions, the GMA requires county-wide planning policies to include policies for siting public capital facilities of a county-wide or state-wide nature.¹³

The Department of Community, Trade and Economic Development (DCTED) adopted procedural criteria to guide local governments in the implementation of GMA, including the siting of essential public facilities, but these procedural criteria are not mandatory nor do they address all of the issues that have arisen over the siting of essential public facilities.

Discussion

While the Growth Management Act established a process for the siting of essential public facilities under the local comprehensive planning process, this bottom-up process does not always work for statewide or regional facilities, especially those sited by state agencies. Specific issues include:

The process of identifying and siting these facilities is defined as a local responsibility under the Growth Management Act, while these facilities are often owned and provided by state or regional agencies or private companies. The role of these facility owners in identifying needs and in siting is unclear.

The definition of an essential public facility in the legislation is vague. For example, "state and regional transportation facilities" are listed. Does this include all state-owned transportation facilities? What is a regional transportation facility? Does this include facilities not owned by the state, but which are of state-wide significance?

The status of the OFM list of essential state public facilities is not clear. The legislation indicates that this is a short-term list. In practice, OFM has used the 10 year capital budget as the list. A longer term list seems to be needed to better integrate into local land use plans, but state agencies vary in their authority to develop long term plans. Is the list meant to be of generic types of facilities - i.e. interstate highways, branch campuses, etc. - or only specific improvement needs - i.e. widening I-405 from point a to point b, a UW building expansion, etc? What process should be used to determine the need for a facility on the list? Should all state capital projects be classified as essential?

The legislation is silent on any details of the siting process. Should mitigation be part of the siting process for essential public facilities? Should mitigation be a totally local decision?

At what point do local government siting requirements effectively preclude development or expansion of an essential public facility? Does "siting" include just new facilities, or does it include expansion of existing facilities as well?

What does the legislation imply for the use of state property? Can local governments make the decision to change the use of state lands?

Options

A specialized process for siting essential pubic facilities should be considered. There are a variety of approaches possible. The one given the most attention by the Commission's advisory committee is described below.

The process would provide for different processes depending on whether the facility is a state-wide essential public facility or a local or regional essential public facility. A state-wide facility might include a state owned and operated prison or detention facility, a new college or university, or a hospital. Other unique types of facilities, such as energy facilities currently sited through EFSEC and hazardous waste disposal facilities, might also be considered state-wide facilities. All other essential public facilities would be considered as local or regional facilities. The state-wide process would be managed by a board or council comprised of representatives from state agencies and local governments. The board could be specifically established to address essential public facilities or it could be part of another body.

Local or regional facilities would be sited by local governments using the existing GMA process. DCTED would be given authority to adopt minimum standards for the process, including timeframes for making a decision and procedures to coordinate with adjoining local governments and state agencies. If the local government process does not reach a decision within the timeframes established or if the applicant or other participants in the process believe that conditions imposed on the proposal are intended to preclude siting rather than address legitimate project impacts, a negotiated siting process may be requested.

The negotiation process would include representatives from each local government in which the facility is located or which would be directly impacted by operation of the facility, the applicant, and other parties whose participation is necessary to resolve the issues involved with the proposal. Who these parties should be and how the public would participate in the process are issues that will need to be resolved.

The facility siting committee would seek to negotiate a resolution of the siting issues with assistance from the office of dispute resolution, if available. If an agreement is reached, each local legislative body represented on the committee would have to ratify the agreement for it to take effect. The local legislative body could only accept or reject the agreement. It could not modify the agreement. If approved, the agreement is binding on all parties.

If an agreement cannot be reached, the state oversight body would be presented with the proposals from each party. The oversight body would select the proposal it determines is most consistent with state policy.

An essential component of a new process should be timelines for the local siting review process and for the negotiation, in order to limit permit delays.

As a part of the essential public facility siting process, issues of impact compensation could be included in the negotiation process for local or regional facilities or as part of the siting process for state-wide facilities. Impact compensation could include:

For state facilities, the allocation of discretionary federal funds to the impacted community or of an existing revenue source to the impacted community for a specified period of time, e.g. state share of sales tax on construction on the project to the impacted community

A compensation budget included as part of the project to cover impacts in addition to direct impacts covered by SEPA mitigation and impact fees. This could be modeled on programs such as "one percent for the arts."

Pros:

Proponents point out that the proposal establishes timelines for siting essential public facilities that should result in expedited decisions. They suggest that funds saved by reducing permit delays could be used to benefit communities through impact compensation and mitigation.
Proponents suggest that thorny issues of siting essential public facilities may be reduced in Washington.
Proponents suggest that the process could provide a mechanism for determining the need for a proposed essential public facility. They point out that the lack of a need determination is a criticism sometimes made about the process for siting energy facilities under the EFSEC process.

Cons:

Those opposed to this option believe that even though there may have been problems siting some essential public facilities, many jurisdictions have successfully sited facilities. Local control advocates do not believe there is a problem that needs this type of state-wide solution.
Some local governments believe that the proposed process will force most siting decisions into negotiation and litigation because opponents of projects will take advantage of every opportunity for delay.
Some argue that the proposal does not address the fact that GMA has an over-broad definition of essential public facilities.

Recommendations

Improved procedures for siting essential public facilities should be established. In particular, the new procedures should address the definition of essential public facilities and methods to provide impact compensation and mitigation to communities impacted by the facilities.

¹⁰ Chapter 80.50 RCW.
¹¹ See RCW 70.105.200 through 70.105.260.
¹² RCW 36.70A.103.
¹³ RCW 36.70A.210.

Land Use Study Commission Final Report
December 1998