Summary


Chapter 2 Summary of Recommendations

The following is summary of recommendations contained in this final report. These recommendations are discussed in greater detail in the following chapters and should be reviewed in the context of that discussion.

Overall Recommendation

The idea of a consolidated land use code has the potential for many positive benefits. At this time, however, there is not the consensus necessary for its final development and adoption. The reasons for that lack of consensus are discussed in more detail in this report. The ideas presented in this final report merit further consideration and exploration. A consolidated land use code will take time to develop and implement. It will also require that adequate funding be an integral part of implementation.

Governance

	(1)	Establish new, or expand on existing, approaches to shared governance between state and local government. Two options deserving further consideration are:

		(a)	An intergovernmental council with representation from state government, local government, and the tribes; and

		(b)	Rule making and decision making procedures that promote shared governance over issues of greater than local concern, such as designation and protection of critical areas, shoreline management, and siting of transportation facilities of regional or state-wide significance.

	(2)	Provide additional technical assistance to state agencies and local governments on methods to avoid land use and environmental disputes and how and when to use alternative dispute resolution mechanisms. One mechanism deserving further consideration is a state office of dispute resolution to provide that technical assistance.

Planning

	(1)	Establish a process to better coordinate state agency planning and activities and resolve interagency disputes.

	(2)	Integrate city and county planning enabling statutes into a single, uniform planning enabling statute applicable to all cities and counties. Coordinate the provisions of the planning enabling statute to remove procedural inconsistencies with the Growth Management Act.

	(3)	Clarify the procedures for adopting shoreline management programs so that shoreline programs may be more easily integrated into the process for adopting GMA comprehensive plans and development regulations. For example, coordinate the time period for Ecology review of the shoreline master program with the time period for state review and comment on a draft GMA comprehensive plan.

Environmental Review and Permitting

	(1)	Environmental Review.

		(a)	Provide procedural and substantive guidance for the environmental review of comprehensive plans and development regulations to ensure that cumulative environmental impacts of plan decisions and subsequent implementation are analyzed and addressed.

		(b)	Consider whether additional changes should be made to the environmental review process to ensure that decisions made as part of the adoption of a comprehensive plan and development regulations, that have been subject to environmental review, are not subject to duplicative review during the project review.

	(2)	Local Project Review. Establish optional minimum standards for local government administrative hearings in order to make the local government process more thorough and consistent. This is seen as a necessary prerequisite to further consideration of having shoreline permit appeals heard on the record rather than de novo.

	(3)	120-day Project Review Time Limit. Designate an entity to study the impacts of the 120-day project review time limit in order to make a recommendation to the legislature and the governor prior to June 30, 2000. The 120-day time limit, originally due to expire in 1998, was extended for two years. The study should examine, among other issues, whether local governments are meeting the timelines, whether the timelines should be modified to recognize the complexity of projects, and whether sanctions for failure to meet the deadlines would be appropriate.

	(4)	Coordinated State Permit Process.

		(a)	Extend the permit assistance center.

		(b)	Consider a pilot project for the integration of state permit requirements into a single permit, such as consolidating Joint Aquatic Resource Permit Application (JARPA) permits into a single permit. The idea of a consolidated state and local permit should also be considered through an appropriate pilot program.

	(5)	Funding. Develop a consolidated land use code approach that provides sufficient funding to perform adequate environmental review at the planning stage, in order to reduce duplicative environmental review at the project review stage.

	(6)	SEPA. Further consideration should be given to resolving the key issues that divide stakeholders over the future of SEPA. Some of the issues that deserve further consideration are:

The environmental community and the Commissionís tribal representative cite SEPA as a cornerstone of environmental protection in our state. At a time when salmon recovery is on the top of the state agenda, they argue that now is not the time to weaken environmental protection. They refer to circumstances where GMA plans had little or no environmental review, thus requiring such information at the project stage to adequately analyze the environmental impacts of projects. They also point out that cumulative environmental impacts of development are not handled well under the current system, but that project review is the place where it is most likely to occur. They also note that SEPA applies to more than project development and GMA planning, because it applies to all government "action". The business community believes regulatory reform and GMA promised more certainty in the permit process, but in reality that predictability has not occurred. In their view, SEPA and the duplicative layers of process are still used as a tool to slow down projects, which adds to the problem of affordable housing in our region. Local governments cite the lack of available funds to do detailed and comprehensive environmental review at the planning stage. They also indicate that many times property owners are either unsure of development plans or are unwilling to share such plans at the planning stage; thus, environmental review cannot always predict accurately what will actually be built.

A resolution of these issues will need further careful deliberation and consensus building. The dialogue should continue. After the salmon recovery plan is in place, and further GMA plans are in place, it is possible the context will be different. Adequate funding of environmental review will be necessary at the plan stage to implement any reforms.

Essential Public Facilities

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.

Appeals and Judicial Review

Although nearly all parties agree that the current system for review of land use and environmental decisions is not perfect, there is no consensus to support any major changes to the land use and environmental appeals process at this time.

There is speculation that GMA appeals will diminish over time, however the Growth Management Hearings Boards currently have an adequate work load. The Commissionís recommendation is to maintain the status quo for the time being, while giving further study to the alternatives and the issues that divide the constituents who care deeply about this issue.

Some of the issues on which there are significant divisions include:

The environmental community, neighborhood groups, and tribes believe that the existing layers of appeals serve as an added element of environmental protection. They argue that the current appeal system works well and that there is no evidence showing any significant problems. They point out that many of the environmental statutes address matters that are of state-wide concern and that the appeal process should protect those state-wide interests. At a time when salmon recovery is a concern, they advocate that this is not the time to tinker with the Shoreline Hearings Board. They also cite to the expertise of the Shoreline Hearings Board and the Growth Management Hearings Boards in environmental and land use matters. They also prefer administrative boards because such forums are more accessible to non-lawyers. Some neighborhood groups view state or regional administrative boards as more independent of local elected officials than superior court. Environmental groups object to one provision added in 1995 legislation that provides for an award of attorneysí fees to the prevailing party in cases on appeal to the Court of Appeals. If the plaintiff has not prevailed before the local government or the superior court and loses at the Court of Appeals, reasonable attorneyís fees can be imposed against the plaintiff. They believe the potential for an award of attorneysí fees acts as a disincentive for the filing of legitimate actions. The business community cites to duplicative and inconsistent appeals statutes that can result in one project being appealed to different forums. They cite to the cost of de novo review, where local government proceedings on shoreline permits become meaningless if appealed to the Shoreline Hearings Board. They express concern with the Growth Management Hearings Board substituting its judgment for that of local elected officials and believe that superior courts have more experience in respecting the separation of powers. Local governments express frustration with the shoreline permitting process where new information and evidence may be produced at the de novo hearing, without giving local elected officials the right to review the new evidence. They would prefer an option that would provide for a hearing on the local government record if the local government conducts the hearing consistent with minimal standards for the conduct of administrative hearings. Local governments also referred to the "stove-piping" of issues that can occur under the current system, where shoreline and upland impacts are reviewed in two different systems, when GMA was directed at an integrated approach. Some local governments also expressed frustration with having an appointed board overturning the decision of local elected officials. State agencies had differing views. WSDOT spoke in favor of the status quo. Ecology and DNR agreed that in the perfect world, they would be able to present their concerns to local officials first. The current shoreline permit system allows state agencies to wait and raise their concerns for the first time in an appeal to the Shoreline Hearings Board. Although they recognize the potential for unfairness and inefficiency in such a system, it is a personnel resource issue. At present, they do not have the staff or other resources to stay informed and participate in all local projects. Even if the agency is notified of a project, it is not always adequately funded to participate in the local permit review process. The tribes have similar personnel resource issues. Some rural land owners believe that the Growth Management Hearings Boards have too much authority. They see the judicial system as the forum to correct the problems created by the boards. These rural land owners believe that judicial review combined with governor sanctions are the best tools to ensure that counties and cities are complying with the GMA. They believe that this system will also honor the GMA's promise of local control. The Commissionís agricultural representative from Eastern Washington noted the importance of geographic diversity of the decision makers participating in the appeals process. He felt it was important to maintain that diversity in the future.

Enforcement

Mechanisms to enforce development regulations and permit conditions is an issue that must be addressed by a consolidated land use code. There are many options that merit further consideration, as outlined in the body of this report. There was a consensus on the Commission for a fair system of enforcing permit conditions and for the need for additional enforcement of existing laws and regulations. However, there was not consensus on whether new enforcement mechanisms are necessary or what they should be. Some of the views are as follows:

Local governments cite a lack of sufficient funding for permit enforcement. Local permitting and inspection efforts vary greatly from community to community. Local enforcement efforts generally reflect local levels of development pressure and local issues. Smaller jurisdictions often have only one inspector to cover a very large area. Some local governments have innovative enforcement ordinances, such as Island County where third party enforcement is allowed. Local governments make it clear that unfunded mandates would not be welcome. The environmental community, neighborhood groups, and the Commissionís tribal representative cite cases where permit conditions are not implemented or monitored, leading to environmental harm. They believe more enforcement options, and perhaps mandates, are needed. The environmental community advocates for the right to act as private attorneys general, and the right to recoup attorneys' fees for the prevailing plaintiff. A prevailing defendant would be entitled to attorneys' fees only if the action was found to be frivolous or brought for purposes of harassment. The business community states that enforcement needs more study, and should be based on facts, not anecdotal evidence. They note that many of the ideas presented in the discussion of the issue can already be implemented and that legislation is not necessary. They fear increased litigation costs and permit fees to cover enforcement costs. Small builders cite permit fees as one problem standing in the way of affordable housing. The business community opposes private attorney general suits. They also believe that a system under which only plaintiffs get attorneys' fees is unfair and will lead to increased litigation and frivolous suits. They also note that if private attorney general suits are authorized, they should apply only to post construction issues. Otherwise, project opponents can stop projects during construction when financing is vulnerable. State agencies note that the objective is compliance, not enforcement, and suggest greater focus on the use of existing enforcement tools. An analysis of where the problems occur may lead to better environmental protection. For example, King County performed a study on wetland mitigation. Problems occurred at all stages, including design, construction, and enforcement.

Funding

A variety of funding tools should be provided for local governments to use to finance responses to growth related impacts. Some tools that deserve further study include:

	(1) Infrastructure finance; (2) Joint economic development districts; (3) Interlocal revenue sharing agreements; (4) Regional tax-base sharing options; (5) Tax increment financing; (6) Planning and Environmental Review Fund; (7) Non-monetary enforcement; and (8) Impact fees.

Impact of Vesting During Appeals

Based on the limited information available from a study prepared for the Commission, no changes to Washington's vesting statutes are recommended at this time to address the specific issue the Commission was asked to consider: whether vesting during a period of time a comprehensive plan is on appeal results in the approval of projects that are inconsistent with a comprehensive plan that is found in compliance with the GMA.

Some Commission members and environmental community representatives expressed disappointment with the data collected. They suggest a further general study of the vesting issue should be considered. The environmental community believes there is anecdotal evidence that Washington's vesting law, which grants vesting at the time a complete application is submitted, creates problems for implementation of the GMA. However, there has been no systematic study to indicate whether vesting in general is a problem.

Since many comprehensive plans have now been adopted, the impact of vesting during the adoption and appeal of comprehensive plans may be less of an issue in the future. Also local governments do have authority to adopt moratoria to limit vesting during plan adoption if a problem arises. Some advocate, however, that the option of a moratorium is not sufficient, and that more direct legislative changes to the vesting laws are appropriate.

There are equally strong views that property rights and vested rights must be strengthened in any future consolidated land use code. Advocates of property rights view the GMA and other environmental laws as infringements of their constitutional rights.

Any legislative change to the current rules on vesting would be a very controversial issue and would need further legal analysis, given the doctrine's judicial roots.




Land Use Study Commission Final Report December 1998