L. 1995, Ch. 347, ß 1.

The Commission's enabling statute gives the following direction to the Commission:

The commission's goal shall be the integration and consolidation of the state's land use and environmental laws into a single, manageable statute. In fulfilling its responsibilities, the commission shall evaluate the effectiveness of the growth management act, the state environmental policy act, the shoreline management act, and other state land use, planning, environmental, and permitting statutes in achieving their stated goals.

RCW 90.61.010 (repealed effective June 30, 1998).⁵

Discussion

Structure of the Code.

The Commission identified over a dozen existing chapters of the Revised Code of Washington that might be included in a consolidated land use code. In its review of these laws, the Commission identified the different chapters that could hold the various provisions of those laws. These categories would translate into chapters of the consolidated land use code.

A consolidated land use code could have the following chapters:

• Policies: The major policies that guide state land-use and environmental laws, including policies concerning growth management, shorelines management, and environmental protection.

• Definitions: A consolidated definitions chapter.

• State and Local Responsibilities: The state's roles and responsibilities with respect to environmental and land use laws and the framework for local government authority within the context of the state's policies.

• Coordinated State Planning: Coordination of state agency activities related to environmental and land use policies.

• Local and Regional Planning: A comprehensive planning statute integrating the planning enabling statutes with the GMA. It could also include regional transportation planning laws.

• Environmental Analysis: Coordinating the state environmental policy act into the framework of the consolidated land use code.

• Development Regulations: The use and application of development regulations as they provide controlling policy for local land-use and environmental regulations.
• Subdivision of Land: The process for subdividing land.

• Project Review and Permitting: The guidelines for conducting state and local project review, consolidated permit processes, and public involvement in those processes.

• Funding: Funding for infrastructure, impact fees, and incentives to coordinate actions among different governments.

• Enforcement: The consequences of non-compliance.

• Appeals and Judicial Review: Administrative and judicial review of state and local government land use planning and project decisions.

• Miscellaneous: This chapter includes severability sections, effective dates, and other existing statutory provisions that do not fit in another category.

These chapters are discussed later in the report under the following subject headings:

• Governance: Policies; State and Local Responsibilities

• Planning: Coordinated State Planning; Local and Regional Planning

• Environmental Review and Permitting: Environmental Analysis; Development Regulations; Subdivision of Land; Project Review and Permitting

• Appeals and Judicial Review

• Enforcement

• Funding

Principles

As a result of the hearings it held over the last three years, the Commission concluded that a consolidated land use code would be an effective means of accomplishing the legislative goal of using the GMA as the integrating framework for land use and environmental law in Washington. The Commission adopted four principles to guide its development of a consolidated land use code. They are:

• Protection of environmental values must be as strong or stronger than today;

• The permit system must be more efficient for all applicants, big and small without sacrificing environmental protection;

• The total cost for complying with the code for counties and cities must be no greater than it is today; and

• The opportunity for meaningful public participation in all stages of the planning and permitting process must be retained or enhanced.

Any subsequent effort to implement a consolidated land use code may want to elaborate on these goals and how they can be improved. There were also a number of views expressed over the proper phasing and weight to be given each of the goals, as discussed below.

Protection of the Environment

A primary goal of many of the statutes included in the consolidated land use code is the protection of specific environmental resources or inclusion of environmental values in the decision making process. The consolidated land use code should not only maintain these goals, but can enhance them. This will be necessary to gain the public support to make the changes. Some expressed the view that environmental protection must be stronger than it is today, because they view current laws as not accomplishing sufficient protection. Others view the regulatory process as not giving sufficient deference to property rights.

Permit System Efficiency

The permit system is the chief means by which land use and environmental policies are implemented. An inefficient permitting system does not further those policies and can lead to frustration and efforts to undermine or weaken the policies. An efficient permitting system should further those policies at the least cost to the participants. However, efficiency should not be used as a means to undermine environmental protection.

System Costs

The consolidated land use code should have demonstrable benefits to all parties. Local governments and the public are still catching up with the changes enacted over the last several years. Many costs were created by vague GMA requirements. Future changes to state laws must provide more clarity and certainty to existing processes. Some believe a consolidated land use code will require increased costs, in order to protect the environment, and that a goal of no cost increase is not realistic. Local governments are firm in their claim that there should be no unfunded mandates. Small builders point to new or higher permit fees as an obstacle to affordable housing. In sum, adequate funding is an essential element of a consolidated land use code.

Public Participation

A consolidated land use code must result in at least the same level of public participation as today. Its objective should be to enhance and make public participation opportunities more meaningful.

Statutes Included in Consolidated Land Use Code

The Consolidated Land Use Code proposed by the Commission would create a new title in the Revised Code of Washington and move existing provisions of several statutes into that title. The major statutes that would be moved include:

• State Environmental Policy Act (RCW 43.21C)

• Growth Management Act (RCW 36.70A)

• Shoreline Management Act (RCW 90.58)

• Environmental Hearings Office (RCW 43.21B)

• Planning Enabling Statutes (RCW 35.63, 35A.63, and 36.70)

• Regional Transportation Planning Act (RCW 47.80)

• Subdivision and Platting Statute (RCW 58.17)

• Impact Fees (RCW 82.02)

• Project Review (RCW 36.70B)

• Land Use Petition Act (RCW 36.70C)

Other statutes may also be appropriate for inclusion in the consolidated land use code. For example, school districts and port districts play an important role in land use decisions, but are not governed by the GMA. Over time, additional statutes may also be consolidated into the code. For example, a number of other special purpose districts operate under separate planning statutes which can lead to fragmented land use planning. See, e.g., RCW 57.16.010 requiring water-sewer districts to adopt a comprehensive plan before undertaking certain kinds of actions. Hydraulic project approvals and certain forest practices (Class IV conversions) are also candidates for inclusion in the consolidated land use code.

The GMA should serve as the integrating framework for land use and environmental decisions. Integrating environmental protection into the land use planning and decision making process is controversial. Many of the GMA decisions local governments have made are based on certain assumptions, such as that current SEPA with its EIS process is available to address specific impacts of individual projects. The transition to a system where some significant land use decisions are made during development and adoption of comprehensive plans and development regulations will require adjustments on the part of local governments and the public. In some cases it may require local governments to revisit planning decisions made and development regulations adopted in the past to assure that environmental impacts have been adequately analyzed and addressed. In other cases, it may result in limitations on the issues neighbors may be able to raise during project review.

Some environmental groups believe that SEPA and the SMA should remain as independent statutes. The tribes also strongly believe in the need to retain these as separate laws. They also point out that other laws, such as those governing forest practices, flood control, and shellfish protection are important for environmental protection and are not necessarily governed by the GMA.

Status Quo

This option would not make any systematic changes to the land use and environmental laws. Changes necessary to address specific problems or issues would be handled individually rather than as part of a consolidated land use code.

• There are many who believe that the need for a consolidated land use code has not been demonstrated. If there are problems or issues with specific statutes, they suggest these should be addressed individually. They believe wholesale changes to existing law, even if done over time, will cause more problems than it will solve.

• The current land use and environmental system has evolved over time and includes not only statutes but judicial interpretations. Members of the environmental community express concern that the changes contemplated by a consolidated land use code would disrupt these years of practice and experience and cause more litigation and uncertainty.

• There are some who believe that the current land use and environmental system does not function well. They see it as too costly. They note that part of the problem is due to the piecemeal changes that have been enacted over the years. They believe there is a need to review the system as a whole and make the changes necessary to more effectively achieve the goals of the different environmental and land use laws.

• Some in the development community believe that the current system has created an atmosphere of mitigation through litigation. They believe that process becomes a substitute for environmental standards.

Staged Consolidation

Another option is to take a first step towards implementation of a consolidated land use code - existing land use and environmental laws could be recodified within a new title of the Revised Code of Washington. Future efforts would focus on more fully integrating these different statutes with one another and addressing the substantive changes discussed elsewhere in this report.

Pros:

• Proponents of this option suggest that placing related environmental and land use statutes into proximity with each other will make it easier to understand the relationships between the different statutory provisions.

• Proponents also argue that this approach will allow time for parties to adjust to the changes and assure that implementation goes smoothly. If sufficient time is allowed between adoption of the different stages and their effective date, problems can be identified and corrected before the changes go into effect.

• Local governments express concern about the unknown impacts that recodifying existing statutes will have on local governments. They suggest that at a minimum, there will be a need to review local codes to change statutory references. This will take time and cost money that could be better spent on other tasks.

• Some in the business community see this option as amounting to no more than a cosmetic change that does not get at the real value of integrating the different land use and environmental statutes.

• Members of the environmental community are concerned about unintended case law consequences that might result.

Consolidation in a Single Step

Under this option, the entire consolidated land use code would be developed and adopted as a whole.

• Proponents of this option note that it would give more time to the development of ideas presented in this report.

• Proponents also suggest that this option will be more likely to ensure that consolidation results in a consistent code that integrates the different statutes.

• Some in the local government and environmental communities believe that the changes to existing procedures and systems that would be brought about by a consolidated land use code implemented at one time could be too disruptive. They fear that at a time when local and state governments have limited resources, they will be forced to address procedural issues that may not provide any clear environmental benefit.

• Some in the environmental community are concerned that in integrating different statutes into a consolidated land use code, important state policies will lose out to the desire to achieve efficiency.