CENTRAL PUGET SOUND
GROWTH PLANNING HEARINGS BOARD
State of Washington
CITY OF
EDMONDS)
)
and)Case No. 93-3-0005
)
CITY OF
LYNNWOOD,)
)FINAL DECISION
Petitioners,)AND ORDER
)
v.)
)
SNOHOMISH COUNTY,)
)
Respondent.)
)
A.PROCEDURAL HISTORY OF THE
CASE
On
April 2, 1993, the City of Edmonds (Edmonds) filed a Petition for
Review with the Central Puget Sound Growth Planning Hearings Board (the
Board), assigned Case No. 93-3-0004.The Petition challenged the validity of
certain of the county-wide planning policies (CPPs) adopted by
Snohomish County (the County).On April 5, 1993, the City of Lynnwood
(Lynnwood) filed a Petition for Review with the Board, also
challenging the validity of certain of the County CPPs.On April 12, 1993, the Board issued an
"Order of Consolidation and Notice of Hearing" which consolidated the two
cases and assigned Case No. 93-3-0005.On April 28, 1993, the County filed with
the Board "Snohomish County's Answer to Petitions for Review."
On
May 7, 1993, the County filed with the Board "Snohomish County's Complete
Index of Documents for County-wide Planning Policies (Ordinance 93-004)."
A
prehearing conference with the parties was held on May 13, 1993.The parties discussed the legal issues,
possible briefing schedules and the preparation of the record, and related
case matters.
On
May 19, 1993, the County filed a revised Index, entitled "Snohomish County's
Complete Index of Documents for County-Wide Planning Policies (Ordinance
93-004) (Revised May 17, 1993)."
On
May 24, 1993, the Board issued a Prehearing Order.The Order set forth the legal issues,
established a schedule for filing motions, briefs, preliminary and final
witness and exhibit lists, and other case matters.The Order established June 7, 1993 as the
deadline for filing Motions to Supplement the Record and June 14, 1993 as
the deadline for filing Responses to such Motions.
On
June 7, 1993, Lynnwood filed with the Board "Lynnwood's Motion to Supplement
Record" and "Lynnwood's Preliminary Exhibit List."Both documents indicated that Lynnwood
desired to supplement the record with a January 7, 1993 letter from Marc
LaFerrier, Lynnwood Associate Planner, to Steven Toy, Snohomish County
Planning Department.
On
June 14, 1993, the County filed with the Board "Snohomish County's Response
to Lynnwood's Motions to Supplement the Record to Allow Additional
Documentary Evidence and Testimony of Witnesses."
On
June 22, 1993, the Board issued an "Order on Motions to Supplement the
Record and Order Granting Edmonds' Motion to Amend Pleading to Voluntarily
Dismiss Portions of Appeal [i.e., Legal Issue #7]."
On
June 29, 1993, the County filed with the Board "Snohomish County's Objection
to Order on Motions to Supplement Record, or, in the Alternative, Snohomish
County's Motion to Allow Discovery."On July 9, 1993, the Board issued "Order
Denying Snohomish County's Motion to Supplement the Record or Allow
Discovery and Ordering that Witness Testimony be Limited to Evidence in the
Record or Admitted Supplementary Evidence."
On
July 1, 1993, Edmonds filed with the Board a "Stipulation of Fact" regarding
the proper interpretation of policy HO-21.
On
July 8, 1993, the County filed with the Board "Stipulation Concerning
Preparation of the Record" on behalf of the parties.
On
July 13, 1993, 1000 Friends of Washington (1000 Friends) filed with
the Board a "Motion for Amicus Curiae Status."
On
July 14, 1993, Lynnwood filed with the Board "Lynnwood's Opening
Brief."On the same date, Edmonds
filed with the Board its "Prehearing Brief."
On
July 16, 1993, Lynnwood filed with the Board the "City's Response to Motion
to File Brief of Amicus Curiae" and on July 21, 1993, the County
filed with the Board "Snohomish County's Brief in Support of Amicus
Curiae."On July 21, 1993 the
Board heard oral argument on the Motion for Amicus Curiae from 1000
Friends as well as from the parties.On July 22, 1993, the Board issued an
"Order Granting Motion by 1000 Friends of Washington for Amicus
Curiae Status."The order limited
participation by 1000 Friends to submitting a brief on legal issues 4a, 6
and 11 only.
On
July 26, 1993 the County filed with the Board "Snohomish County's Responsive
Brief."
On
July 27, 1993 the County and Lynnwood filed a "Motion for Stipulated Order"
and "Stipulation on Issues 4b and 4c."Accordingly, the Board issued an "Order
Granting Motion for Stipulated Order" which dismissed Legal Issues 4b and
4c.
On
July 29, 1993 Lynnwood filed with the Board "Lynnwood's Reply Brief."
The
hearing on the merits of the Petitions for Review was held on August 2, 1993
in the City of Everett Council Chambers.Present were the three members of the
Board:M. Peter Philley, Chris Smith
Towne and Joseph W. Tovar, Presiding Officer.Representing Lynnwood was John Watts;
representing Edmonds was Scott Snyder; representing Snohomish County were
Sue Tanner and Gordon Sivley.Court
reporting services were provided by Duane Lodell of Robert H. Lewis &
Associates.No witnesses testified in
this matter.
The
parties had stipulated to exhibits 1 through 353 from the record below which
are referred to by the letter “R”.Each page of the record is also
consecutively numbered.In addition,
the Board took official notice of :
April 7, 1992 draft of Department of
Community Development Guidebook:Predicting Growth and Change in Your
Community:A Guide to Subcounty
Population Forecasting;
November 16, 1992 draft of Department of
Community Development Guidebook:>The Future of Housing in
Washington:A Guide to Preparing a
Housing Element under the Growth Management Act.
In
addition to the record below, the Board admitted several documents as
supplemental evidence.Edmonds filed
two supplemental exhibits that are referred to by the letter “E”.Lynnwood filed four supplemental exhibits
that are referred to by the letter “L”.In addition, exhibits R-354 through 368
were admitted as supplements to the record.
At
the conclusion of the hearing, the Presiding Officer reminded the parties
that reply briefs to the 1000 Friends amicus brief could be filed
with the Board.On August 9, 1993,
Lynnwood filed with the Board "Lynnwood's Reply Brief to Amicus."
B.FINDINGS OF
FACT
1.On April 4, 1989, the Snohomish County
Executive sent a letter to the Snohomish County Council indicating his
concern about the County’s ability to balance the need for strong economic
growth and quality of life values.R-1, at 3.
2.On June 14, 1989, the Snohomish County
Council adopted Motion No. 89-159, entitled “A Motion Adopting ‘Snohomish
County Tomorrow’ as a Plan to Address the Challenges and Opportunities of
Growth and Requesting the Executive to Direct Departments to Develop a Work
Plan.” The Motion adopted and incorporated by reference the document
entitled “Snohomish County Tomorrow.”R-1, at 3-4.
3.In June, 1989, the Washington State Office
of Financial Management (OFM) developed an interim population
forecast for Snohomish County of 680,585 persons.R-120, at 1198.
4.On August 2, 1989, the County Council
reviewed a Draft Technical Work Program for Snohomish County Tomorrow.R-10, at 122.
5.On October 5, 1989, a presentation was given
to a group of city and county council members from throughout Snohomish
County about the Snohomish County Tomorrow plan.As a result, a body named “Snohomish County
Tomorrow” (SCT) was created.R-10, at 122.The SCT Assembly included elected officials
from cities and towns within the county, the Tulalip Tribes and the County.
6.A SCT Steering Committee was established as
the “action arm” of the SCT, comprised of elected officials selected by the
county and by each city and town and the tribes.It met approximately 41 times between
January 10, 1990 [R-10, at 122] and February 12, 1992 [R-10, at 126].
7.The Planning Advisory Committee (PAC)
to the SCT is composed of planning directors and other staff of SCT member
governments.The SCT’s Community
Advisory Board (CAB) is comprised of citizen representatives from
throughout the county.
8.On July 1, 1990, the Growth Management Act
(GMA or Act), SHB 2929, became effective.
9.On July 19, 1990, the SCT Steering Committee
drafted a document entitled “Snohomish County Tomorrow Steering Committee
Goals.” R-22, at 188.Subsequently, on
August 22, 1990, a modified draft of this document was also prepared by the
Steering Committee.span>R-56, at 476.
10.On September 26, 1990, the Snohomish County
Council adopted Motion No. 90-294.The
Motion adopted the SCT Steering Committee’s August, 1990 goals
document.R-56, at 476.
11.In October, 1990, the SCT Steering Committee
published a document entitled “Snohomish County Tomorrow Goals.” R-56.This document contained a “Snohomish County
Tomorrow Assembly Resolution” entitled “Approving Goal Statements for Growth
Management in Snohomish County” that was signed by a County representative
and representatives from sixteen cities in Snohomish County, including
Edmonds and Lynnwood.R-56, at
428-29.The goals document also
contained the steering committee’s mission statement.R-56, at 432.
12.On October 25, 1990, the General Assembly of
the Puget Sound Council of Governments (PSCOG) approved Resolution
A-90-01, adopting VISION 2020, the “Growth and Transportation Strategy for
the Central Puget Sound Region.”R-349.
13.A November 8, 1990 SCT table shows the
1989-2010 population forecast, with a 2010 population of 680,585.This forecast was based on the OFM 1989
estimates and 2010 preliminary interim county forecast, the PSCOG's
“Forecast and Analysis Zone" (FAZ) forecast, and the County’s “POPUL”
model.R-119.
14.A February 14, 1991 SCT table shows
1989-2010 population forecasts broken down into regional districts within
the county, using OFM’s interim 2010 forecast as the base.This forecast used the County’s POPUL
model, which, in turn, used the PSCOG’s FAZ forecast.R-120, at 1198-99.
15.On September 25, 1991, the SCT Steering
Committee agreed to utilize the SCT process, framework and goals report as
the collaborative process for adopting countywide planning policies pursuant
to RCW 36.70A.210(2)(a).R-348, at
3347.
16.In September, 1991, the PSCOG published a
document entitled “Step 91-- Central Puget Sound Regional Econometric Model
and Regional Economic and Demographic Forecasts 1990-2020: Technical
Documentation.”R-203.
17.In January, 1992, OFM released its
population projections for Snohomish County.It predicted a county population of 714,244
persons in the year 2012.R-216, at
2134; R-219, at 2146.
18.On February 12, 1992, the SCT Steering
Committee’s “Operating Guidelines” were produced.R-63, at 570.See also R-306, at 2968.
19.On February 18, 1992, a draft population and
employment forecast for the year 2000 was prepared by the Puget Sound
Regional Council (PSRC).R-209, at 2083.
20.On March 5, 1992, the PAC's Population
Projection and Distribution Subcommittee met.R-211.
21.On March 16, 1992, the PSRC prepared a draft
population, households, and household size forecast for the years 1980,
1990, 2000, and 2010. R-212, at 2106.
22.In March, 1992, the SCT Steering Committee
“Operating Guidelines” were revised.R-63.
23.In April, 1992, the “Puget Sound Subarea
Forecasts: Model Calibration and Forecasts” was prepared for the PSRC.R-205.
24.The Transportation Technical Coordinating
Committee and the SCT Community Advisory Board met throughout 1992.R-262, 263, 266; R-80g.
25.A May 15, 1992 draft of the County-wide
Planning Policy was developed by SCT.R-177.See also R-276.
26.On May 28, 1992 the PSRC issued a draft
Vision 2020 Alternative #1 population forecast.R-348, Note at 3380.
27.On or about July 21, 1992, an Interlocal
Agreement was entered into between the County and nine cities within the
county, including Lynnwood and Edmonds, for implementation of the GMA.R-306.
28.On August 5, 1992, the Snohomish County
Planning Department prepared the Initial [year] 2012 Population Forecast for
cities and interim urban growth areas in Snohomish County.The forecast was corrected on August 19,
1992."These forecasts are based on
the May 28, 1992 draft PSRC Vision 2020 Alt. #1 forecast, adjusted to add to
the Office of Financial Management 2012 population projection of 714,244
people for Snohomish County."Individual city calculations were then
derived by using the County’s POPUL model.R-227, at 2174-2175.
29.In August, 1992, Draft “Countywide Planning
Policies for Snohomish County” were prepared.R-82, at 954.The text of this draft indicates “SCT Draft
9/12/92.”R-82, e.g., at 956.
30.On September 11-12, 1992, the SCT Steering
Committee held a weekend retreat to review draft county-wide planning
policies.R-279, at 2567.See also R-348, at 3347.
31.On September 12, 1992, the Initial [year]
2012 Population Forecast for cities and interim urban growth areas in
Snohomish County that had been prepared on August 5, 1992 was revised.This forecast was attached as Appendix B to
the CPPs.R-348, at 3379-80.
32.On September 29 and October 7, 1992, the SCT
Steering Committee’s Policy Subcommittee held meetings.R-279, at 2567.
33.An October 28, 1992, draft of the
“Countywide Planning Policies for Snohomish County” was prepared following
the SCT Steering Committee Retreat and the SCT Steering Committee’s Policy
Subcommittee meetings.R-279, at
2567-68.
34.On November 9, 1992, the SCT Policy
Subcommittee reached agreement on certain draft policies. R-90, at
1069.A similar document is dated
November 18, 1992.R-91.See also R-348, at 3347.
35.On November 10 and 24, 1992, the Snohomish
County Planning Commission held workshops to review the proposed Countywide
Planning Policies.R-317, at 3071.
36.On December 2, 1992, the SCT Steering
Committee met and reviewed the recommendations of its Policy
Subcommittee.R-341.
37.>On December 9, 1992, the SCT Steering Committee
accepted the Countywide Planning Policies.R-268 and 346.See also R-342, at 3259-60.
38.On December 15, 1992, and January 19, 1993,
the Snohomish County Planning Commission held public hearings on the
Countywide Planning Policies.R-317,
at 3071.
39.On January 25, 1993, the City of Lynnwood
adopted Resolution No. 93-2, entitled “A Resolution Opposing Snohomish
County Council’s Adoption of Snohomish County Tomorrow Steering Committee’s
December 9, 1992 Draft of Countywide Planning Policies, and Recommending
Revisions Thereto.”R-326, at 3172.
40.On February 4, 1993, the Snohomish County
Council adopted Ordinance No. 93-004, entitled “Adopting a County-wide
Planning Policy Pursuant to RCW 36.70A.210.”The Ordinance adopted and incorporated by
reference the December 9, 1992 “County-wide Planning Policies for Snohomish
County.”R-348, at 3347.Seealso R-350 for a partial
transcript of the public hearing.
41.On February 20, 1993, Ordinance No. 93-004
became effective.R-348, at 3348.
C.DISCUSSION OF SPECIFIC
ISSUES
The
specific issues pertain to one or both of the petitioners.pan
style="mso-spacerun: yes">
If a specific issue pertains to
Lynnwood, it is followed by the bracketed notation [L].If a specific issue pertains to Edmonds, it
is followed by a bracketed notation [E].If a specific issue pertains to both
petitioners, it is followed by both a bracketed [L] and a bracketed
[E].
Legal Issue No. 1
Does a CPP (UG-7) that
requires development of regulations and incentives that encourage higher
densities and employment concentrations that result in a majority of growth
locating in metropolitan [centers], designated subregional centers, and
pedestrian pockets, violate local land use powers of Lynnwood, a designated
subregional center, contrary to RCW 36.70A.210? [L]
UG-7 states:
As part
of the joint comprehensive planning process for each UGA, develop
regulations and incentives that encourage higher densities and employment
concentrations so that the majority of growth locates within the
Metropolitan Centers, the designated Subregional Centers and Pedestrian
Pockets.R-348, at 3355.
Positions of the Parties
a.City of Lynnwood
Lynnwood maintains that "UG-7
could be interpreted as requiring each city in an urban growth area
(UGA) in Snohomish County, including Everett and Lynnwood, to target
through their planning processes a population growth of 110,000 into Everett
and Lynnwood."Lynnwood's Opening
Brief (LOB/b>), at 8-9.Lynnwood
points out that the only "metropolitan center" in Snohomish County is the
City of Everett; likewise, the only "designated subregional center" is the
City of Lynnwood.As an example,
citing to the "Initial [year] 2012 Population Forecast" attached to the CPPs
as Appendix B to UG-2 (see R-348, at 3379-80), which shows a 219,944
increase in population between 1992 and 2012, Lynnwood claims that "a
majority of growth" equals approximately 110,000 people that each city would
have to plan for.Lynnwood also points
out that a recommendation by County staff to correct this "factual error"
(because “the majority of growth in the county is not forecasted to occur in
the three listed types of urban centers but in the urban growth areas as a
whole” [R-332, at 3198] by adding the words "the urban growth areas
including" after the word "within" was never adopted.LOB, at 9.
b.Snohomish County
The County maintains that
UG-7 is a "process" policy.
Policy
UG-7 does not call for "development" regulations.Rather, the policy states that during the
joint comprehensive planning process for each UGA, as detailed in interlocal
planning agreements between the county and its cities, the county and cities
are to jointly develop regulations and incentives that encourage higher
densities and employment concentrations and thus, support the allocations of
population and employment [to centers].Snohomish County's Responsive Brief
(SCRB), at 33, quoting Snohomish County's Answer to Petitions for
Review, at 6.
The County disputed
Lynnwood's claim that it was a designated subregional center.Instead, the County claimed that Lynnwood
nominated itself as such a center but that the final designations of centers
had not taken place.The County quoted
Vision 2020 language (R-122, at 1213) to support this contention.The County also maintained that initial
Vision 2020 guidelines for designations of centers no longer applied.As a result, Lynnwood's population would
not increase as greatly as under the earlier guidelines.SCRB, at 34.
Because Legal Issue 4b had
been withdrawn, the County argued that the only remaining issue regarding
UG-7 was whether the County had the ultimate authority to allocate
population and employment to cities.The County alleged that this same issue
also applied to UG-2 and UG-4.SCRB,
at 34 and 36.
Discussion
Because the Board concludes
below in Legal Issue 4a that counties do have the authority to allocate
population and employment, Legal Issue No. 1 has become moot.
Conclusion No. 1
Legal Issue No. 1 has become
moot.Refer to the Board's discussion
below of Legal Issue No. 4a.
Legal Issue No. 2
Does a CPP (UG-4) that
establishes a special process for citizen participation violate local land
use powers? [L]
Lynnwood challenges the
underlined language of policy UG-4:
The
regional Vision 2020 plan should be implemented through a collaborative
planning process between the cities and the county.This process should include the citizens
appointed by the cities and the county within the affected areas.The plan should establish a hierarchy
and recommended designation of centers within urban growth areas, as
specifically described on pages 20-25 of the Vision 2020 plan and as
modified by the Puget Sound Regional Council or Snohomish County
Tomorrow.(Emphasis added).
Positions of the Parties
a.City of Lynnwood
Lynnwood interprets the
direction "This process should include..." as substantive, citing the
Board's Snoqualmie decision (Snoqualmie v. King County,
CPSGPHB Case No. 92-3-0004 (1993)).LOB, at 53.Furthermore, it assumes that "centers"
refers to the metropolitan or subregional center designations in Vision
2020.Since Lynnwood claims to be a
designated subregional center,
...the
policy "directs," or could be interpreted to direct, the County to
appoint citizens as part of Lynnwood's planning process to implement
Vision 2020.State law on planning
processes for code cities is codified at RCW 35A.63, and prescribes a
required process for municipal land use decisions involving the city council
and city planning commission, and public participation through public
hearings. RCW 35A.63.070.Provision
allowing the County to appoint citizens (whether local residents or County
residents is unclear but immaterial) as part of Lynnwood's process adds a
requirement to the statutory framework, and thereby alters the land use
powers of the City, contrary to GMA.LOB at 53-54 (emphasis in original).
Lynnwood asks that the second
sentence of UG-4 be stricken, or revised to read that it only applies to
"affected areas" that cross jurisdictional boundaries.
b.Snohomish County
The County asks the Board to
examine the portion of UG-4 at issue in the context of the policy as a
whole, and in the context of the preceding sentence."...the only reasonable meaning to ascribe
to the second sentence is that cities will appoint citizens for the
cities' part of the collaborative planning process and the county will
appoint citizens for its part of the process."The County cites to R-306, the Interlocal
Agreement, as evidence that such a process is already in place.SCRB, at 37.
The County argues that UG-4
meets all three of the Board's tests for validity:
(1) It
meets a legitimate regional objective; (2) It addresses only plans and not
implementing regulations; and (3) It is consistent with the GMA.SCRB, at 37-38.
Discussion
RCW 36.70A.210, County-wide
planning policies, requires that a county's policy address:
(3)(f)
Policies for joint county and city planning within urban growth
areas.
The first section of the
"Countywide Planning Policies for Snohomish County" is entitled "Policies to
Implement Urban Growth Areas (RCW 36.70A.110)."The introductory text preceding policies
UG-1 through -16 cites the GMA requirement for UGAs, and references the
interlocal agreements between the county and most cities for joint planning
pursuant to the GMA.R-348, at 3352.
The Interlocal Agreement
between Snohomish County and nine southwest cities, including Lynnwood,
signed in mid-1992, sets forth a process for coordinating planning and
implementation of the GMA.Among its
purposes are to provide for the establishment of a joint comprehensive
planning area (JCPA) encompassing the urbanized and urbanizing areas
adjacent to or surrounding the nine cities, a planning process for
preparation of a joint comprehensive plan for that area, and a means by
which citizens can participate in that process.R-306, at 2954-2955.A Growth Management Coordinating Committee
(GMCC) has representatives appointed by the parties to the Agreement;
they may be local government officials, or citizens residing within the
planning area.Its responsibilities
include review of plans, presentation of proposals to the public at
meetings, workshops and open houses, and recommendations to member planning
commissions.>R-306, at 2960-2961.
Section 5 A. of the
Interlocal Agreement, Joint Planning Team (JPT), directs that:
The
County and each City that is a party to this agreement shall each assign at
least one staff person to the JPT which shall conduct the planning within
the IUGA and the Joint Comprehensive Planning Area (JCPA)...and provide
staff support to the Growth Management Coordinating Committee...R-306, at 2959.
Section 5 C., Growth
Management Coordinating Committee, establishes a body of representatives
appointed by each city and an equal number appointed by the County, with
general procedures for weighted voting and specific procedures for votes on
consistency of plans.It directs that:
2.The GMCC shall provide guidance and
coordination to the JPT and to the City and County planning commissions in
the preparation of comprehensive plans within the JCPA.R-306, at 2960.
Section 5 D., Planning in
Incorporated Areas and Unincorporated Islands, provides:
Comprehensive Planning for
the Cities will be conducted by the Cities, which shall allow for
participation by citizens from adjacent unincorporated areas.Planning for unincorporated "islands" of
less than 150 acres which are surrounded by the corporate limits of one or
more cities, shall be conducted jointly by the County and the adjacent
Cities, with the Cities taking the lead.R-306, at 2961.
Section 5 E., Role of
Planning Commissions and County/City Councils, provides that:
The City
and County Councils will conduct their own meetings and hearings prior to
the adoption of the joint comprehensive plan....R-306, at 2961.
Section 8, Relationship to
Existing Laws and Statutes, states:
This
agreement in no way modifies nor supersedes existing laws and statutes....
The
ultimate authority for land use and development decisions is retained
respectively by the County and Cities.By executing this agreement, the County and
the Cities do not in anyway [sic] abrogate their respective decision-making
responsibility accorded them by law.R-306, at 2962.
Policy UG-4, standing alone,
is not a model of clarity and precision.If read in isolation, the portion of UG-4
providing for a special citizen participation process could be read as
directing the "worst case" outcome envisioned by Lynnwood.Like courts in interpreting statutes, this
Board turns to rules of statutory construction when interpreting
GMA-mandated documents enacted by local jurisdictions, such as CPPs,
comprehensive plans and development regulations.
A document adopted pursuant
to the GMA which is clear on its face is not subject to Board
interpretation.However, an ambiguity
exists if the document is subject to more than one reasonable
interpretation.SeeMarriage of
Kovacs, 121 Wn.2d 795, 804, ___ P.2d ___ (1993) (citing Biggs v.
Vail, 119 Wn.2d 129, 134, 830 P.2d 350 (1992) and Kadoranian v.
Bellingham Police Dep’t., 119 Wn.2d 178, 184-85, 829 P.2d 1061
(1992)).N>The cities and the County each
have reasonable interpretations of UG-4.Unfortunately, they are totally opposite
interpretations.An ambiguity exists
because UG-4 is not clear on its face.If the language is susceptible of two
constructions, one of which will carry out and the other defeat the manifest
legislative object, it should receive the former construction.Clements v. Travelers Indemnity Co.,
121 Wn. 2d 243, 254, ___ P.2d ___ (1993) (citing PUD 1 v. Public Empl.
Relations Comm’n., 110 Wn.2d 114, 120, 750 P.2d 1240 (1988) (quoting
Roza Irrig. Dist. v. State, 80 Wn.2d 633, 497, P.2d 166
(1972))).
Therefore, when a GMA
document is subject to interpretation, this Board will attempt to construe
it in the manner that best fulfills the legislative purpose and intent.SeeMarriage of Kovacs, at 804.As the Washington Supreme Court has held:
In
construing statutes, ‘the spirit and intent of the statute should prevail
over the literal letter of the law’ and ‘there should be made that
interpretation which best advances the perceived legislative purpose.’Martin v. Triol, 121 Wn.2d 135, 143,
___ P.2d ___ (1993) (quoting Wichert v. Cardwell, 117 Wn.2d 148, 151,
812 P.2d 858 (1991)).
Likewise, the court has said:
We avoid
a literal reading of a statute if it would result in unlikely, absurd, or
strained consequences.The spirit or
purpose of an enactment should prevail over the express but inept
wording.State v. Elgin, 118
Wn. 2d 551, 555, 825 P.2d 314 (1992) (citing State v. Neher, 112
Wn.2d 347, 351, 771 P.2d 330 (1989) and State v. Day, 96 Wn.2d 646,
648, 638 P.2d 546 (1981)); see also Bowles v. Dept. of Retirement
Systems, 121 Wn.2d 52, 77, ___ P.2d ___ (1993).
Therefore, the preamble or
statement of intent can be crucial to interpretation of a statute or GMA
document.See Spokane County Health
District v. Brockett, 120 Wn.2d 140, 151, 839 P.2d 324 (1992) (citing
Roy v. Everett, 118 Wn.2d 352, 356, 823 P.2d 1084 (1992)).
In the Introduction section,
under the heading “Purpose”, the CPPs provide:
...
Nothing in this section shall be construed to alter the land use powers of
the cities (RCW 36.70A.210)....AN>R-348,
at 3350.
This sentence is a direct
quote from the last sentence of RCW 36.70A.210(1). Although the reference to
the words “this section” are misplaced in a CPPs format (since the actual
reference to “this section” is to RCW 36.70A.210 and not to the County’s
CPPs), the Board nonetheless concludes that by incorporating this sentence
into the “purpose” provisions of its CPPs, the Snohomish County Council’s
clear intent was not to alter the land use powers of cities.
Read in the context of UG-4
as a whole, taking into consideration the above-quoted purpose text of the
introductory section of the CPPs, as well as the provisions of the
Interlocal Agreement, the Board is persuaded that the challenged portion
will not have the effect feared by Lynnwood.The County cannot usurp
Lynnwood’s authority to appoint members to the city’s own planning process
regardless whether the designees reside within or outside the city
limits.The Board will not interpret
UG-4 to permit such a seizure of authority.
Conclusion No. 2
The Board concludes that the
challenged portion of Policy UG-4 relating to citizen participation is in
compliance with the GMA.
![endif]>
Legal Issue No. 3
Is Policy UG-4
otherwise in compliance with the Growth Management
Act?[L]
a.City of Lynnwood
The City of Lynnwood's
challenge to Policy UG-4 was set forth in two legal issues.Issue No. 2 asked whether UG-4 established
a special citizen participation process that violated local land use
powers.Lynnwood's second concern with
UG-4 is related to Issue 4b, which asks:"If the county does have the authority to
allocate population and employment to the cities, do UG-2, UG-4, UG-7 and
UG-8 effectuate such allocation?"
Lynnwood states:
Since no
fiscal analysis has occurred, the CPPs on population can only be preliminary
allocative exercises, which have no binding or mandatory effect on cities
whatsoever.The Board should find that
the County CPPs that purport to allocate population (UG-2, UG-4, UG-7, and
UG-8) and particularly Appendix B, are not binding on a cities' [sic]
comprehensive plan.LOB, at 40.
Lynnwood then asks the Board
to declare that Policy UG-4 is "...non-binding and without substantive
effect for purposes of any consistency challenge."LOB, at 42.In its discussion, Lynnwood asks:
Is it a
procedural policy only, with the general policies of Vision 2020 serving as
a working basis for or guiding the collaborative planning process?Is it a substantive policy, that directs a
result which the collaborative planning process must attain.Since the word "implement" in UG-4 ("Vision
2020 plan should be implemented") means "to accomplish" and "to carry into
effect," Webster's New World Dictionary (Second College Edition, 1980), UG-4
could be construed to require a tangible result against which consistency is
measured.
...
If UG-4
is something more than procedure, and is given substantive effective [sic]
so that it becomes a measure of comprehensive plan consistency, it is also
flawed and inconsistent with GMA because it dictates or could be interpreted
to dictate a specific result involving population allocations in advance of
UGA designations, city and county comprehensive plan adoption, and prior to
fiscal impact analysis, and negates a city's ability to achieve an
internally consistent plan.
UG-4 is
also flawed and inconsistent with GMA because of the modification language
in UG-4... any attempt to create a substantive CPP that is subject to being
changed by anyone other than the County Council is inconsistent with
GMA.LOB, at 44-5.
b.Snohomish County
The County responds by citing
its Answer to Petitions for Review, at 6:
Policy
UG-4 does not mandate any specific population densities.The policy calls for a collaborative
planning process between cities and the county to establish a hierarchy and
recommended designation of centers within UGAs as described in the Vision
2020 plan, but also makes clear that in its recommendation to the county
council, Snohomish County Tomorrow may modify the specifics of the
Vision 2020 plan.n style="mso-spacerun: yes">
SCRB, at 33 (emphasis
added).
The County then states that:
"With the withdrawal of Issue 4(b) from the case, it appears that the only
remaining issue concerning ... UG-4 is identical to that discussed above
with respect to UG-2: Does the county have the ultimate authority to
allocate population and employment to the cities?"SCRB, at 34.
Discussion
Because the Board concludes
below in Legal Issue No. 4a that counties do have the authority to allocate
population and employment, that part of Lynnwood's challenge to Legal Issue
No. 3 related to the County's authority to allocate has become moot.
Next, Lynnwood asks whether
UG-4 is procedural or substantive regarding implementation of Vision 2020,
and if the latter, whether future modifications to that plan would be
binding on the City.The regional
Vision 2020 Plan, approved by the PSCOG in 1990, was intended to serve as
the regional long-range planning framework for guiding growth and
transportation in the Central Puget Sound.Finding of Fact No. 12.The Plan included a process for designating
centers within the urban growth areas where population and employment would
be concentrated.R-349, at 3403-3407.
Lynnwood alleges that the
portion of UG-4 that authorizes the PSRC or SCT to modify the Vision 2020
plan is "... flawed and inconsistent with the GMA."
The threshold question here
is whether modification to a plan by a body other than the adopting
authority, and subsequently modified by that body or another group, may
directly control the collaborative planning process of UG-4.The prospective designation of centers
within Snohomish County will significantly affect the comprehensive planning
and implementation of the affected cities and the County.The process contemplated in UG-4, involving
a joint cities/county recommendation on designation of centers, is an
appropriate response to the Act's instructions for cooperative and
coordinated planning.
However, Policy UG-4 directs
that the joint recommendation follow the specific directives of Vision 2020,
including such modifications as may be made subsequent to the adoption of
the CPPs.This policy, as written, is
not in compliance with the Act.
In Snoqualmie, the
Board considered the extent of authority of a growth management planning
council (GMPC), established by interlocal agreement among King County and
the cities in the county, to adopt or amend CPPs or carry out implementation
actions.The Board concluded:
The GMPC
may exercise authority delegated to it to perform certain tasks such as
establishing specific population and employment goals, but its work remains
only recommendations unless and until the King County Council adopts them by
amending the King County CPPs.The
GMPC's actions alone have no binding effect on cities within King County,
nor must cities have comprehensive plans that are consistent with GMPC
recommendations.The actions of the
King County Council are controlling -- the Board will only review the King
County Council's action for compliance with the GMA and not those of the
GMPC.
The Board holds this
conclusion to be applicable to the issue before us.
If the County intends that
future modifications to Vision 2020, by the PSRC or SCT, will shape the
preparation of comprehensive plans within the county, then it must amend the
CPPs to incorporate such changes.
The following is a
non-inclusive list which the County may use to bring Policy UG-4 into
compliance with the Act:
1)Strike "...and as modified by the Puget
Sound Regional Council or Snohomish County Tomorrow;" or
2)Add a proviso that substantive modifications
will be made by amendments to the CPPs by the Snohomish County Council; or
3)Strike "...as specifically described on
pages 20-25...." and insert "... after consideration..."
Conclusion No. 3
Because
the Board concludes below in Legal Issue No. 4a that counties do have the
authority to allocate population and employment, that portion of Legal Issue
No. 3 related to the County's authority to allocate has become moot.
The
Board concludes that Policy UG-4's requirement for planning under
prospective modifications to Vision 2020 is not in compliance with the Act,
because in any future consistency challenges of UG-4, the Board will
consider only the enactments of the County Council, not those of the
PSRC or SCT.That portion of the
policy must be deleted or amended to be in compliance with the Act and the
Board's Order.
Legal Issue No. 4a
Does
the county have the authority to allocate population and employment to the
cities rather than just to the urban growth areas?[L]
Origin of Issue 4a
Issue
4a is the result of several actions taken by the parties and the Board since
the filing of Lynnwood's Petition for Review.That Petition stated:
...Lynnwood's
objections to Snohomish County's CPPs...(include) Policy UG-2, which
incorporates population forecasts (Appendix B), and improperly confers on
the Snohomish County Tomorrow Steering Committee the authority with respect
to population forecasts and density standards.Petition for Review at 2-5.
At
the Prehearing Conference of May 13, 1993, proposed legal issues were
reviewed.The matter of population
allocation was subsequently split into three issues as follows:
4a.Does the county have the authority to
allocate population and employment to the cities rather than just urban
growth areas?
4b.If the county does have the authority to
allocate population and employment to the cities, do UG-2, UG-4, UG-7 and
UG-8 effectuate such allocation?
4c.If Snohomish County has allocated population
and employment to Lynnwood, what level of proof is required to support such
an allocation, and has the county met the requisite burden of proof?See Board’s Prehearing Order, filed
June 22, 1993, at 8.
The
parties subsequently stipulated to dismissal of issues 4b and 4c and the
Board so ordered on July 27, 1993.
Although
the sub-issue that explicitly listed UG-2, UG-7 and UG-8 has been dismissed,
those CPPs provide the basis of the disagreement that poses the fundamental
question of the County's authority.UG-2 is most germane to this issue,
particularly the underlined portions.It provides:
UG-2Allocate growth projections consistent with
the county-wide planning policies through a cooperative planning process
involving Snohomish County Tomorrow and including the following steps:
a.Initial population projections will be
based on the following sources:
1. The 20-year population projection of the
Office of Financial Management (OFM) for Snohomish County;
2. The Puget Sound Regional Council's (PSRC)
Vision 2020 population distribution;
3.A
further distribution of the population forecasts within each of the 47 PSRC
Forecast Analysis Zones in Snohomish County to arrive at forecasts for
cities (within current city limits) and for preliminary urban growth areas
subject to further Snohomish County tomorrow review prior to finalization;
The forecasts shown in appendix B are a
starting point.
b.The
Snohomish County Tomorrow Steering Committee will review and recommend the
initial population forecasts and density standards to the County Council for
incorporation into the countywide policies.
style="mso-tab-count:
1">
c. Each city will initially determine land capacity and its
ability to accommodate forecasts within current city limits and the county
within unincorporated areas.
d.Initial employment projections will be
based on the PSRC's Vision 2020 employment projection and distribution for
the PSRC's Forecast Analysis Zones within Snohomish County.
e.The
Joint Planning Teams and the Growth Management Coordinating Committees
within the interim Urban Growth Areas will investigate in greater detail the
initial population and employment forecasts for their respective joint
comprehensive planning areas and compare them with the holding capacity of
each urban growth area for residential and non-residential land uses.
f.The
Joint Planning Teams and the Growth Management Coordinating Committees will
make recommendations on the capacity and ability of each urban growth area
to finance and provide urban services and capital facilities for the
projected growth.
g.As
the comprehensive planning process proceeds in each jurisdiction and more
detailed land, capital facilities and urban service capacity information
becomes available, the Steering Committee may evaluate the initial
population allocations and densities and recommend refinements or amendments
to the County Council consistent with the countywide planning policies.
h. The Snohomish County Tomorrow Steering
Committee and the County Council will incorporate the final population
and employment forecasts in the countywide planning policies prior to
approval of the comprehensive plans which meet the requirements of the
Growth Management Act, not later than March 31, 1993.R-348, at 3353-3354 (emphasis added).
Positions of the Parties
a.City of Lynnwood
Lynnwood
argued that its sovereignty would be seriously undermined if the County has
the authority to allocate population and employment.In brief, it argued that:
...
zoning ordinances, by which density levels are set, are development
regulations.As such, a city's zoning
ordinance is a "local land use power" not affected by County adoption and
implementation of CPPs under RCW 36.70A.210, or this Board's decision in
Snoqualmie.LOB, at 20.
Lynnwood
cites case law to establish that zoning, rather than comprehensive plans,
establishes density and is controlling.A municipality's state constitutional
authority, derived from Article 11 § 11, was also cited.LOB, at 21.
Lynnwood
also argues that a variety of other statutes reserve certain powers to the
cities and that because the GMA is silent on these matters, it "... cannot
be construed to set forth the intent of the legislature to alter the land
use, housing, public utility, taxing, expenditure or revenue or other powers
of cities."LOB, at 23.
Lynnwood
argues that cities have a "co-equal" authority with a county to "permit"
density through their comprehensive plans because RCW 36.70A.130(3) reads in
part:
...The county comprehensive plan designating
urban growth areas, and the densities permitted in the urban growth areas
by the comprehensive plans of the county and each city located within
the urban growth areas, shall be revised to accommodate the urban growth
projected to occur in the county for the succeeding twenty-year period.LOB, at 24 (emphasis in original).
Lynnwood
cites statutes and case law from Oregon to support the argument that a
municipality's "pre-eminent" land use power is its comprehensive plan.LOB, at 25.
Turning
to the Snoqualmie decision, Lynnwood argues that the Snohomish County
CPPs violate the Board's three prong test.Lynnwood argues that population allocation
to a city goes beyond a "legitimate regional interest" and violates the land
use powers of cities by interfering with local prerogatives.
In
its reply to the Amicus Brief, Lynnwood argues that the proposition
for County authority to allocate population to cities is based on policy
arguments rather than legal arguments.Further, Lynnwood disputes the argument
that the only way to achieve consistency is by allowing "County mandated
population allocation."Lynnwood Reply
Brief to Amicus, at 2.Lynnwood argues
that:
...a specific detailed population allocation
made by the County in a CPP contravenes the processes set up by the
Legislature to achieve consistency through collaborative planning, and not
by County mandate....If the Board allows detailed population
allocations to be incorporated into CPPs, the Board should hold the ultimate
burden of proof, in the event of their use in a consistency challenge, is on
the County to justify the allocation, if the city establishes a prima
facia case supporting the city's own planning result.Lynnwood's Reply Brief to Amicus, at 8-9.
b.Snohomish County
The
County argues that Policy UG-2 and the authority of the County to allocate
population to cities is in compliance with the Act.
...UG-2 is a valid CPP and must be followed by
the cities within the county, as well as the county.It meets the legitimate regional objectives
of RCW 36.70A.100 and .110 on setting UGA boundaries and on consistency
among comprehensive plans of jurisdictions sharing regional issues.The policy is consistent with .100 and
.110, as well as with UGAs goals of reducing sprawl, allocating housing
supplies and supporting public transportation.UG-2 does not, itself, alter the land use
powers of cities, although there is no question but that RCW 36.70A.100 and
.110 do effect such an alteration.SCRB, at 32.
The County does not agree
that the GMA did not alter the land use powers of cities.It argues:
The
cities' opening briefs are based largely on a fundamental fallacy concerning
the GMA:That the Act did not alter
the land use powers of cities.The Act
includes many references to consultation, collaboration and attempted
agreement, and RCW 36.70A.210 states that nothing in that section
shall be construed to alter the land use powers of the cities.Clearly, however, the Act
categorically alters land use powers of both cities and
counties, and no amount of rhetoric concerning sovereign rights and basic
governmental powers will change that fact....SCRB, at 10-11 (emphasis in original).
The County argued that
Lynnwood's constitutional argument fails to maintain the city's land use
sovereignty because the GMA is a "general law."
Article
11, § 11 of the Washington State Constitution is the source of both city and
county police powers, including land use powers:
Any 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.(Emphasis added).
The
highlighted language declares that supremacy of general laws enacted by the
state legislature over locally adopted police power regulations....
The GMA
is a general law of the state, adopted to deal with a matter of state-wide
concern:Unplanned and uncoordinated
growth.RCW 36.70A.010. ... [T]he GMA
constitutes a limit on, or direction to, a charter county's and code city's
constitutionally based police powers, rather than a delegation of such
powers.Consequently, all city and
county land use powers, including zoning, subdivision, etc., must now be
exercised subjectto the requirements of GMA.Such powers, under whatever statute or
statutes exercised, no longer exist independently of GMA's
requirements.SCRB, at 11-12 (emphasis
in original; citations omitted).
Having argued that the GMA
alters land use powers, the County then states that CPPs do not need to
alter those powers to have substantive effect.
It is
important to note that because CPPs have a substantive effect upon city
comprehensive plans, they can provide substantive direction as to how
city land use powers will be exercised without altering the powers
themselves.SCRB, at 16 (emphasis in
original).
The County argues that
cities, by refusing to accept growth, could oblige the County to expand the
unincorporated UGA, thereby contradicting the Act's direction that sprawl is
to be reduced and urban growth directed to urban areas.
...If the city were to fail to accommodate its
share of growth within the incorporated area, the county would be forced to
create more capacity in unincorporated urban growth areas and thus extend
the urban growth area boundaries beyond areas which are urban, or urbanizing
in nature and have capital facilities and public services available.
...
...In the DCD procedural criteria on a city's
developing a proposal for its UGA, DCD states that in determining the amount
of land necessary to accommodate likely growth, the city should, among other
things, use regional population and employment forecasts, where
available.WAC
365-195-335(3)(d)(ii).Further, UGAs
should "be based on densities selected to promote the goals of the Act -
densities which accommodate urban growth served by adequate public
facilities and which discourage sprawl."WAC 365-195-335(3)(b).SCRB, at 24, 26.
The County rejects Lynnwood's
proposed method of coordinating the accommodation of population among the
County and the cities.
GMA
prohibits the planning approach which Lynnwood advocates throughout its
opening brief: 21 jurisdictions doing their own comprehensive planning in
isolation, (if not in secret), with a time for comparison at the end of the
process to check for consistency.Such
an approach is both highly inefficient and ignores the entire thrust of the
GMA and the specific requirements of .100 and .210 that CPPs ensure a
framework in advance for consistency in the development of comprehensive
plans.SCRB, at 26-27 (emphasis in
original).
c.1000 Friends
1000 Friends maintains that
the County has authority to allocate population to cities.The brief argues that certain regional
issues are specifically identified by RCW 36.70A.210(3) as requiring
coordination, and that the county is identified as the regional government
with the responsibility for that coordinating function.
The list
of subjects to be addressed in the CPPs affirms that urban growth areas,
housing and transportation (the topics on appeal in this case) are regional
issues requiring coordination:
(a)Policies to implement RCW 36.70A.110;
...
(d)Policies for county-wide transportation
facilities and strategies;
(e)Policies that consider the need for
affordable housing, such as housing for all economic segments and parameters
for its distribution; . . .
RCW 36.70A.210(3).1000 Friends Amicus Curiae Brief
(Amicus Brief), at 3.
1000 Friends further argue
that the legislature's intent to prevent sprawl is embodied in the
requirement for urban growth areas.The Final Report of the Governor's Growth
Strategies Commission (September 1990) is quoted, which provides:
Urban
Growth Areas
Containing development
within urban growth boundaries prevents sprawl, protects the environment and
uses public facilities efficiently.Coordinated planning by counties and cities
for development in these areas can reduce costs of governmental
services.Final Report:A Growth Strategy for Washington State,
Washington State Growth Strategies Commission (1990), at 11.
1000 Friends claims that the
allocation of population and employment to individual cities is essential in
order to ensure that plans are coordinated and consistent: to leave the
establishment of population targets entirely to the discretion of individual
cities would not only be inefficient, but also frustrate the Act's goals.
...Absent a coordinated population allocation,
each of the cities within the county could adopt a "no growth" comprehensive
plan, raising housing costs within the cities and leading to the
proliferation of sprawling, urban-style development outside of the urban
growth area.Such a development
pattern is clearly inconsistent with GMA.
O:P>
Alternatively, each of the
cities in the county could aggressively plan for a large share of future
population growth, resulting in uncoordinated plans that plan for much more
growth than that anticipated during the 20-year planning period.Such an outcome would lead to wasteful
investment in unneeded infrastructure improvements and the unnecessary
disruption of established neighborhoods.Amicus Brief, at 9-10.
1000 Friends rejects
Lynnwood's proposed alternative to the County having the authority to
allocate.It argues:
As an
alternative to the County taking on additional urban growth, the City of
Lynnwood suggests a process of coordination by appeal.GMA clearly does not anticipate that
coordination could be achieved by cities and counties acting with unfettered
independence through the planning process, resolving the inevitable (and
perhaps unintended) conflicts through appeals to the Hearings Boards.This would be an extraordinarily unwieldy
process that is antithetical to the goals of coordinated planning,
predictable permit processing, efficient service delivery, and the
prevention of urban sprawl.Amicus Brief, at 11-12.
Finally, 1000 Friends argues
that the allocation of population to individual cities is a regional policy
matter rather than a local land use regulatory matter.
It is the
allocation of the population projection (more than the projection
itself) that is an important regional policy choice, because it establishes
each city's share of future growth.Amicus Brief, at 14 (emphasis in
original).
Discussion
RCW 36.70A.210(3) provides:
A
county-wide planning policy shall at a minimum, address the following:(a)Policies to implement RCW 36.70A.110;..
RCW 36.70A.110 provides:
(1)Each county that is required or
chooses to plan under RCW 36.70A.040 shall designate an urban growth
area or areas within which urban growth shall be encouraged and outside of
which growth can occur only if it is not urban in nature.Each city that is located in such a county
shall be included within an urban growth area.An urban growth area may include more
than a single city>...
(2)Based upon the population growth management
planning population projection made for the county by the office of
financial management, the urban growth areas in the county shall include
areas and densities sufficient to permit the urban growth that is
projected to occur in the county for the succeeding twenty year period.Each urban growth area shall permit urban
densities and shall include greenbelt and open space areas...(Emphasis added).
The emphasized text in
subsection (1) authorizes Snohomish County to "designate" urban growth areas
and to include one or more cities within a designated urban growth
area.The language of subsection (2)
requires that sufficient "areas and densities" will be included in such
urban growth area designations to accommodate twenty years of growth as
projected by OFM.See also RCW
43.62.035.Because the prefatory
language of RCW 36.70A.110(1) identifies the county as the actor in
designating urban growth areas, the Board holds that the language in
subsection (2) requiring sufficient "areas and densities" is a mandate
directed to the county.
OFM has made the twenty year
growth projection for Snohomish County.See Findings of Fact #3 and
#17.The question before the Board for
resolution is:what does the Act
require be done with that projection?The County argues that it has the
responsibility and the authority to make sub-county population allocations
to individual urban growth areas.The
County further argues that, because an urban growth area may include "...a
single city..." a sub-county population allocation may be made to an
individual city.Lynnwood argues that
the OFM projection is to be used by cities as well as the county in
establishing the population for which an individual city is to plan.
The Procedural Criteria
adopted by the Department of Community Development address meeting the
requirements for Urban Growth Areas.See WAC 365-195-335.Both Lynnwood and the County cite to the
Procedural Criteria to support their arguments.
The
emphasized portions of UG-2 are the focal points for Lynnwood's contention
that the CPPs provide the County's authority to allocate population and
employment to cities.Appendix B,
which is referenced in a portion of the emphasized text above, lists
population forecasts for the year 2012 for each of the cities in Snohomish
County and contains footnote 1 which reads: "City forecasts are shown for
current city boundaries.IUGA
forecasts are based on preliminary IUGA boundaries as of July 15/92 (see
attached map)."R-348, at 3379.
The
emphasized clause of UG-2(h) indicates that the County will "incorporate"
into the CPPs final population and employment figures prior to approval of
comprehensive plans.This phrase
contains two important ideas.First,
it indicates that a final version of Appendix B, including specific
allocations to individual cities, will be prepared between the February 4,
1993 adoption date of the CPPs and such future time as the comprehensive
plans are adopted.Taken with other
statements in the CPPs about process and the characterization in UG-2 of
Appendix B as a "starting point," this conveys that the final forecasts will
result from an inter-active process of collaboration between the cities and
the County.Second, the latter portion
of the emphasized phrase suggests that these forecasts will be a
prerequisite of "approval of the comprehensive plans."The use of the word “approval” is
unclear.The Board construes this word
to mean “adoption” by the respective local legislative bodies.
In
reviewing this issue, the Board believes that each party makes several valid
points. However, we do not agree that either has put forward the complete
and correct answer to Issue No. 4a.This is a difficult question due to the
inherent tension between regional and local interests and the Act's clear
direction that both interests are to be served by CPPs as well as by
comprehensive plans.The Board has to
look at the Act as a whole to interpret the law in a way that reconciles the
apparent conflicts and gives meaning to every clear legislative direction.
In order to resolve Issue No.
4a, the Board finds it necessary to clarify and expand upon the purpose,
nature and effect of CPPs, as first set forth in its Snoqualmie
decision and affirmed in the Kitsap> decision (Poulsbo, Port
Orchard and Bremerton v. Kitsap County, CPSGPHB Case No. 92-3-0009
(1993)).After this exposition, the
answer to Issue 4a becomes apparent.
In the
Snoqualmie decision, the Board said that CPPs have two primary
purposes:first, to achieve
consistency between plans as required by RCW 36.70A.100; second, to achieve
a transformation of local governance within the UGA.Snoqualmie, at 9.In the case before us, the Board holds that
another long term purpose of the CPPs is to direct urban development to
urban areas and to reduce sprawl.The Board reaches this
determination because the GMA is intended to address the threat of
"uncoordinated and unplanned growth" by requiring that
comprehensive plans meet "common goals".Because CPPs are to provide a framework for
the preparation of comprehensive plans, they provide the county-wide vehicle
for addressing planning goals, particularly those that are county-wide in
scope.
In Snoqualmie, the
Board held that the nature of CPPs and comprehensive plans is that
they are policy documents, as contrasted with development regulations.[7]
Snoqualmie, at 12.The Board also held that development
regulations are a sub-set of "land use powers" as that phrase is used in RCW
36.70A.210(1).Snoqualmie, at
16.In this case, the Board further
holds that GMA policy documents, such as CPPs developed pursuant to RCW
36.70A.210 and comprehensive plans developed pursuant to RCW 36.70A.040, are
not "land use powers."As the Board held in
Snoqualmie, CPPs provide substantive direction to city and county
comprehensive plans.The comprehensive
plan of a city or county, in turn, will provide substantive direction to the
performance of that jurisdiction's "activities" pursuant to RCW
36.70A.120.
The Board has previously
observed that planning generally is an "interactive and iterative
deliberation process."See
Twin Falls, et al. v. Snohomish County, CPSGPHB Case No. 93-30003,
78, footnote 27 (1993).The Board
holds that the nature of growth management planning under GMA is similarly
interactive and iterative in nature, with specific steps along the
way specifically noted for future review and adjustments.
In Snoqualmie the
Board held that the effect of CPPs is both procedural and substantive
with regard to comprehensive plans.A
three prong test was established to assure that the CPPs would serve
legitimate regional interests, not violate the land use powers of cities,
and otherwise be in compliance with the Act.See Snoqualmie, at 18-19.
Lynnwood
argues that the "land use powers of cities" includes policy documents (such
as a city's comprehensive plan) as well as implementing measures (such as a
city's development regulations).Lynnwood therefore sees a directive CPP as
an intrusion on the city's land use powers, whether that CPP speaks to the
comprehensive plan or to the development regulations.
The
County appears to agree with Lynnwood that a city's comprehensive plan is a
part of the "land use powers of cities."However, the County contends that this
power is altered by the GMA, specifically the requirement for consistency in
RCW 36.70A.100 and the authority given to counties to adopt the urban growth
areas for cities pursuant to RCW 36.70A.110.Therefore, rather than saying that
Lynnwood's comprehensive plan is not a part of the city's land use powers,
the County is instead saying that “it is” and the Act requires those land
use powers to be altered.In view of
the fact that certain of the CPPs (e.g., UG-7, OD-2, HO-18), explicitly
mention regulations, the County's position seems to suggest that the Act's
license for CPPs to alter city land use powers extends not just to the
policy documents but also the implementing measures.
These
conflicting and somewhat extreme positions are engendered by each party's
legitimate concerns as well as each party's worst case assumptions about the
intentions and actions of the other.The County fears that if the City's
traditional sovereignty remains intact, the Act's requirements for
coordination and consistency will be thwarted and sprawl will continue
unabated.The City fears that if local
sovereignty is undermined, an uninformed and unaccountable County will usurp
local control and make it impossible for the City to meet its other
obligations under the Act.
To
conclude that comprehensive plans continue to be an inviolable part of the
land use powers of cities would perpetuate the historic pattern of
decision-making and development in the Central Puget Sound region.This region is home to the state's greatest
concentrations of both people and local governments, with seventy three
cities and four counties encompassing over 56% of the state's population in
less than 10% of the state's land mass.To conclude that each of those
local governments retains the full range of its pre-GMA land use
prerogatives would perpetuate balkanized self-interest and thwart the
Legislature's clear direction to take decisive regional action to limit
sprawl, site needed facilities, meet pressing human needs, protect the
environment and sustain economic development.See RCW 36.70A.010 and RCW
36.70A.020.
The
broadened perspective that permeates the Act means that local governments,
particularly cities, must include a regional perspective in the making of
their plans, indeed, in the definition of their responsibilities to plan for
the future.The "land use powers of
cities" cannot be construed in such a way as to allow a city to deny its
regional context or shirk its regional responsibilities.
The
County's allocation of population and employment to cities is an exercise
with a regional context and rationale.It is a legislative policy exercise that is
required in order to achieve the consistency and coordination of
comprehensive plans as mandated by RCW 36.70A.100 and to give force and
effect to the urban growth area designations as required by RCW
36.70A.110.The Board notes that the
County could have effectuated the requirement of RCW 36.70A.110 to allocate
population through a separate enactment, thus avoiding the issue of section
.210's proscription concerning the land use powers of cities.Instead, up to this point the County has
chosen to do so through its CPPs.
class="MsoNormal"
style="text-align:justify;tab-stops:27.0pt 45.0pt 63.0pt 81.0pt 99.0pt
117.0pt">Nonetheless, the allocation does not needlessly or excessively
intrude upon local prerogatives, nor does the allocation alter the land use
powers of cities. The Board concludes that such “land-use powers”, as that
phrase is used in RCW 36.70A.210(1) and was discussed by the Board in its
Snoqualmie and Kitsap decisions, do NOT include comprehensive
plans; adopting comprehensive plans is not an exercise of the land use
powers of cities under Chapter 36.70A RCW.Furthermore, even if adopting comprehensive
plans were, in fact, a part of the land use powers under the GMA, the Board
agrees with that portion of the County’s argument that the alteration of
such powers occurs as a result of the requirements of RCW 36.70A.100 and RCW
36.70A.110, and not because of RCW 36.70A.210.
The
Board therefore holds that the County may allocate population and employment
to cities.CPPs that include this
allocation are not in violation of the land use powers of cities.A major rationale for this holding is the
GMA's clear direction regarding the legislatively preferred roles of
counties and cities.With responsibility for regional
coordination of comprehensive plans in conformance with the planning goals,
a county must be capable of directing urban growth to areas that
are already urban in character, including
cities.Because urban growth consists
of people and jobs, the county is therefore charged with authority to
undertake a task that is essentially an allocation of population and
employment.
Even
while the Board holds that the allocation of population and employment is a
legitimate activity for the regional government, we also affirm the three
prong test articulated in Snoqualmie.
Notwithstanding
the consistency requirement of RCW 36.70A.100, great deference must still be
given to local prerogatives and choices under GMA.Policies within CPPs that needlessly or
excessively intrude upon local prerogatives can have no substantive
effect.Snoqualmie, at 18.
Each
city retains the local prerogative of determining just how the regional
policy allocation of population and employment is going to be accommodated
and configured through local development regulations and other exercises of
the land use powers of cities.
The
cities are reminded that the Act is premised on the efficient delivery of
services to relatively compact urban growth areas.This suggests that the configuration of new
development and redevelopment will result in greater densities of employment
and population than has typically occurred.The record indicates that the local
governments in Snohomish County understand this, for example, by virtue of
the adoption of Vision 2020 as the regional development strategy.At the same time, the County is reminded
that CPPs may not "short cut" past the comprehensive plans of the cities by
attempting to dictate specific regulatory features, such as building forms,
localized densities or design characteristics.SeeSnoqualmie, at 30.Moreover, the County is advised in setting
the population forecasts to take great care not to place the cities in a
position of being unable to comply with other provisions of the Act.
Turning to Lynnwood's
specific legal arguments, the Board rejects their references to Washington
pre-GMA and Oregon examples.The
former is an outdated frame of reference and the latter is simply
irrelevant.If the County's action
were being processed under Chapter 36.70 RCW, Lynnwood would have some
winning arguments.However, the GMA,
as primarily codified in Chapter 36.70A RCW, makes Lynnwood's rationale
obsolete.
When Lynnwood argues that
"[t]here is nothing in GMA giving a higher priority to a county's
comprehensive plan than [to] a city's" (LOB, at 31), it makes a true
statement that entirely misses the point:there is a policy document with a
higher priority, on certain issues, than any comprehensive plan - namely,
the county-wide planning policies.In
a related vein, Lynnwood argued that "[t]he legislature did not designate
the county under GMA a countywide planning super-agency, with authority to
establish and determine a countywide comprehensive plan for each
jurisdiction, with authority over land use, capital facilities, capital
facilities budgets, etc."LOB, at
30.Again, the Act identifies counties
as "regional governments within their boundaries."This clear legislative declaration, when
viewed together with the explicit authority given to counties for
designation of the urban growth areas and the adoption of the CPPs, leads to
the conclusion that population allocation is a regional legislative policy
exercise that, for the sake of consistency and reducing sprawl, must be made
at the regional level by the Act's designated regional government -- the
county.
Lynnwood cited to the
Procedural Criteria and the Interlocal Agreement as evidence that the County
may not allocate population to the cities.The Board held in Tracy v. Mercer
Island, CPSGPHB Case No. 92-3-0001 (1993), p. 22, and again in Twin
Falls, et al., v. Snohomish County, CPSGPHB Case No. 93-3-0003 (1993),
that the Minimum Guidelines promulgated by the Department of Community
Development are advisory, not binding.Procedural Criteria are similarly advisory
because the language of RCW 36.70A.320 merely requires the Board to
"consider" them.See also WAC
365-195-030.Moreover, as the Board
held in Poulsbo, et al., v Kitsap County, CPSGPHB Case No.
92-3-0009 (1993), p. 45, a county's authority to adopt CPPs does not depend
upon an interlocal agreement.The
Board likewise holds that a county's authority to designate urban growth
boundaries does not depend upon an interlocal agreement.
Lynnwood argued that
"[c]onsistency results from the statutory processes, and if necessary, by
review by the Board. Consistency and planning result is not established
under GMA by a pre-determined county mandate."LOB, at 35.Adoption of either CPPs or urban growth
areas or any amendments to either are subject to the filing of a petition
for review to the Board, and it is logical to assume that at least some of
the inconsistencies among the plans of cities and a county would result in
such appeals.However, to wait as
Lynnwood suggests until the cities have substantially completed their
comprehensive plans and then attempt to reconcile county-wide discrepancies
through, in effect, multi-lateral cross appeals, does not comply with the
Act's mandate that coordinated and consistent plans be adopted.The Board reaches this conclusion not only
because of the tremendous investment of time and effort that each
comprehensive plan requires and because the Act's deadlines demand that
these planning efforts proceed with dispatch, but also because, as 1000
Friends correctly opined, Lynnwood’s suggested process:
... is
antithetical to the goals of coordinated planning, predictable permit
processing, efficient service delivery, and the prevention of urban
sprawl.Amicus Brief, at 12.
The Board does not conclude,
however, that the County's authority to allocate population and employment
to cities constitutes a "pre-determined county mandate" as Lynnwood stated,
nor should the County assume that such allocations can be unilaterally
determined and, once formulated, remain static.The Board holds that the nature of planning
under the GMA is interactive and iterative.It is expected that the process will entail
many drafts of potential population allocations to various cities and
unincorporated portions of urban growth areas, with attendant analysis,
adjustments and iterations.
The County has an obligation
to collaborate with cities in the preparation, refinement and adjustment of
the many inter-related components of county-wide growth management:the comprehensive plans of the county and
the cities, the CPPs and the urban growth areas.The same is true of population and
employment allocations.Each has a
duty to work with the other, but the County ultimately has the
responsibility to act as the regional government to adopt final CPPs, final
urban growth areas and final population and employment allocations to urban
growth areas, including cities.As the
County performs these duties, particularly the allocation of population and
employment, it must be responsive to the concerns and needs of the cities,
and mindful of the obligations that the cities have as primary providers of
urban services under the Act.
Cities
and the County are operating under an entirely new statutory scheme under
Chapter 36.70A RCW.The newly
clarified roles for cities and counties, and the careful balancing of
obligations and prerogatives, will require ongoing dialogue, flexibility and
adjustments by all parties.The Board
agrees with the argument of 1000 Friends that allocating growth (and its
constituent parts, population and employment) is a regional policy exercise
rather than a local regulatory exercise.
Conclusion No. 4a NTER>
The
Board concludes that the County does have the authority to allocate
population and employment to the cities rather than just to urban growth
areas.Counties are required to take
OFM's county-wide population forecasts and to allocate them among both the
incorporated and unincorporated portions of urban growth areas and the
non-urban growth areas within the county. This allocation is implicitly
authorized by RCW 36.70A.100 and RCW 36.70A.110 and may be formatted and
adopted through the countywide planning policies process of RCW
36.70A.210.This authority does not
alter the land use powers of cities because, under Chapter 36.70A RCW, such
land use powers refer not to policy documents but rather to development
regulations, capital budget decisions and similar implementing actions and
activities.
Legal Issues No. 4b and 4c
Legal
Issues 4b and 4c were dismissed pursuant to the Board’s July 27, 1993 Order
Granting Motion for Stipulated Order.
Legal Issue No. 5
Does
Policy UG-10 mandate adoption of land use incentives?If so, does that mandate alter the land use
powers of cities?[L]
[E]
UG-10
provides:
an>As a means of encouraging efficient use of
non-residential land areas, local jurisdictions should provide various
incentives for multi-story commercial and mixed use development.R-348, at 3355.
Positions of the Parties
a.City of Edmonds
Edmonds
alleges that UG-10 must be struck down by the Board because it alters the
city’s land use powers since it provides a direct connection to implementing
development regulations.The Board’s
Snoqualmie decision is repeatedly referenced.The City equates the verbs “should provide”
as meaning “should adopt” and points out that the latter phrase has a “high
component of ‘directiveness.’”Edmonds’ Prehearing Brief (EPB), at
9.Edmonds also points out that the
Snohomish County CPPs make frequent use of the verb “encourage”; yet UG-10
uses “provide” which “... is obviously intended to give a much stronger
direction.”EPB, at 9.
Edmonds’
complaint with this CPP also is that it “requires a local jurisdiction to
provide incentives to multi-story commercial development” even though
incentives are but one “of a variety of possible land use techniques that
could be used to encourage the development of mixed use commercial
development.”EPB, at 9.As an example, Edmonds refers to its zoning
code that imposes a 25-foot height limitation on all
The County takes the position
that UG-10 can be validly interpreted so that it does not alter the land use
power of cities.It maintains that
this specific policy is directed toward comprehensive plans and not their
implementing development regulations:
The
policy does require that comprehensive plans provide various incentives but
it is left entirely to the individual jurisdictions to determine what type
of incentives to use in their comprehensive plans.SCRB, at 39.
Although UG-10 generally
directs that incentives be included in comprehensive plans, the County
contends that this policy satisfies the Board’s three-prong
Snoqualmie test for an individual CPP: it meets a legitimate regional
objective of encouraging efficient use of non-residential land areas; it
addresses only comprehensive plans; and it is consistent with the GMA.
Finally, the County rejects
Edmonds’ argument that UG-10 is contrary to that city’s traditional building
height limitation.The County argued
that the term “multi-story” is not defined, yet is broad enough to include
the development techniques Edmonds uses.SCRB, at 40. In oral argument, the County
expanded this contention by pointing out that “multi-story” could even
include structures with portions below ground level.
Discussion
This Board has previously
held that CPPs are policy documents that must “give substantive direction to
local government implementing actions.Cities and counties, therefore, must take
great care to say precisely what they mean in policy documents, because the
consistency requirement of the GMA requires that they do what they
say.”Snoqualmie, at 15.The Board also pointed out that:
... CPPs
provide substantive direction not to development regulations, but rather to
the comprehensive plans of cities and counties.Thus, the consistency required by RCW
36.70A.100 and RCW 36.70A.210 is an external consistency between
comprehensive plans.The CPPs do NOT
speak directly to the implementing land use regulations of cities and
counties.
...
... CPPs
are part of a hierarchy of substantive and directive policy.Direction flows first from the CPPs to the
comprehensive plans of cities and counties, which in turn provide
substantive direction to the content of local land use regulations, which
govern the exercise of local land use powers, including zoning, permitting
and enforcement.Snoqualmie, at
16-17 (emphasis in original).
Therefore, the Board agrees
with Lynnwood that the use of the verbs “should provide” in UG-10 does
indicate a rather high degree of directiveness.As the Board indicated in its
Snoqualmie decision:
Moreover,
the Board must determine the weight and meaning that are attached to the
words 'shall' and 'should' in the CPPs.Is 'shall' directive?Is 'should' simply advisory?Under the GMA, the very nature of policy
documents has changed.Policy
statements, in both the CPPs and comprehensive plans, are now substantive
and directive.The Board therefore
holds that the use of either auxiliary verb in a GMA policy document must be
construed to have specific directive meaning.
While
counties are free to use either, both, or neither of these verbs in the CPPs
(just as cities and counties are free to use either, both or neither in
comprehensive plans), the difference in meaning between 'shall' and 'should'
is now one of degree rather than kind....While even the 'shoulds' now have directive
and substantive meaning, the 'shalls' impart a higher order of substantive
direction.If the county means to
provide advice rather than substantive direction with a CPP, then it is
obliged to explicitly qualify such use of the word 'should' or to clarify
the intent of the words selected in a preamble or footnote.Snoqualmie, at 14 (Footnote
omitted).
Subsequently, the Board
expanded on this discussion in its Kitsap decision:
The Board
further held in Snoqualmie that the use of the word 'should' does not
reduce a CPP to the status of a purely advisory statement.Even 'shoulds' when included in GMA policy
documents provide a measure of substantive direction.Thus, the legislative bodies and others
reading the CPPs must give weight to any policy statement, regardless of
whether it uses the modifying verb 'should' or 'shall'. For this reason, the
Board rejects Kitsap's argument that the CPPs are purely "discretionary and
not mandatory."If a policy is
included in the CPPs, substantial weight and regard must be given to it by
all parties, including individual citizens, city and county governments and
state agencies. Kitsap, at 27. (Footnote omitted).
In footnote 17 of its
Kitsap decision, the Board stated:
The Board
also cautions that the action verbs that follow 'should' or 'shall' in a
statement must be carefully chosen because they can provide much more
precise and clear direction as to what implementing action or compliance is
expected and required.Kitsap,
at 27.
Finally, in its most recent
discussion of the issue, the Board held:
... as
the Board concluded in Snoqualmie v. King County, policy documents
under the GMA have substantive effect.Therefore, any policy statement must be
presumed to have some directive effect.We further stated that "should" can impart
a lower order of direction than "shall", but that in using that term the
adopting legislative body had an obligation to explicitly state such nuance
of meaning or intent.Kitsap is free
to use both "shall" and "should" and to use the latter to provide advisory
guidelines, if it so indicates its intention.Another way to differentiate between policy
statements that are intended to be permissive or advisory, as opposed to
directive, would be to use the word "may", and to clearly indicate that a
policy using this auxiliary verb is purely discretionary.Kitsap, Order Granting Kitsap
County’s Petition for Reconsideration and Modifying Final Decision and
Order, at 7-8.
Having concluded that the
phrase “should provide” is directive, the next question becomes what does
UG-10 mandate?The cities focus their
argument on the fact that UG-10 requires that they adopt land use
incentives for multi-story commercial and mixed use development.The Board agrees with this assessment.UG-10 does require that land use incentives
be adopted.The purpose of these
incentives are “as a means of encouraging efficient use of
non-residential land areas.”(Emphasis
added).The Board notes that UG-10
itself suggests that incentives are not the only means; however,
incentives are the only means specified in UG-10.Nonetheless, the Board agrees with the
County that, because the term “incentives” is undefined, cities have a wide
degree of latitude in determining how they will “encourage efficient use of
non-residential land areas.”
The next and more important
question is whether this mandate alters the land use powers of cities.The cities claim that requiring land use
incentives does constitute such an alteration because it forces them to
adopt specific implementing development regulations.In contrast, the County claims that UG-10
is aimed only at comprehensive plans and therefore does not alter land use
powers of cities. The County admits that UG-10 “does require that
comprehensive plans provide various incentives” but contends that because it
is left to the individual cities as to what those incentives will be, UG-10
is valid.
At its most basic level, this
issue boils down to whether the County’s CPPs can require a city to provide
incentives for multi-story commercial and mixed use development, whether or
not the city wants “multi-story” structures.The County did not define what constitutes
a multi-story structure.The word
“multi” means:
1.
having, consisting of, or affecting many;2. more than two (or sometimes one);3. many times more than.Webster’s New World Dictionary of the
American Language, 935 (1984).
Thus, “multi” has more than
one meaning.The Board concludes that
the more common meaning of the term is “more than two.”Thus “multi-story” structures consist of
more than two floors.Yet,
significantly, as the definition of “multi” itself reveals, on occasion,
“multi” could mean “more than one”.If
UG-10 is such an occasion, “multi-story” would mean a structure with more
than one floor.Even though Edmonds’
existing zoning code permits development over twenty-five feet in height in
certain instances, presumably Edmonds nonetheless permits structures with
more than one floor even where the twenty-five foot restriction
applies.Accordingly, if “multi-story”
means more than one floor, UG-10 would not alter Edmonds’ existing
zoning.The Board has previously held
that:
The CPPs
may be very general or very detailed.Some CPPs may be written as goal or value
statements.Others may be written as
measurable objectives or targets.The more abstract CPPs are, the more
room will be left for interpretation.This may be a desired and appropriate
choice; however, it comes with the consequence that inconsistency will be
more difficult to prove.On the other
hand, CPPs that include numeric standards or otherwise objective benchmarks,
such as jobs or housing targets, are more measurable and achievable and
thus more readily a cause of action for alleged non-compliance.
Likewise,
CPPs that are written in a clear and cogent fashion, with key terms and
phrases defined, will be less open to varying interpretations.Finally, all CPPs should be internally
consistent to avoid sending conflicting messages.The more internally inconsistent the CPPs
are, the less consistent comprehensive plans will have to be.Snoqualmie, at 13 (emphasis added).
In light of the County’s
clear statement of intent not to alter the land use powers of cities and the
fact that it failed to define the term “multi-story”, coupled with the
admission by Edmonds that it traditionally has exercised its zoning and land
use powers by “going down rather than up”, the Board holds that UG-10,
although not the model of clarity it might be, is in compliance with the
GMA.
Conclusion No. 5
UG-10 does direct cities to
adopt various incentives to encourage efficient use of non-residential land
areas.However, cities are free to
determine for themselves what the word “incentives” means and how they will
employ incentives to achieve this goal.In addition, cities are not limited to
using only incentives to achieve this goal since incentives are merely
one means of encouraging efficient use.
The Board concludes that
UG-10 is in compliance with the GMA; it does not alter the land use powers
of cities.However, because certain
key terms in the policy are undefined, more room will be left to an
individual city’s interpretation of UG-10.In the event that the County subsequently
challenges a city for failing to comply with UG-10, the lack of clarity in
the wording of UG-10 will benefit the challenged city.
Legal Issue No. 6
Does
the Fair Share process established under Policies HO-4, HO-5, HO-7, HO-8,
HO-9, HO-11, HO-17, HO-18, HO-21 and OD-8 alter the land use powers of
cities?[L]
[E]
HO-4
HO-4Adopt and implement a fair share
distribution of low-income and special needs housing so as to prevent
further concentration of such housing into only a few areas.The county and cities will collaborate
in formulating a methodology to assess existing and projected housing needs
of the county's population and a fair share housing allocation
methodology.R-348, at 3362 (emphasis
added).
Positions of the Parties
a.City of Edmonds
Edmonds
acknowledges that the initial portion of the first sentence in HO-4 is
“clear and unambiguous.”EPB, at
11.However, its concern is with the
second half of the sentence and the fact that the word “areas” is
undefined.The City does not know
whether the term is referring to urban growth areas under the GMA,
individual communities within urban growth areas, or specific neighborhoods
or zoning districts of a city.If
“area” means either larger urban growth areas or specific communities within
the region, HO-4 addresses an appropriate regional issue.However, if “area” has a smaller scale
meaning, so that it applies to zoning districts or neighborhoods within a
city, then HO-4 alters the land use powers of the City by directing the use
of a specific development regulation. EPB, at 14.
Edmonds
is concerned that HO-4:
could
be applied to prohibit concentrations of “special needs housing” in
multi-family zones within the City of Edmonds thereby requiring it to amend
its comprehensive plan and zoning requirements to require inclusion of group
homes as permitted uses in single-family neighborhoods.
...
...
The City’s concern remains that special needs populations be placed in
zoning districts of the City which are most compatible with the specific
use, particularly in terms of density and the ability of the facility to be
serviced by appropriate infrastructure.EPB, at 13.
b.Snohomish County
The
County responded to Edmonds’ concerns by indicating that:
Policy
HO-4’s use of the term “areas” was not intended to be given such a narrow
interpretation as to refer to neighborhoods or zoning districts within
jurisdictions.Rather, the term
“areas” was intended to refer to the much larger category of
“jurisdictions.”The county’s intent
was that there be a fair share distribution of low income and special needs
housing among jurisdictions.>How each
jurisdiction deals with its responsibility to provide its fair share is not
mandated by Policy HO-4.SCRB, at
41.
c.1000 Friends
1000 Friends did not address
HO-4 or any of the challenged policies individually in its amicus
brief.However, “1000 Friends’ primary
concern is that the County, through the CPPs, has the authority to adopt and
implement a fair share distribution of low-income and special needs
housing.”Amicus Brief, at
15.Furthermore, 1000 Friends argued:
The need
for consistency and coordination among the comprehensive plans of cities and
counties again support CPPs that establish a specific fair share housing
allocation for each city.Such a fair
share housing distribution does not alter the land use authority of the
cities, because the distribution simply implements a requirement of the
housing element and because the cities can choose from a variety of
techniques to meet the fair share requirements....Amicus Brief, at 16.
Discussion
There is no question that
HO-4 deals with a legitimate regional issue nor does Edmonds claim
otherwise.Neither does the City allege that
HO-4 is inconsistent with these and other provisions of the Act.Instead, its concern regards the meaning of
the word “areas” which is undefined in the CPPs. This is a legitimate concern that leads to
varying reasonable interpretations of the word.Although the County argues that “areas” was
not intended to be narrowly interpreted but rather to refer to a much larger
territory, nothing on the face of HO-4 itself reveals that intent.The question thus becomes whether HO-4
alters the land use powers of cities because this undefined term could refer
to an intra-city area (i.e., a neighborhood or zoning district)
rather than a regional area.
As the Board indicated in its
discussion of UG-10, when counties adopt CPPs but leave key terms undefined,
they do so at their own risk.The
chance a county takes is that a city, in attempting to interpret a specific
policy in the CPPs, guesses incorrectly as to what the county meant.Here, the County has not defined the word
“areas” but argues that it means a broader geographic territory than a
neighborhood within a city.Edmonds
acknowledges that if “area” means either urban growth areas or specific
communities within a region, then it has no problem with HO-4.
The Board holds that, despite
the fact that the actual geographic limits of the word “areas” is unknown,
HO-4 complies with the GMA and does not alter the land use powers of
cities.Again, the Board bases its
decision on the County Council’s statement of intent not to alter such
power, and the other language in the policy itself.However, as the Board held regarding UG-10,
the fact that "areas" is undefined will benefit cities should their
comprehensive plans ever be challenged as not being consistent with this
policy in the CPPs.
HO-5
HO-5Each jurisdiction's comprehensive plan
housing element will specify which strategies are available to attain the
jurisdiction's fair share housing objectives.The jurisdictions will consider as
appropriate the strategies for achieving affordable housing presented in
"The Report of the Partnership for Tomorrow's Low Cost Housing Opportunities
Subcommittee" (May 1992) and the Residential Development Handbook for
Snohomish County Communities (March 1992).R-348, at 3362 (emphasis added).
Positions of the Parties
a.City of Edmonds
Edmonds
took no formal position regarding HO-5 other than indicating that if the
Board “struck down” HO-4, its concerns with HO-5 would be addressed.EPB, at 17.
b.City of Lynnwood
Lynnwood
objected to HO-5 because of the use of the phrase “will consider as
appropriate” in the second sentence.In essence, the City was uncertain what the
phrase means:
Does
the phrase ... mean that the particular strategies in the referenced
documents ... are “deemed” to be appropriate, and if so, must those
strategies, and only those strategies be specified in a city comprehensive
plan.Must all the strategies referred
to in the referenced documents be specified, or may specifying only some of
the strategies be consistent with HO-5.Does HO-5 limit use by a city of other
strategies.What if Lynnwood prefers
none of the strategies referenced in the documents, but plans to achieve
affordable housing goals by other methods, including, direct
participation.LOB, at 55-56.
Because
the second sentence of HO-5 contained “unnecessary detail and could be
interpreted to require specified strategies ..."Lynnwood asks the Board to exclude the
second sentence entirely or to order that the questioned phrase be modified
to read “... may consider, among other options...”LOB, at 56.
c.Snohomish County
The
County contends that the questioned language:
...
does mean that the referenced strategies are deemed to be appropriate.However, there is nothing in this policy to
suggest that these strategies compose an exclusive list of those from which
cities may choose or that each city must use all of the referenced
strategies.The operative portion of
Policy HO-5 is the first sentence...Each jurisdiction will make its own
decision as to which strategies to specify.SCRB, at 42.
Discussion
The Board appreciates the
concerns raised by Lynnwood.As
written and interpreted literally, one could read HO-5 to mean that only the
documents specifically listed are appropriate.As such, by requiring cities to consider
only those two documents, the County would infringe upon a city's land use
powers.However, the County's
interpretation of HO-5 is also reasonable.Given the statement of intent in the
Introduction to the CPPs not to alter the land use powers of cities, the
Board concludes that the County's interpretation is controlling.This conclusion is bolstered by the fact
that, had two commas been inserted in the sentence, there would be no
question that the County's interpretation was correct.HO-5 would have read as follows:
... The
jurisdiction will consider, as appropriate, the strategies for
achieving affordable housing presented in ...(Commas added).
Accordingly, the documents
specified in HO-5 must be considered by local jurisdictions before adopting
comprehensive plans.However, jurisdictions are not
required to adopt any specific strategies recommended in those documents nor
are jurisdictions limited to considering only the two documents listed in
HO-5.
HO-7
HO-7Ensure that adequate affordable housing is
available in designated urban growth areas by adopting land use and density
incentives and in rural areas by means of cluster housing that minimizes
infrastructure costs.R-348, at 3363.
Positions of the Parties
a.City of Edmonds
Edmonds
challenges this policy because of the use of the verb “ensure” which it
claims is a directory verb requiring local jurisdictions to adopt “land use
and density incentives.”The City
alleges that this mandate forces it to adopt a specific land use technique,
in this case density incentives, which alters its land use powers.EPB, at 14-15.
b.City of Lynnwood
Lynnwood’s
objection to HO-7 mirrors Edmonds’.Lynnwood claims that by requiring the
cities to achieve adequate affordable housing availability by a specified
technique (i.e., density incentives), the County is altering the land use
powers of cities.The City points out
that if this policy simply means that it is acceptable if a local
jurisdiction “allows for” affordable housing by any number of techniques,
including density incentives, then it would have no objection.As an example, the City cites to the
possibility of ensuring such housing by “direct municipal financial
contribution.”However, Lynnwood
argues that if the policy means a city must affirmatively “ensure”
available, affordable housing, the land use powers of cities are
altered.LOB, at 56-57.
BR>
c.Snohomish County
Snohomish
County claims that the phrase in HO-7, “adopting land use and density
incentives,” is not a mandate for a specific implementing regulation but “a
broadly worded requirement that cities include some measures in their
comprehensive plans to provide incentives for the development of affordable
housing within their jurisdictions.”SCRB, at 45.The County maintains that HO-7, to the
extent that it requires jurisdictions to achieve adequate affordable housing
availability, does no more than restate the requirements of RCW
36.70A.020(4), the GMA’s housing goal.The County rejects Lynnwood’s argument that
the policy may mean that cities merely have to allow for affordable
housing.N style="mso-spacerun: yes">
It alleges that the use of the
verb “encourage” in subsection (4) of the Act’s goals provisions means that
cities must not just passively “allow for” affordable housing but instead,
they must be proactive.In addition,
the County argues that RCW 36.70A.210(3)(e) requires a policy such as HO-7.
The
County claims that any suggestion that direct financial contributions by
cities are precluded by HO-7 is unfounded.
The
cities are free to chose any type of such incentives they wish - no
particular one is required.If
Lynnwood chooses to make direct financial contributions, that is its
prerogative.SCRB, at 44.
The
County also claims that leaving the ultimate choice up to the cities is
consistent with DCD’s regulations at WAC 365-195-060(6).
Discussion
The
Board agrees with the County that RCW 36.70A.210(3)(e) requires that CPPs
address "[P]olicies that consider the need for affordable housing..."In addition, the County is correct that
HO-7 somewhat tracks the language of RCW 36.70A.020(4) which states:
Housing.Encourage the availability of affordable
housing to all economic segments of the population of this state, promote a
variety of residential densities and housing types, and encourage
preservation of existing housing stock.
Significantly however, while
RCW 36.70A.210(3)(e) uses the verb "consider" and RCW 36.70A.020(4) uses the
verb "encourage", the County has elected to use the word "ensure."The Board agrees with the cities that the
use of the verb "ensure" in HO-7 is far more directive than those used in
the Act.This is especially so when
HO-7 also requires cities to adopt certain mechanisms.Thus, the Board understands why the cities
have raised concerns about HO-7.Their
interpretation of that policy is not unreasonable.The use of the term “ensure”, while
laudable, is not consistent with other provisions in the GMA because it
exceeds those requirements.
In addition to the choice of
verbs used in HO-7, nothing in the GMA provisions cited above specifically
requires cities to adopt "land use and density incentives and in rural areas
by means of cluster housing."Therefore, HO-7 is a clear violation of the
land use powers of cities.Even though
incentives and cluster housing techniques might be selected by cities as the
means for encouraging affordable housing, cities must be free to achieve the
affordable housing goals in whatever manner they choose.However, their duty to affirmatively
address this planning goal is not lessened by the fact that a county cannot
dictate the actual mechanism as Snohomish County has done in HO-7.
HO-8
HO-8Implement policies and programs that
encourage the upgrading of neighborhoods and the rehabilitation and
preservation of the supply of existing affordable housing, including but not
limited to mobile home park housing, single room occupancy (SRO) housing,
and manufactured housing.R-348, at
3363.
Positions of the Parties
a.City of Edmonds
Edmonds
stated that if the Board struck down HO-4, its objections to HO-5, 8, 9 and
11 would be addressed.EPB, at 17.
b.n
style="mso-spacerun: yes">City of Lynnwood
Lynnwood objected to HO-8
because it “... could be interpreted to mean that policies must provide for
retention of existing mobile home parks, no matter how dilapidated.By using the phrase 'including but not
limited to,' it appears all of the listed types of housing are required to
be included for rehabilitation and preservation."Therefore, HO-8 could intrude on Lynnwood’s
decision, for instance, to terminate existing mobile home parks if they are
extremely dilapidated.Accordingly,
the City asked that a period be placed after the phrase “existing affordable
housing” -- in effect, deleting the phrase “including but not limited to
mobile home park housing, single room occupancy (SRO) housing, and
manufactured housing.”LOB, at 57.
c.Snohomish County
The
County simply responded to Lynnwood’s concerns by stating that HO-8 does not
include a requirement that cities must permanently preserve all mobile home
parks, regardless of their condition.Instead, the County accuses Lynnwood of
unreasonably interpreting HO-8.SCRB,
at 45-46.
Discussion
The Board agrees with the
County that Lynnwood's interpretation of HO-8 is unreasonable.HO-8 does not prohibit cities from
terminating existing mobile home parks if they are extremely dilapidated nor
would it prevent a city from performing its other health, welfare and public
safety duties.
HO-9
HO-9Implement a coordinated monitoring program
to evaluate progress towards achieving housing goals and objectives on a
countywide and jurisdictional level.Such a monitoring program shall entail the
preparation of a housing monitoring report every five years or more
frequently if housing conditions warrant.The housing report will include an
assessment of the adequacy of the jurisdictions' supply of developable
residential building lots, the jurisdictions' supply of land for
non-residential land uses, the location of urban growth boundaries, and an
assessment of the jurisdictions' strategies for achieving their housing
objectives.an>R-348, at 3363 (emphasis
added).
Positions of the Parties
a.City of Edmonds
See
Edmonds’ position above regarding HO-8 for its position on HO-9.
b.Snohomish County
Because
it claims that HO-4 is a valid policy, the County claims that Edmonds’
objections to HO-9 were already satisfied.SCRB, at 45.
Discussion
Only Edmonds objected to HO-9
but indicated it would not continue its objection if the Board struck down
HO-4.The Board concluded that HO-4
was in compliance with the GMA.Likewise, the Board concludes that HO-9
complies with the GMA.HO-9 discusses
“achieving housing goals and objectives on a countywide and jurisdictional
level” which is consistent with and bolsters the County’s interpretation of
the word “areas” in HO-4 -- that “areas” means a larger category of
jurisdictions that intra-city neighborhoods.
HO-11
HO-11Adopt a local planning process that
reconciles the need to encourage and respect the vitality of established
residential neighborhoods with the need to identify and site essential
public residential facilities for special needs populations, including those
mandated under RCW 36.70A.200.R-348,
at 3363 (emphasis added).
Positions of the Parties
a.City of Edmonds
See
Edmonds’ position above regarding HO-8 for its position on HO-11.
b.City of Lynnwood
Lynnwood
objected to HO-11 and requested that the phrase “Adopt a local planning
process” be deleted and replaced with the words “Contain policies.”The City’s contention was that the phrase
“local planning process” was unclear.Did it mean development of an entirely new
process or simply the modification of an existing one?Furthermore, regardless of the meaning of
this phrase, by directing cities to do this, the County was requiring an
implementing development regulation procedure rather than providing a policy
statement for a comprehensive plan.As
a consequence, the County had violated the GMA.LOB, at 57-58.
c.Snohomish County
The
County totally disagreed with Lynnwood’s position on HO-11.The County maintains that HO-11 addresses
comprehensive plan provisions, not implementing regulations, addresses a
regional objective, and is consistent with the GMA.The County claims that specifics of the
planning process a city is required to include within its comprehensive plan
are left to a city’s “own design.”Finally, the County accuses Lynnwood of
ignoring RCW 36.70A.200(1) which requires comprehensive plans of cities to
include a process for identifying and siting essential public
facilities.SCRB, at 46.
Discussion
The use of the verb "adopt"
in HO-11 is certainly directory.However, as Lynnwood pointed out, the
phrase "a local planning process" is undefined.Therefore, it is not certain whether HO-11
requires an implementing development regulation procedure or constitutes a
policy statement for a comprehensive plan.The Board repeats that when a County adopts
its CPPs, it should be as precise as possible in wording specific
policies.When a specific policy is
vague, the Board generally will either remand the policy with instructions
to clarify the policy, or it will allow the policy to stand as written with
the understanding that any uncertainty will benefit cities attempting to
implement the policy in their comprehensive plans.Thus, counties will have more difficulty in
successfully challenging a city's actions in adopting comprehensive plans
that allegedly are inconsistent with the County's CPPs in instances where
the CPPs themselves are vague.
HO-9 can stand as is;
however, cities will be given wide latitude in the manner in which they
elect to "[a]dopt a local planning process."As the County argued, this will be left to
an individual city's "own design."Accordingly, the Board interprets HO-11 as
addressing comprehensive plan provisions and not implementing development
regulations.This holding is
consistent with the Board’s determination regarding policies CF-1 and OD-7.
See Legal Issue No. 8 below .
HO-17
HO-17Minimize housing production costs by
considering the use of a variety of infrastructure funding methods,
including but not limited to existing revenue sources, impact fees, local
improvement districts, and general obligation bonds.R-348, at 3364 (emphasis added).
Positions of the Parties
a.City of Edmonds
Edmonds
objects to HO-17 because the policy contains the directory verb “minimize”
in the same sentence as the participle “considering.”The City’s complaint is that “directing a
city to minimize housing production costs can not be achieved by
simply considering a use of a variety of infrastructure funding
methods.”Edmonds argues that the only
way to minimize costs is by actually using a tool that is designed to reduce
overall housing costs.However, this
policy limits traditional legislative discretion available to a city.On the other hand, Edmonds acknowledges
that if HO-17 simply means that a local legislative authority is required to
consider but not required to implement a specific mechanism, then it is not
an objectionable policy.EPB, at 15.
O:P>
b.City of Lynnwood
Lynnwood
did not object to HO-17 because it concluded that the policy meant only that
a city must consider the use of a variety of infrastructure funding
techniques, but it was not required to adopt them.LOB, at 58.
c.Snohomish County
The
County claims that HO-17 has two parts.First, the overall “aspirational goal” of
the policy is to “minimize housing production costs.”The second part of the policy is a “..
statement of the means each jurisdiction is to use to try to achieve the
goal.”The County maintains that all
cities must do to comply with HO-17 is to consider the use of a variety of
infrastructure funding methods.SCRB,
at 47.
Discussion
Although the Board
appreciates Edmonds' concern as to how HO-17 could be literally
interpreted, it concludes that this interpretation is not reasonable.A city is not limited to minimizing housing
costs by considering only the listed infrastructure funding methods.The policy itself indicates that the
methods listed are just an example (e.g., "including but not limited
to”).This conclusion is reinforced
because the policy uses the word "variety" -- implying that other methods
that are not listed can also be considered.In addition, HO-17 does not mean that
cities cannot use other, non-infrastructure, funding methods to reduce
housing costs.As the County argued,
the main goal of HO-17 is to minimize costs.HO-17 simply requires cities to consider,
among any other methods it chooses to achieve this goal, infrastructure
funding methods.
HO-18
HO-18Ensure that each jurisdiction's impact fee
program adds no more to the cost of each housing unit than a fairly-derived
proportionate share of the cost of new public facilities needed to
accommodate the housing unit, as determined by the impact fee provisions of
the Growth Management Act cited in RCW 82.02.R-348, at 3364.
Positions of the Parties
a.City of Edmonds
Edmonds
stated that if the Board interprets HO-18 to mean nothing more than that a
city is required to comply with the impact fee provisions of the GMA, it
would not have an objection.However,
the City asserts that the paraphrasing of statutory language in HO-18 is
incomplete and thus misleading.For
instance, Edmonds argues that HO-18 does not address the requirements of RCW
82.02.050(2) regarding balancing impact fees and other sources of public
funds, nor the language of RCW 82.02.060 regarding the specific requirements
imposed on local governments in order to impose impact fees.Therefore, the City suggests rewording
HO-18 as follows:
Comply
with the impact fee provisions of the Growth Management Act as cited in
[Chapter] 82.02 [RCW] in order that each jurisdiction’s impact fee program
does not require a specific development to pay arbitrary or duplicative fees
for the same impact.EPB, at 16.
b.City of Lynnwood
Lynnwood
objected to HO-18 because that policy assumes that a jurisdiction has or
will have an impact fee program.“Lynnwood does not currently have an impact
fee program.Whether Lynnwood chooses
such a program in its comprehensive plan and development regulations is for
Lynnwood, within its local prerogative, to determine.”LOB, at 58.
c.Snohomish County
The
County again responded that the Petitioners’ objections were frivolous
because this policy “does not require any jurisdiction to adopt an
impact fee program.”The County also
pointed out that it cannot amend Chapter 82.02 RCW by adopting a planning
policy -- only the legislature can amend statutes.Finally, it argued that HO-18 is consistent
with the proportionate share limitation of RCW 82.02.050(3)(b).
Discussion
The Board has reviewed
Chapter 82.02 RCW and concluded that the policy specified in HO-18 does not
conflict with that chapter.The Board
interprets HO-18 as meaning simply that if a city elects to adopt an
impact fee program pursuant to Chapter 82.02 RCW, it must comply with that
chapter.The Board agrees with
Lynnwood that it remains within its local prerogative whether a city will
adopt such an impact fee program.HO-18 does not alter that discretion.The “ensure” language in HO-18 applies if a
city elects to participate in an impact fee program; it does not require
that a city so participate.
HO-21
HO-21Encourage local jurisdictions to implement
housing relocation programs as provided under chapter 59.18 RCW.R-348, at 3365.
Positions of the Parties
a.City of Lynnwood
Lynnwood
objected to HO-21 because a local jurisdiction that did not elect to adopt a
housing relocation program under Chapter 59.18 RCW would not be in
compliance with this policy.Lynnwood
maintains that it is its business whether it will adopt a Chapter 59.18 RCW
housing relocation program -- the County cannot mandate it.Therefore, the City suggests that HO-21 be
revised to require local jurisdictions merely to consider Chapter 59.18 RCW
programs.LOB, at 58.>
b.Snohomish County
The
County alleges that Lynnwood’s objection to HO-21 is frivolous because the
policy does not require cities to adopt a housing relocation program.Instead, they are only encouraged to do
so.However, each jurisdiction must
make its own determination what type of housing relocation program, if any,
it will adopt in its implementing regulations.SCRB, at 48.
Discussion
The
Board agrees with the County's interpretation of HO-21.The policy does not require a city to
implement housing relocation programs as provided under Chapter 59.18
RCW.It only encourages a city to do
so, which the Board treats similarly to asking a jurisdiction to consider
the program./span>Whether a city elects
to implement a Chapter 59.18 RCW housing relocation program remains in its
sound discretion.“HO-21 does not,
therefore, mandate or require the implementation of housing relocation
programs...” nor does it “... alter the land use powers of the cities.”See Stipulation of Fact filed by the
parties on July 1, 1993 , at 2.
OD-8
OD-8Encourage land use, economic and housing
policies that co-locate jobs and housing to optimize use of existing and
planned transportation systems and capital facilities.R-348, at 3358.
Positions of the Parties
a.City of Edmonds
Edmonds
“appealed policies HO-5, 7, 8, 9, 11, 17, 18 and OD-8 because of the
inter-relationship of the various provisions.”EPB, at 11.However, the City never specifically
addressed OD-8.
P>
b.City of Lynnwood
Lynnwood
voiced “no objection” to OD-8. LOB, at 58.
c.Snohomish County
Since
neither Edmonds nor Lynnwood objected to OD-8, the County requested that the
Board affirm it.SCRB, at 48.
Discussion
The Petitioners’ treatment of
OD-8 constitutes an abandonment of that portion of Legal Issue No. 6.Therefore, that portion of Legal Issue No.
6 that challenges OD-8 is dismissed with prejudice.
Conclusion No. 6
The Board concludes that the
following policies challenged by the Petitioners, HO-4, 5, 8, 9, 11, 17, 18
and 21, and OD-8 of the Snohomish County CPPs are in compliance with the GMA
since they address legitimate regional issues, do not alter the land use
powers of cities and are otherwise consistent with the GMA.
The Board further concludes
that HO-7 is not in compliance with the GMA because it is not consistent
with other provisions of the Act and because it alters the land use powers
of cities.
Legal Issue No. 7
Legal
Issue No. 7 was dismissed pursuant to the Board’s June 22, 1993, Order on
Motions to Supplement the Record and Order Granting Edmonds’ Motion to Amend
Pleading to Voluntarily Dismiss Portions of Appeal [i.e., Legal Issue No.
7].
Legal Issue No. 8
Do Policies CF-1 and
OD-7 relating to Capital Facilities siting alter the land use powers of
cities? [E]
The Snohomish CPPs on capital
facilities siting include:
CF-1Formulate a common site review process to
evaluate facility proposals according to criteria established for sites
anywhere in Snohomish county.The
Snohomish County Tomorrow Steering Committee shall establish this process,
which shall provide for or include:
a.a definition of these facilities
b.an inventory of existing facilities and
planned future facilities of the type under consideration for siting;
c.economic and other incentives to host
jurisdictions;
d.a public involvement strategy;
e.safeguards for the environment and for
public health and safety;
f.consideration of alternatives to the
facility; and
g.variations in the process to account for
special cases, such as, 1) facilities with inherent siting limitations (e.g.,
ports), 2) modifications or expansions of existing facilities on existing sites,
and 3) scale differences between “countywide" and "statewide" facilities.
(Sample
components of a site review process are available in a separate working
paper.)R-348, at 3366.
OD-7Develop and coordinate compatible capital
facility construction standards for all service providers within a
particular UGA.R-348, at 3358.
Positions of the Parties
a.City of Edmonds
(1)Policy CF-1
The City of Edmonds asks the
Board for clear direction on the above cited policies.Its concern arose after adoption of the
CPPs, when a draft policy providing for a county-wide hearing examiner
system was proposed by a SCT advisory board, the Planning Advisory Committee
on Capital Facilities Siting..The
City characterized that draft as in conflict with local jurisdictions'
decision making authority.While it
notes that the draft policy has since been modified to eliminate that
conflict, the advisory board's initial action, characterized by the City as
badly misconstruing the policy, led Edmonds to continue to seek
clarification.EPB, at 17.
If CF-1
is interpreted to convert a planning process into an interjurisdictional
administrative review process aimed at the details of siting, it would
violate a variety of land use powers exercised by cities.EPB, at 18.
Edmonds notes that various
drafts issued by the advisory committee are intended to apply only to
essential capital facilities of regional (county-wide or state-wide)
significance, but the policy does not provide guidance on how to determine
which facilities are of a county-wide nature.
The City further challenges
Section (f) of the policy, requiring the consideration of alternatives, as
an intrusion into the cities' authority and duties under the State
Environmental Policy Act.
Finally, Edmonds asks the
Board to provide clear direction that:
... CF-1
and the common site review process can not usurp the City's traditional
decision making authority regarding issues such as zoning, architectural
design review, building permit review and issuance, conditional use
requirements and SEPA review.EPB, at
20.
(2)Policy OD-7
Edmonds notes that a UGA may
contain both incorporated and unincorporated areas, and agrees that a
requirement in such areas for "...uniform standards for pavement and
sidewalk width, and the sizing of water and sewer pipes, is good regional
planning..."Its concern is with the
potential effect of the policy on a municipality's design standards for
capital facility construction within its boundaries. EPB, at 21.
(3)Combined Effect of Policies CF-1 and OD-7
Finally, Edmonds expresses
concern that "...the ambiguity of OD-7 combined with the intrusive and
directory language of CPP CF-1 could be read to provide for a common siting
and construction standard process to be applied to all capital facilities
construction regardless of where located..."EPB, at 21.It asks the Board to:
...
confirm that CF-1 is a planning process, not an authorization to substitute
a county-wide approval system for capital facilities for the existing land
use system which vests final approval in local jurisdictions...OD-7 similarly requires a limited
interpretation.By adopting such an
interpretation, the policies can be preserved and will not alter the land
use powers of the cities.EPB, at 22.
b.Snohomish County
(1)Policy CF-1
The County directs the
Board's attention to the context in which CF-1 is presented in the
CPPs.It is located under the heading
"Policies for the siting of public capital facilities of a county-wide or
state-wide nature," followed by a head note stating that: "The following
policies shall guide development of the siting process to be included
within the comprehensive plans of Snohomish County and its cities."SCRB, at 49 (emphasis in original).
In response to Edmonds' "...
apparent fear ... that the common site review process referred to in Policy
CF-1 is intended to substitute for the traditional permit review process of
the city," the County denies such intent:
The
required provisions of the review process to be included in comprehensive
plans stated in subparagraphs (a) through (g) do not describe a substitute
permitting process but rather a process for the formulation of uniform
planning policies needed to accommodate sites for public facilities of a
county- and state-wide nature within each jurisdiction's comprehensive
plan.SCRB, at 51.
Responding to Edmonds'
concerns about the types of facilities potentially subject to the planning
process contemplated by CF-1, the County asserts that, contrary to Edmonds'
concern, the policy does not affect siting of individual, independent small
facilities in specific areas of a community.
Such
detailed implementation decisions are appropriately left to the local
jurisdictions to be made in their regulations implementing their
comprehensive plans.SCRB, at 51.
The County refutes Edmonds'
speculation that it would be required to revise its SEPA process, observing
that "[t]he only connection between this policy and SEPA is that both the
policy and the state statute contain the word 'alternatives' somewhere
within their text."SCRB, at 51.
Finally, the County asserts
that Policy CF-1:
... meets
a required regional objective of addressing the siting of public facilities
of a county-wide or state-wide nature, it provides substantive direction
only to the provisions of comprehensive plans and it is consistent with
other relevant provisions of the GMA.Thus, Policy CF-1 is valid under the
Board's analytical framework.SCRB, at
51-2.
(2)Policy OD-7
The County asserts the
validity of Policy OD-7:
... it
meets the legitimate reasonable objective of providing compatible capital
facilities within a UGA, it does not require any set implementing regulation
and it is consistent with the GMA.SCRB, at 52-3.
Discussion
Edmonds objects to CF-1 and
OD-7 on the grounds that these policies intrude upon the city's traditional
land use powers by directing the city to adopt a common site review process
for siting capital facilities of a county-wide or state-wide nature that the
County will determine in the future.While Edmonds' assertion appears to have
some merit, a closer look at the GMA reveals that this is not the case: it
is not the County's CPPs that alter the city's traditional land use powers,
but it is the GMA.
RCW 36.70A.210, Countywide
planning policies, at subsection (1) provides two important points
concerning the purpose and effect of CPPs.The first point, as noted in our decision
in Snoqualmie, is that the CPPs provide a "framework [to] ensure that
city and county comprehensive plans are consistent as required by RCW
36.70A.100."RCW 36.70A.210(1).The second and most relevant point here is
that "[n]othing in [the section describing CPPs] shall be construed to alter
the land-use powers of cities."If one
were to stop reading section .210 of the GMA after subsection (1) and also
fail to consider the substantive effect that other provisions of the GMA
have on the cities' land-use powers, one would be inclined to believe
Edmonds' argument.SPAN>However, section
..210 cannot be read in a vacuum: to do so would lead to inconsistent
conclusions and absurd results that would ultimately frustrate the intent of
the GMA.
RCW 36.70A.210 at subsection
(3)(c) directs each county to address within its CPP "[p]olicies for siting
capital facilities of a county-wide or state-wide nature."RCW 36.70A.070, Comprehensive plans -
mandatory elements, at subsection (3), directs each jurisdiction planning
under the Act to include in its comprehensive plan:
A capital
facilities plan element of: (a) An inventory of existing capital facilities
owned by public entities, showing the locations and capacities of the
capital facilities; (b) a forecast of the future needs for such capital
facilities; (c) the proposed locations and capacities of expanded or new
capital facilities; (d) at least a six-year plan that will finance such
capital facilities within projected funding capacities and clearly
identifies sources of public money for such purposes; and (e) a requirement
to reassess the land use element if probable funding falls short of meeting
existing needs and to ensure that the land use element, capital facilities
plan element, and financing plan within the capital facilities plan element
are coordinated and consistent.
In addition, RCW 36.70A.200,
Siting of essential public facilities, provides that:
(1) The comprehensive plan of each county
and city that is planning under this chapter shall include a process for
identifying and siting essential public facilities.Essential public facilities 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
in-patient facilities including substance abuse facilities, mental health
facilities, and group homes.
(2) The office of financial management shall
maintain a list of those essential state public facilities that are required
or likely to be built within the next six years.The office of financial management may at
any time add facilities to the list.No local comprehensive plan or
development regulation may preclude the siting of essential public
facilities.(Emphasis added).
Clearly, the Act requires
counties and cities to address the issue of siting essential public
facilities in their respective comprehensive plans.However, the Act does not stop with
requiring cities and counties to simply address the issue: the Act
specifically imposes the positive requirement that the comprehensive plans
of all jurisdictions planning under the Act must include a process for
identifying and siting public facilities (RCW 36.70A.200(1)) and may not
preclude the siting of essential public facilities (RCW 36.70A.200(2)).Therefore, it is section .200 of the Act
that alters the traditional land-use powers of the cities, not the
requirements of RCW 36.70A.210(3)(c).
Thus, pursuant to RCW
36.70A.210(1), the policies outlined in CF-1 and OD-7 have no substantive
binding effect on the comprehensive plan of Edmonds or any other city in
Snohomish County.The fact that the
County has chosen to outline the positive requirements of the GMA (found
elsewhere in the Act) on cities' and counties' comprehensive plans in its
CPPs does not mean that the County's CPPs necessarily control or direct what
a city must include in its comprehensive plan.The County's planning policy merely
collects in one document all of the mandatory provisions of the GMA that
alter the cities' traditional land-use powers, instead of leaving the cities
to their devices to figure out what the GMA requires.By including the mandatory elements of the
GMA in its CPPs, the County is fulfilling its responsibility to aid in the
consistent development and implementation of city and county comprehensive
plans.See RCW 36.70A.100 and
.210(1).
As for policy OD-7, the Board
holds that it is in compliance with the GMA as written.However, this policy is another instance
where the County has adopted a vague policy.For instance, the phrase “construction
standards” is undefined.The Board
again cautions the County that any subsequent challenge it might bring
against a city for failing to comply with OD-7 will not be looked upon
favorably, because the lack of clarity in OD-7 provides a maximum degree of
flexibility to cities.With this
warning in mind, the Board nonetheless approves OD-7 as an attempt to
address a legitimate regional goal:"compatible construction standards."As Edmonds itself pointed out, “[r]equiring
uniform standards ... is good regional planning which enables the ready
passage of traffic and pedestrians or [which serves as] the basis for an
economic transfer of service from a water or sewer district to a city.”EPB, at 21.However, the Board’s willingness to permit
the County to develop a system for achieving compatible capital facility
construction standards will end if the County attempts to dictate the actual
design or construction standards of any city.SeeSnoqualmie.Achieving compatibility of the construction
standards of the various service providers within a UGA falls within the
purview of a legitimate regional issue; specifying what the particular
construction and design standards are remains within the sole province of
cities.
Conclusion No. 8
Policy CF-1 is in compliance
with the GMA.This policy addresses a
legitimate regional issue, the siting of public capital facilities of a
countywide or statewide nature.Although a strict reading of the policy
could lead to the conclusion that it alters the land use powers of cities,
the Board concludes that other provisions in the Act, particularly RCW
36.70A.200, instead alter a city’s pre-GMA land use authority.Therefore, CF-1 is not inconsistent with
the other provisions that require proactive steps to be taken to identify
and site such public facilities, and that prohibit any jurisdiction from
precluding the siting of essential public facilities.
The Board also concludes that
OD-7 is in compliance with the Act.The Board finds that establishing a process
for achieving compatible construction standards is a legitimate regional
exercise.However, the process cannot
dictate the actual construction or design requirements for individual
cities.
Legal Issue No. 9
Does Policy HO-16
require a city to process permit applications within 180 days?If so, does it alter the land use powers of
cities? [E]
The CPPs sets forth the
following permitting policy in HO-16:
Ensure
the expeditious and efficient processing of development applications by
endeavoring to process complete development applications within 180
days.The jurisdictions shall maintain
clear and specific submittal standards and the most current available
information on wetlands, geologic hazardous areas, and fish and wildlife
habitat conservation areas.The
expeditious processing of development applications shall not result in the
lowering of environmental and land use standards.R-348, at 3364.
Positions of the Parties
a.City of Edmonds
Edmonds asserts that HO-16,
by its own terms specifically applicable to development applications, deals
with the land use powers of cities, and where it inserts a specific time
frame, 180 days for permit processing, it attempts to alter the city's land
use powers.EPB, at 22./span>It first asks whether the 180-day period
is a mandatory or a directory element, given the use of the terms "ensure"
and "endeavor" in the same sentence.Edmonds suggests that a Board ruling that
the position of the 180 day limitation following "endeavor" renders it a
generalized goal rather than a mandatory requirement would "cure" its
concerns with HO-16.
Without such clarification,
the City alleges that the policy would intrude on its land use powers, such
as a specialized administrative review process for geological hazardous
areas, and its prerogative to "...establish review and appeal procedures
which encourage broad public participation and the reasonable exercise of
due process rights both by citizens and developers."EPB, at 23.
Edmonds offers three specific
examples where the time limit is incompatible with the City's permit
process: generally, "...where the development application includes a variety
of review processes such as site plan review, rezone, building permit
applications, and architectural design review, with sequential processing;"
specifically, where its geotechnical review process alone "...frequently
takes 180 days and more to complete because of the highly technical
geotechnical issues involved..;" and finally, where under Edmonds' appeal
process for land use decisions, a hearing examiner's initial decision is
appealable de novo to the City Council.In the last instance, imposition of a time
limit would interfere with the City providing "...for full citizen input and
appeal by limiting the overall time in which an application may be
considered."EPB, at 24-25.
b.Snohomish County
The County responds that
"[W]hat the policy requires is that local jurisdictions endeavor to
process applications within 180 days."Endeavor" equates with "attempt" or
"try."... Policy HO-16, used as intended as a policy to guide the
preparation of the city's comprehensive plan, is clearly valid.SCRB, at 53-54.
Discussion
In short, Edmonds argues that
if the 180-day permit processing time limit is mandatory, then Policy HO-16
impermissibly alters the land use powers of cities.
Where, as here, the Act sets
forth a planning goal concerning permit processing to guide
development of comprehensive plans and implementing regulations, it is an
appropriate exercise of the County's authority and responsibility to address
such a goal in its CPPs since CPPs establish “a county-wide framework from
which county and city comprehensive plans are developed and adopted.”RCW 36.70A.210(1).
With these observations in
mind, the first question is whether HO-16's establishment of a 180-day
period for permit processing is a reasonable interpretation of RCW
36.70A.020(7)’s "timely" processing requirement to “ensure
predictability.”The second is whether
the time period is mandatory or advisory.Finally, if mandatory, does it alter the
land use powers of cities contrary to RCW 36.70A.210(1).
Edmonds cites several
specific factors which would thwart its attempt to complete permitting
within 180 days.First, the Board
notes that HO-16 addresses the processing of permit applications, not
a city's requirements for a complete application, or its procedure for
making the final decisions to approve or deny them in response to an
appeal.Under even the most
restrictive reading of this policy, cities would still retain their broad
discretion.
Second, Edmonds alleges that
its geotechnical review process would potentially hinder its meeting a
180-day processing deadline.The Board
notes that one of the benefits of the Act's requirement that cities and
counties identify and regulate critical areas, including geologically
hazardous areas, under RCW 36.70A.170(1)(d) is to provide much more
geotechnical information as well as detailed regulations to an applicant,
potentially allowing for a significant reduction in the need for site
specific analysis at the time of permit application.
Third, after permit issuance,
nothing in UG-16 could be read to interfere with the City's continued use of
those appeal processes authorized by SEPA and other land use and permitting
statutes, as implemented by the City's ordinances.
Fourth, Edmonds is concerned
that the time limit could interfere with "full citizen input and
appeal."The Board observes that under
the GMA, the primary and appropriate opportunity for citizen participation
is at the policy level.RCW
36.70A.020(11) encourages "... the involvement of citizens in the planning
process...."RCW 36.70A.140 requires
"...early and continuous public participation..." in comprehensive planning
and the development of implementing regulations.Under GMA planning, the preferred and
primary opportunities for citizen involvement occur earlier.The emphasis shifts from permitting to
planning activities, when the comprehensive plan and regulations are
adopted.
The Board holds that the
selection of 180 days is a reasonable interpretation of the Act’s goal of
timely processing of permit applications.
Next, the Board examined the
specific terms used in HO-16 to determine whether the policy was mandatory
and, if so, whether it altered the city's land use powers.The policy is phrased both as an outcome
and a method of achieving that outcome:"Ensure the expeditious and
efficient processing of permit applications by endeavoring to process
permits within 180 days."The intended
outcome is “expeditious and efficient processing of permit
applications.”This is the
“aspirational” goal of HO-16.Because
it uses the word “ensure,” a verb the Board concludes is extremely
directory, HO-16 mandates that cities and the County process
development applications expeditiously and efficiently.However, this portion of HO-16 does not
alter the land use powers of cities since it merely paraphrases one of the
Act’s goals.
What about the method HO-16
utilizes to achieve its goal, i.e., “by endeavoring to process complete
development applications within 180 days” -- does it alter the land use
authority of cities?Importantly, the
County elected to use the word “endeavoring” for this portion of the
policy.This term is far less
directive than the word “ensure.”Had
HO-16 read:“Ensure the expeditious
and efficient processing of complete development regulations within 180
days”, the Board certainly would have held that the policy altered the land
use authority of cities.Nevertheless,
as written, the Board treats the “endeavoring” language as simply suggesting
a measurement for achieving HO-16’s aspirational goal.
The Board’s construction of
HO-16 is consistent with the County’s acknowledged overall purpose in
adopting the CPPs and its intent not to alter the land use powers of
cities.Thus, a reasonable reading of
the entire sentence would be that cities must make a good-faith effort to
process permits within six months in order to reach the desired outcome of
expeditious and efficient processing.However, the Board treats only the
aspirational goal as mandatory.The
measurement for achieving this goal, the 180 days, is not mandatory; a city
is not required to process a permit application within 180 days and may on
occasion have perfectly legitimate reasons for not doing so.Failing to meet the 180 day deadline, by
itself, would not constitute legitimate grounds for an appeal.Conversely, failing to take steps to ensure
expeditious and efficient permit processing would.
>
Conclusion No. 9
Policy HO-16 is a reasonable
interpretation of the GMA’s planning goal at RCW 36.70A.020(7).Moreover, it is in compliance with the Act
since it does not alter the land use powers of cities.That portion of HO-16 that requires
jurisdictions to “ensure” expeditious and efficient permit processing is
mandatory and binding as a legitimate regional objective.However, the reference to completing the
processing of permits within 180 days is only advisory and not binding.
Legal Issue No. 10
Does
Policy OD-2 alter the land use powers of cities?
OD-2
provides:
Allow development within the incorporated
and unincorporated portions of the UGA as follows:
a.The cities will regulate development such
that it does not preclude urban densities and does provide for urban
governmental services and capital facilities.
b.The county will regulate development within
the urban growth areas in a manner that does not preclude urban densities,
based on strategies which will be developed as part of the joint
comprehensive planning process for each urban growth area.These strategies will consider the unique
development opportunities and constraints in each urban growth area and
could range from development limitations in one area to the authorization of
development at planned urban densities in those areas that have urban
governmental services and capital facilities available.
c./SPAN>Development will be consistent with six
and twenty year land use and capital facilities plans.R-348, at 3357-3358.
Positions of the PartiesO:P>
a.City of Edmonds
Edmonds'
concern is with subparagraph (b) of OD-2 because:
Any
attempt by the county to regulate development within the incorporated
portion of any urban growth area is a clear intrusion into the local
jurisdiction's (cities) land use powers.EPB, at 25.
If the
Board finds that the language of OD-2(b) is applicable to the entire urban
growth area, incorporated and unincorporated, then it must find that the
county's attempt to exercise development regulations alters the City's land
use powers by usurping it.EPB, at 26.
b.City of Lynnwood
Lynnwood
argues that the language of OD-2 is vague because of a lack of definitions
and a lack of clarity about who takes actions to determine densities.Lynnwood provides specific recommendations
for revisions to OD-2 to make it clearer and to bring it into compliance
with the Act.
Lynnwood
states its objections to OD-2 as follows:
(1)"Urban densities" is not defined, nor is it
clear who sets or how urban densities will be determined.This phrase in OD-2 should be revised to
read "urban growth" a defined term at RCW 36.70A.030(14).
(2)"Regulate development" could be interpreted
to require comprehensive plans and development regulations deny permit
issuance where a property is zoned to a [sic] "urban density," but the
permit applies for a lesser density.The policy should be revised to clarify
that no minimum density or minimum lot size is required to be adopted by a
local jurisdiction, since to do so would violate local land use prerogative.
(3)The phrase "provide for" urban governmental
services and capital facilities should be clarified and revised to make
clear that the local jurisdiction is not required to "provide" the capital
facilities, but only to ensure that statutory concurrency requirements are
met.AN>LOB, at 59.
c.Snohomish County
The
County argues that the lack of specificity in OD-2 leaves maximum
flexibility and therefore does not alter the land use powers of cities.
...
Lynnwood's concern over the lack of definition of "urban densities" is
surprising since the lack of a definition in the CPP allows the city to
devise its own definition within its comprehensive plan, assuming the
definition the city selects is consistent with GMA requirements and the
interlocal agreement [i.e. Exhibit 306] it has entered into with the county
along with the other southwest cities.
Policy
OD-2 is directed to comprehensive plans and does not direct specific
requirements for implementing regulations.Thus, the phrase "regulate development"
does not require the city to adopt the required minimum densities. ...
Finally,
as to Lynnwood's objections, subparagraph (a) of Policy OD-2 directs cities
to regulate development such that the development provides for urban
governmental services and capital facilities.It does not require the city itself to
provide them.SCRB, at 55 (emphasis in
original).
In
answer to Edmonds' brief, the County states:
Edmonds
is concerned with subparagraph (b) of Policy OD-2.To answer Edmonds' stated concerns, Policy
OD-2 will not operate in a vacuum.The
mere adoption of this CPP does not suddenly amend the state constitution and
allow the county to adopt land use regulations which apply within
incorporated areas of the county.Read
in context with subparagraph (a) of Policy OD-2, it is obvious that
subparagraph (b) concerns only the unincorporated portions of urban growth
areas.SCRB, at 56.
Discussion
Lynnwood's specific
objections to OD-2(a) are valid insofar as the phrase "will regulate
development" appears to speak directly to the land use powers of cities, and
thus violate the second of the three prongs articulated in the
Snoqualmie decision:
(2) A
specific policy within the CPPs can provide substantive direction only to
the provisions of a comprehensive plan, and cannot directly affect the
provisions of an implementing regulation or other exercise of land use
powers.Snoqualmie, at 18.
A valid policy within the
CPPs to achieve the County’s apparent intent would read:"City comprehensive plans shall include
strategies and land use policies to achieve urban densities and provide for
urban governmental services and capital facilities."
Such a policy would be
appropriate because is it logical to assume that urban densities will be
achieved within urban growth areas and that new growth will be required to
provide for the urban governmental services and capital facilities that are
necessitated by that growth.However,
this is not the only way to achieve this result but merely a suggested
wording of the policy.Yet, no matter
how a policy is worded, in order to be in compliance with the Act, such a
policy must speak explicitly to comprehensive plans rather than to
development regulations or other exercises of the land use powers of
cities.Since OD-2(a) does go directly
to development regulations, it is not in compliance with the GMA.
With regard to Lynnwood's
concern about the vagueness of "urban densities," the Board finds no
non-compliance.The designation of a
city's urban growth boundaries will determine its geographic area and the
population and employment allocations will determine the number of people
and jobs for which it must plan.These
two actions will establish a gross density citywide that will, by
definition, constitute "urban densities."
Edmonds' objection to Policy
OD-2(b) is based on the assumption that it is intended to apply to the
incorporated areas as well as the unincorporated areas.The Board agrees with the County's argument
that OD-2(b) was intended to address only the unincorporated portions of the
UGA.The Board reaches this conclusion
based on the initial sentence of OD-2, which acknowledges the distinction
between incorporated and unincorporated areas, and because of the general
intent of the CPPs not to alter the land use powers of cities.Therefore, the Board will read OD-2(a) and
(b) as if the following underlined words were included within the actual
language of the policy:
a.The cities will regulate development
within the incorporated portion of UGA’s such that it does not
preclude urban densities and does provide for urban governmental services
and capital facilities.
b.The county will regulate development within
the unincorporated portions of urban growth areas in a manner that
does not preclude urban densities, based on strategies which will be
developed as part of the joint comprehensive planning process for each urban
growth area.These strategies will
consider the unique development opportunities and constraints in each urban
growth area and could range from development limitations in one area to the
authorization of development at planned urban densities in those areas that
have urban governmental services and capital facilities available.(Emphasized language added).
Conclusion No. 10
Policy OD-2(a) is not in
compliance with the Act because it uses the phrase "will regulate
development" and thereby violates the land use powers of cities.This policy should be deleted or amended to
be in compliance with the Act and the Board's determination.
Policy
OD-2(b) applies only to the unincorporated portions of the UGA.It does not alter the land use powers of
cities and is therefore in compliance with the Act.
Legal Issue No. 11
Does
Policy TR-12 alter the land use powers of cities? [L]
TR-12
provides:
Establish
land use designations and site design requirements that are supportive and
compatible with public transportation and as optional elements, to be
separately determined by each local jurisdiction, encourage innovative
techniques such as:
a.
pedestrian-scale neighborhoods and activity centers to stimulate use of
high-occupancy vehicles,
b.mixed-land uses and pedestrian-friendly
design, and
c.employment-intensive land uses and shared
parking.R-348, at 3376.
Position of the Parties
a.City of Lynnwood
Lynnwood
claims that TR-12 alters its land use powers in three ways.First, subsections (a), (b) and (c) of
TR-12 go beyond policy language into specific "... zoning techniques or
development regulations."Therefore,
the City asks that this portion of the policy be stricken.LOB, at 60.
Second,
Lynnwood alleges that TR-12 is too vague since it is uncertain whether the
general policy (to "establish land use designations") applies "throughout
and to every area of a city."Therefore, the City asks that the verb
"establish" be deleted and the verb "include" be inserted.LOB, at 60.
Third,
Lynnwood criticized the TR-12 because "[w]hat the land use designations (and
site design requirements) that are 'supportive and compatible with public
transportation,' and with what types of public transportation, is not
clear."Accordingly, Lynnwood
requested that the policy be revised so that "it is clear land use
designations for the entire city need not be 'supportive' of any prescribed
or minimum level of public transportation."LOB, at 60.
b.Snohomish County
The County
responded to Lynnwood's complaints by citing to RCW 36.70A.210(3)(d).Since that subsection requires CPPs to
address "policies for county-wide transportation facilities and strategies,"
the County maintains that TR-12 meets a legitimate regional objective and
does not alter the land use powers of cities.Accordingly, that objective is to
"establish land use designations and site design requirements that are
supportive and compatible with public transportation."This is an appropriate policy statement in
CPPs that is directed toward an individual jurisdiction's comprehensive plan
and not its implementing development regulations.
Furthermore, the County
claims that Lynnwood misread TR-12.Referring to the subsections of TR-12, the
County argued that these are "optional elements, to be separately considered
and determined by each local jurisdiction and that the listed items are
merely given as examples, not requirements."The County argued that the type and
location of land use designations and site design requirements "is left to
each city to decide."SCRB, at
57-58.
d.1000 Friends
1000 Friends alleges that
TR-12 is supported by the GMA's transportation goal at RCW 36.70A.020(3),
which provides:
Transportation.Encourage efficient multi-modal
transportation systems that are based on regional priorities and coordinated
with county and city comprehensive plans.
1000 Friends' arguments about
the specific language of TR-12 mirrored that of the County."The policy in no way alters the land use
authority of the cities."Amicus
Brief, at 17.
Discussion
The Board agrees completely
with the County's and 1000 Friends' interpretation of TR-12.The first portion (i.e., "Establish land
use designations and site design requirements that are supportive and
compatible with public transportation") constitutes an appropriate general
policy statement for CPPs that again focuses on the compatibility of
standards.It does not alter the land
use powers of cities since it simply establishes a broad goal that must be
accomplished through comprehensive plans and implementing development
regulations.How to achieve that goal
is left to the discretion of individual jurisdictions.
The remaining portion of
TR-12 does list three innovative techniques.However, TR-12 on its face specifies that
these are merely "optional" and only examples (by use of the phrase "such
as").Importantly, the verb
"encourage" is also used, rather than the more directive "establish."Therefore, cities remain free to determine
for themselves which, if any, innovative techniques they might
employ.
Conclusion No. 11
TR-12 is in compliance with
the GMA.It addresses a legitimate
regional objective, does not alter the land use powers of cities and is
otherwise consistent with provisions of the Act.
D.ORDER
Having reviewed the file and
exhibits in this case, having considered the briefs and arguments of
counsel, and having entered the foregoing Findings of Fact and Conclusions,
the Board orders that:
The Snohomish County
County-wide Planning Policies are in compliance with the Growth Management
Act except for the following policies which are remanded with
instructions for Snohomish County to either remove those policies from the
CPPs or to otherwise bring them into compliance with the Board's holdings
and conclusions.
1.)UG-4.
2.)HO-7.
3.)OD-2(a).
Pursuant to RCW
36.70A.300(1)(b), the Board directs Snohomish County to comply with this
Final Decision and Order no later than by 5:00 p.m. on February
11, 1994.
So
ORDERED this 4th day of October, 1993.
CENTRAL PUGET SOUND GROWTH PLANNING HEARINGS BOARD
________________________________
M. Peter Philley
Board Member
________________________________
Joseph
W. Tovar, AICP
Board Member
________________________________
Chris Smith Towne
Board Member
Note:This Final Decision and Order constitutes a
final order as specified by RCW 36.70A.300 unless a party files a Petition
for Reconsideration pursuant to WAC 242-02-830.
O:P>