Transcript Growth Management Act & Best Available Science

Thurston & Lewis County
Case Studies from the
Appellant’s Perspective
Tim Trohimovich, AICP, JD
Planning Director
Futurewise
206-343-0681
[email protected]
Futurewise
(formerly 1000 Friends of Washington)
 Non-profit 501(c)(3) organization
 Our mission at Futurewise is to promote healthy
communities and cities while protecting working
farms and forests and shorelines for this and
future generations
 What we do:
– Research and analysis
– Advocate for better planning and to improve the Growth
Management Act (GMA)
 Local governments
 State agencies & the legislature
– Assist citizen groups and the public
– Appeal plans and regulations that violate the GMA
Periodic Updates are to Improve the
Management of Growth
 In 1000 Friends of Washington v. McFarland, the
Washington State Supreme Court wrote:
[T]he process creates (hopefully) ever improving
management of growth, in light of all of the
different legitimate concerns of the stakeholders in
the system. Nor do we find any evidence of
legislative intent to treat the original
comprehensive plan so differently from revised
comprehensive plans. Instead, the continual
process of revising management of land is itself an
integral part of the structure established by the
GMA.
GMA Counties
Gray:
CARL
counties
Darkest:
Western
Board
Counties
Blue
(Dark)
Stipple:
Central
Board
Counties
Light
(Buff):
Eastern
Board
Counties
Duty to Review and Revise
 A county or city shall take legislative action to
review and, if needed, revise its comprehensive
land use plan and development regulations to
ensure the plan and regulations comply with the
requirements of this chapter according to the time
periods specified in subsection (4) of this section.
RCW 36.70A.130 (1)(a)
 CARL counties and cities must review and revise
designations of natural resource lands and critical
areas and critical areas regulations. RCW
36.70A.130 (1)(b)
Periodic Update Deadlines
12/1/ 2004
Clallam, Clark, Jefferson, King, Kitsap,
Pierce, Snohomish, Thurston, and
Whatcom Counties
12/1/2005
CAOs 12/1/2006
12/1/2006
CAOs 12/1/2007
12/1/2007
CAOs 12/1/2008
Cowlitz,* Island,* Lewis,* Mason, San
Juan, Skagit,* and Skamania Counties
Benton,* Chelan,* Douglas, Grant,*
Kittitas,* Spokane,* and Yakima* Counties
Adams, Asotin, Columbia, Ferry,
Franklin,* Garfield, Grays Harbor,*
Klickitat, Lincoln, Okanogan,
Pacific, Pend Oreille, Stevens,
Wahkiakum, Walla Walla,* and
Whitman Counties
 Ten year update county and some cities *Ten year update cities
Summary of Thurston County
Decision
 Issue 1: Rural Densities Greater than One
Dwelling Unit per Five Acres
– 21,939 acres of rural land with densities equal to or
greater than one dwelling unit per two acres
– County argued that the areas complied with GMA
because they predate the GMA
– Board holds that county must bring these areas into
compliance with LAMIRD requirements in RCW
36.70A.070(5)(d) adopted after the county’s 1995
comprehensive plan
– Court of Appeals affirms
Summary of the Thurston County
Decision (continued)
 Issue 2: No Variety of Rural Densities
– Only five acre designations and zones
– County’s attempt to include natural resource lands as
rural densities violates GMA
– County could use innovative techniques to provide a
variety of rural densities, but the comprehensive plan
did not show they would achieve a variety of rural
densities
– So no variety of rural densities
– Court of Appeals affirms that zoning provided no variety
of rural densities
– As to innovative techniques, Court of Appeals rules the
Western Board shifted burden of proof
Summary of the Thurston County
Decision (continued)
 Issue 3: Oversized Urban Growth Areas (UGAs)
– 60 percent larger than needed
– No market factor
– Violates Diehl requirement that the UGA be based on the
OFM projections
– Court of Appeals affirms
 On February 5, Supreme Court grants Thurston
County’s petition for review and will hear the
appeal, perhaps as early as March 2008
Summary of the Thurston County
Decision (continued)
 Issue 4: Failure to Designate and Protect
Agricultural Lands of Long-Term Commercial
Significance
– Actual use criteria violates Benaroya I decision
– 20 acre parcel size criteria violates requirement to
consider long-term commercial significance factors
– Court of Appeals affirms actual use criteria ruling
– Court of Appeals reverses Board on predominate parcel
size, ruling that county could use that as a nonexclusionary factor
Summary of the Lewis County
Decision
 Agricultural land is:
– Land not characterized by urban growth
– Primarily devoted to the commercial production of
agricultural products enumerated in RCW
36.70A.030(2), including land in areas used or capable
of being used for production based on land
characteristics, and
– long-term commercial significance for agricultural
production, as indicated by soil, growing capacity,
productivity, and whether it is near population areas or
vulnerable to more intense uses
Summary of the Lewis County
Decision (continued)
 Counties may consider the developmentrelated factors enumerated in WAC 365190-050(1) in determining which lands have
long-term commercial significance
 Department of Community, Trade, and
Community development has started to
update its minimum guidelines including
agricultural and forestry designation criteria
Summary of the Lewis County
Decision (continued)
 Must conserve natural resource lands
 Counties may choose how best to conserve
designated lands as long as their methods
are “designed to conserve agricultural lands
and encourage the agricultural economy.”
RCW 36.70A.177(1)
 Agreed with the Board that many allowed
uses did not conserve agricultural land and
violated GMA
Lessons
 Listen to the public, they may be right
 The periodic updates require counties and cities to
review and revise their comprehensive plans and
development regulations to comply with GMA
goals and requirements
 Make the findings required by RCW 36.70A.130
for a periodic update, otherwise the public will be
confused and the county or city may face a failure
to adopt appeal
What is Likely to Happen on
Remand: Thurston
 Supreme Court
– Will hear Thurston County’s appeal
– Decision likely in late 2008 or 2009
 Western Board has ruled that the county must apply its new agricultural
designation criterion, remanded again to county
 Western Board has held that the Rochester LAMIRD included
undeveloped land and so violated the GMA
– Remanded again to Thurston County
– Water association and property owner appeal to Thurston County superior
court
 Western Board has stayed variety of rural densities issue
 Thurston County adopted new rural comprehensive plan and
development regulations
– Appealed to Western Board
– Western Board refuses to dismiss, but rules that it must presume that the
county comprehensive plan is GMA complaint, implying we will loose on the
merits
Lewis County on Remand
 Lewis County has redone its agricultural
lands designation criteria, designations, and
development regulations
 Futurewise and citizens arguing they are
non-complaint
 One property owner argues property was
erroneously designated