Northwest Land Matters - Developments in Real Estate, Land Use, Environmental & Water Law in the Pacific NW

The Washington State legislature recently passed a bill that incentivizes upfront environmental planning by local governments and increases SEPA predictability for developers.  This legislation will help ensure infrastructure is installed in a timely manner, consistent with adopted standards, and will add clarity for both the developer and the city on the limits and requirements of recovering costs through latecomer agreements.

The two elements of this bill are important because they improve the development process by first   increasing predictability of SEPA review for certain development types and second, it provides new rules for who builds and who pays for required water and sewer infrastructure. 

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Last week, the Washington State Supreme Court ruled in Stafne v. Snohomish County, reversing a lower appellate court decision that had caused consternation among local jurisdictions throughout the state. 

The case clarifies the ability of a party to appeal a local jurisdiction’s decision to reject a privately-initiated proposal to amend a comprehensive plan amendment as part of the local jurisdiction’s annual “docketing” process.  The Growth Management Hearings Board historically gave local jurisdictions great discretion to reject proposals from its docket and has repeatedly held that the board does not have jurisdiction to hear appeals of those decisions to not pursue privately initiated comprehensive plan proposals. 

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Partner Jay Derr testified before the State Legislature, sharing perspective on local land use and environmental regulations in the State of Washington.  Insight was given on the Growth Management Act (GMA), the State Environmental Policy Act (SEPA), the Shoreline Management Act (SMA), the various growth management boards throughout the State, and numerous specialized development and environmental regulations.  

The Florida State Legislature repealed its growth management legislation last spring.  While Florida’s repeal still permits local jurisdictions to implement growth management planning tools by their own choice, there are no longer state mandates (nor state oversight) in Florida to do so.  Economic development and jobs were the key reasons articulated for the repeal. 

Washington’s Growth Management Act was adopted largely following Florida’s model.  Does this mean Washington might follow suit?  At least for this next legislative session, where dollars, instead of growth policy are likely to be the major (if not sole) focus of the debate in Olympia, repeal or even significant overhaul of Washington’s Growth Management Act is not likely.  However, cries for regulatory reform (including repeated requests from the Governor’s office for new ideas) could spawn suggestions that Washington consider following Florida’s lead once again—if not in this session, in the near future. 

Perhaps at a minimum, those implementing the Growth Management Act in Washington might be well-advised to pay a bit more attention to the Economic Development Goal in the GMA  and give local governments more ability to make (or change) land use decisions when deemed appropriate to promote economic development and job growth.

There are two different types of rezoning decisions: area-wide rezones and site-specific rezones. Traditionally, both types of rezones were considered to be purely legislative decisions and, like all legislative decisions, were given a high degree of deference by the courts.  Since the passage of the Land Use Petition Act (LUPA) in 1995, however, site-specific rezones have been considered to be “quasi-judicial” decisions.  This change called into question the level of deference that courts should give to local government decisions on site-specific rezone requests.

On June 16, 2011, the Washington Supreme Court issued a unanimous opinion that clarifies the appropriate level of deference in such cases.  Phoenix Development, Inc. v. City Of Woodinville, No. 84296-5 (Wash., June 16, 2011).  In Phoenix Development, the Supreme Court reversed a prior decision by Division I of the Court of Appeals, which had reversed the City of Woodinville’s denial of two rezone requests.  See Phoenix Development, Inc. v. City of Woodinville, 154 Wn. App. 492, 229 P.3d 800 (2009).  The Supreme Court’s opinion affirmed the long history of judicial deference to site-specific rezoning decisions, despite the fact that such decisions are now considered “quasi-judicial” decisions under LUPA.  It also affirmed earlier holdings giving deference to local choices regarding urban densities under the Growth Management Act (GMA).

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Cottage communities are gaining popularity across the country for those wanting less space and more convenience without losing access to a yard.  

Touted as anti-sprawl and as more sustainable than other forms of single family housing,  Seattle-based architect Ross Chapin has compared cottages to the Mini Cooper: “smart, sensual, well-engineered and reliable.”

Successful cottage developments in urban areas bode well for Growth Management because they represent a creative and usually attractive way to add density.  However, cottage housing developments built in the urban fringes, or in rural areas, could just as well be sprawl dressed in a new more stylish outfit.  

Even when housing is clustered at urban-like densities it may be placed in a neighborhood without easy access to goods and services, meaning its residents will  be as car-dependent as ever.  A Mini Cooper can’t be considered an economy car, and though cottages are smaller, they are not necessarily highly affordable.  Cottage housing ordinances often include specific design standards to make sure cottages are architecturally pleasing and high quality.  The extra design costs often outweigh savings gained through smaller lots or fewer building materials.  

We should expect to see the pocket neighborhood continue to be a popular choice for retiring boomers or small families looking for the coziness of an urban neighborhood.  However, building urban-scale housing does not automatically make an urban environment.

Kitsap’s population grew 8.3% over the past ten years placing it 11^th from the bottom in population growth rates among Washington’s 39 counties.  Perhaps the lack of population pressure contributed to Kitsap County’s decision to consider prohibiting Fully Contained Communities, as authorized by the Washington Growth Management Act.  

In concept, a Fully Contained Community (FCC) is a development incorporating urban-style housing, businesses, and jobs in a defined rural area.  In some cases, these communities may be constructed adjacent to (and subsequently incorporated into) an existing town or City, such as Snoqualmie Ridge, Issaquah Highlands  ,and the most recent Yarrow Bay project approved in Black Diamond.

The idea is that the urban impacts of the development will be prevented from spilling into the rural surroundings.  In some cases, starting from scratch with new planning and urban infrastructure may be more cost-effective than trying to retrofit the same growth within existing infill neighborhoods:  it’s sometimes easier to draw a pretty picture on a clean slate.

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FEMA, NOAA-National Marine Fisheries (NMFS), Puget Sound Partnership and other partnering organizations held a two day conference March 1st and 2nd in Edmonds in an effort to help local governments, technical consultants and other NGOs understand options for implementing the Biological Opinion ("BiOP") issued by NMFS in September 2008 regarding FEMA's implementation of the National Flood Insurance Program. 

Approximately 300 people attended the conference, during which representatives of FEMA, NMFS and several local governments rolled out the various process options for local governments to demonstrate compliance with the BiOp by the September 22, 2011 deadline.  In many instances, the conference raised more, or at least as many, questions as it answered,  particularly as federal officials attempt to explain how the BiOp does or does not fit with existing state and local regulations (e.g., the Shoreline Management Act and the Growth Management Act). 

Local governments continue to seek the most efficient means to integrate the BiOp provisions into their regulatory scheme.  At this point, it seems improbable that most local governments will meet the September 2011 deadline.  But property owners and project applicants should except local jurisdictions to step up their BiOp compliance efforts immediately by requiring more habitat assessments, increased mitigation, and in some cases even denying projects that just a few months ago would have survived environmental scrutiny. 

For more information regarding the processes that will be used by local governments over the next several months to implement the BiOp, or how that BiOp implementation may affect your property, feel free to contact me.

This month the Center for Clean Air Policy released a study Growing Wealthier: Smart Growth, Climate Change and Prosperity which argues that “smart growth” can lead to economic gains by the private sector, governments, and local citizens . “Smart growth” describes development that reduces suburban sprawl, makes efficient use of public utilities, and fosters mixed-use and dense development patterns.  Advocates aim to create communities where it is possible to walk or use alternative forms of transportation to meet daily needs.

Chuck Kooshian, principal author of the CCAP study, recently discussed these findings  citing that smart growth-related developments, such as light rail stations, compact residential developments, and mixed residential and retail developments, have led to localized increases in property values, compared to other areas of the same city where these investments were not made.  Beyond property value increases, Growing Wealthier also points to savings felt in smart growth by way of fuel costs and infrastructure costs, as well as increases in retail sales and tax revenues and induced private investment.  Each of these economic benefits were shown to result from land use planning that discouraged sprawl, and created walkable, well-connected, and mixed use urban environments.

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On Thursday, Ron Sims was back in Seattle to award HUD’s first Sustainable Communities Planning Grants.  The Puget Sound Regional Council was awarded a grant of $5 million and Thurston County Regional Planning Council was awarded a grant of $1.5 million. Congratulations!

The Sustainable Communities Planning Grant is part of the Sustainable Communities Initiative, a joint HUD/DOT/EPA effort aimed at improving regional planning efforts that integrate housing and transportation decisions, and increase the capacity to improve land use and zoning.  This Initiative is the first time the federal government has formally recognized the need to coordinate planning disciplines at a national level.  

It is surely no coincidence that Washington’s own Ron Sims has been involved in forming the Sustainable Communities Initiative.  Since 1990, Washington State has been planning under the Growth Management Act, which recognizes the intersection of multiple planning disciplines by requiring local comprehensive plans to include land use, housing, transportation, capital facilities, and utilities elements. 

A recent ballot measure in Florida is making national headlines and is raising the fundamental question of who should be entrusted with the authority to make land use planning decisions.  If adopted, the ballot measure would require local voter approval for comprehensive planning and zoning decisions.  It is a reaction to public displeasure with decisions of local governments in Florida and the perception that local jurisdictions made inappropriate land use and zoning decisions to facilitate development in the pursuit of increased tax revenue.  

The public outcry in Florida echoes many of the same issues that were debated in Washington twenty years ago when state voters faced the same fundamental question of who should have authority to make land use decisions.  In Washington in 1990, that debate did not have the populist overtones of the Florida ballot initiative and focused, instead, on whether local governments or state agencies should be entrusted with land use decisions. 

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