Washington's Way: Dispersed Enforcement of Growth Management Controls and the Crucial Role of Ngos
| Jurisdiction | United States,Federal |
| Citation | Vol. 31 No. 01 |
| Publication year | 2007 |
[W]hen people were on the Oregon Trail, there was a sign in Oregon Cities: "Oregon is the End of the Oregon Trail," and all the people who could read stopped in Oregon and all who couldn't went to Washington.(fn1)
I. Introduction
While growth management laws might not be pervasive, many states have some form of legislative scheme to cope with the governmental and environmental impacts of urban sprawl,(fn2) a global phenomenon that has come to define twenty-first century cities.(fn3) These statewide strategies to limit the hyper-growth of cities vary in substance(fn4) and have had varying degrees of success. Large urban areas continue to struggle to prevent city populations from spilling into open space areas on their periphery and swallowing open space and farm land-both of which may have disastrous consequences for the environment, energy consumption, and the quality of urban life.(fn5)
Arguably, two of the most notable growth management laws created to address the problem of urban sprawl are those of Oregon and Washington. These two states have enacted contrasting statutory growth management frameworks, even though their environments are quite similar in terms of topography and ecology.(fn6) Both Oregon and Washington require certain counties and cities to engage in comprehensive planning; this planning is meant to encourage development within designated urban growth areas and to protect farmland, forests, and critical environmental areas.(fn7) However, Washington politicians created a dispersed/ "bottom up" approach to growth management as opposed to Oregon's hallmark strategy of a centralized/"top-down" approach.(fn8) More importantly, Oregon enacted a centralized, statewide plan with legislatively mandated enforcement from a single government entity, while Washington enacted a scheme in which enforcement of the Growth Management Act ("GMA") was left to non-governmental organizations ("NGOs") acting at the local level.
Moreover, Oregon requires all counties and cities to submit comprehensive plans to a state agency for "acknowledgment" before enacting corresponding development regulations,(fn9) while Washington's GMA requires only certain counties and cities to complete comprehensive plans before they may enact necessary development regulations.(fn10) The approval required for these plans and regulations is important because they are presumed valid until a constituent of the state petitions a state hearings board and the board rules against the local government.(fn11) Despite these contrasting enforcement methods, both the Washington and Oregon acts share similar goals of protecting open space, critical areas, and farm lands, as well as encouraging vibrant and more densely populated urban areas.(fn12) Thus, regardless of their differences, the Washington and Oregon schemes place the two states at the forefront of growth management in the United States,(fn13) making a discussion of their contrasts all the more important.
Though there is a valuable and extensive collection of literature on anti-sprawl efforts in both states, this Article examines Washington's Growth Management Act and the critical role that NGOs play in supporting the GMA. Specifically, this Article looks at Washington's GMA from three perspectives-legal, historical, and empirical-and proposes that NGOs are vital to the GMA's enforcement. Because NGOs are so critical to the enforcement of the GMA, the question of how the courts interpret the scope of authority of growth management hearing boards when deciding growth management cases becomes very important. A decrease in the authority of the hearing boards would restrict the NGO's ability to act as the trustees of the GMA and enforce the GMA's goals and requirements. Legal, historical, and empirical analyses are also central to an understanding of dispersed versus centralized growth management laws and the different enforcement powers given to GMA organizations.
Part II of this Article outlines Washington's approach to growth management, describing the differences between dispersed and centralized approaches to the enforcement of growth management laws, the structure and legislative background of Washington's GMA, and the organizations involved in enforcing the GMA. Part III provides an empirical analysis of the enforcement of the GMA over the last ten years, examining particular cases involving developers and the NGO Futurewise. Finally, Part IV concludes with a brief summary.
II. Washington's Dispersed Approach
Although this Article's primary audience is policy makers and lawyers who are familiar with the GMA, a brief description of Washington's law, relevant institutions, and the general theory behind the review, approval, and enforcement mechanisms of the GMA is necessary to aid both the primary audience and the general reader.(fn14) This general information provides the framework within which we can analyze whether the current GMA structure will ensure local legislative actions are compliant with the GMA. When discussing the general theories and institutions of the GMA, it is first important to define the terms "dispersed" and "centralized." Once these general definitions are understood, it is then necessary to specifically describe Washington's GMA structure, legislative history, and the organizations involved in its enforcement.
To understand the success of public policy groups in enforcing the GMA's goals and requirements, it is first helpful to understand precisely how dispersed and centralized approaches differ, and how these differences impact the enforcement of the GMA. In structuring a state-wide growth management law, there are nearly an infinite number of possibilities along the continuum of absolute state control to absolute local control. Consider the interplay of the law's goals, requirements, state agency rulemaking authority, the ability to appeal to administrative boards or state courts, deference given to local decisions, and various alternatives that could be dreamed up for different elements. This Article will begin with the absolutes. For the purposes of this Article, "absolute centralized" means a growth management approach where the state creates the local comprehensive plans and dictates what development regulations local governments shall adopt. By contrast, "absolute dispersed" refers to an approach where the state establishes broad goals, but local governments create their own comprehensive plans and development regulations with state guidance but no state oversight. Washington's GMA structure is characterized in this Article as dispersed because that characterization is descriptive of how the GMA is enforced.
In Washington, the duty to ensure that local legislative actions are compliant with the GMA falls upon members of the public who can establish standing as petitioners to quasi-adjudicative agencies called "growth management hearings boards."(fn15) Until a local legislative action is challenged through one of these hearing boards by a constituent, the local action is presumed compliant.(fn16) Private citizens or local governments have a sixty-day window to bring any such challenge before a hearings board.(fn17) Thereafter, the board must set a hearing date within ten days and make a decision regarding whether or not the local action complies with the GMA within 180 days of receiving a petition, subject to extensions.(fn18) Section 36.70A.280(2) of the Washington Administrative Procedure Act ("APA") defines the class of people who have standing to challenge local government decisions under the GMA. The definition is broad and includes:
Most petitioners use subsection (b) of the statute to gain standing based on participation in the matter for which review is sought. Public interest organizations also gain standing through this provision, either through their local members who have participated in council meetings and public hearings or through their letters and comments on comprehensive plans and amendments to local governments.
Before the hearings boards, the burden is on the petitioner to persuade the board that a local legislative action does not comply with the GMA.(fn20) In reviewing local actions, hearings boards apply the "clearly erroneous" standard of review.(fn21) If a petitioner establishes standing to bring a challenge before the board but receives an adverse decision, the petitioner can appeal the board's decision to the Washington State Superior Court at the county level within thirty days of the board's final order.(fn22)
In addition to orders from the hearings board, compliance with the GMA is assured through gubernatorial penalties.(fn23) If a...
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