The Growth Management Revolution in Washington: Past, Present, and Future

• Jurisdiction: Washington,United States
• Citation: Vol. 16 No. 03
• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 3SPRING 1993

ARTICLES

The Growth Management Revolution in Washington: Past, Present, and Future

Richard L. Settle(fn*)

Charles G. Gavigan(fn**)

I. Introduction

"Growth management" is a common description of the emerging era of land use regulation in the United States.(fn1) While only a minority of American communities have entered the new age, with(fn2) or without state compulsion,(fn3) the growth management trend is clear. "Growth management" generally describes quite sweeping reform of public policies concerning the regulation of private land development, the provision of public facilities and services, the protection of areas of special environmental value or vulnerability, and the allocation of the benefits and burdens of urbanization throughout extra-local regions.(fn4)

Until recently, public policy concerning private land development generally was limited to what was developed where within a local government's territory.(fn5) Traditional zoning, with or without usually half-hearted comprehensive plans,(fn6) focused narrowly on whether given uses and improvements of sites would be compatible with their immediate surroundings, largely ignoring the temporal dimension of private development and public facility adequacy, environmental quality, and regional fairness.(fn7) Even such narrow planning and zoning has been optional for local governments in Washington.(fn8)

The inadequacy of Washington's patchwork state legislation governing local land use regulation(fn9) has been decried by professional commentators(fn10) and law revision commissions(fn11) for the last two decades. However, altruism and rational discourse alone rarely induce major land use regulatory reform. The nation's first comprehensive zoning ordinance, long advocated by social reformers, was enacted because of the political clout of New York carriage-trade merchants fearful of the invading garment industry.(fn12) Washington's Shoreline Management Act(fn13) probably would not have been adopted through the tireless efforts of the Washington Environmental Council alone. But when business and labor interests scrambled to cut their potential losses as a result of the Washington Supreme Court's landmark "Lake Chelan" decision,(fn14) comprehensive shoreline regulation became inevitable.(fn15) In the early 1970s, the legislature nearly adopted a comprehensive state-supervised land use regulatory system, not only because the distinguished legal reformers of the American Law Institute had proposed the Model Land Development Code, but also because Congress was on the verge of enacting a bill containing large subsidies for states with such legislation.(fn16) When the middle-east oil embargo diverted public attention and the expected federal subsidy vanished, so did the state legislature's interest in land use regulatory reform.

Since near misses nearly twenty years ago, comprehensive reform of Washington land use regulatory legislation has been simmering on the back burner. In 1989, the pot began to boil. Central Puget Sound area motorists fumed in "gridlock" traffic. They denounced dense, downtown development,(fn17) fretted over soaring housing prices, and lamented the loss of forests, farms, and salmon-spawning streams.(fn18) Thus, the growth management revolution was fomented not by the poor and downtrodden, nor by academic theorists, but by the middle-class suburban masses who sensed escalating degradation of community, environment, and quality of life. They demanded change. The revolutionary battles were fought on many fronts, and the outcome was always in doubt. The Governor's office, diverse elements of the legislature, the Growth Strategies Commission, and all relevant interest groups skirmished during a period extending from the 1989 through the 1991 legislative sessions, straddling a bitterly fought initiative campaign.(fn19) The resulting Growth Management Act ("GMA") was enacted by the 1990 and 1991 legislatures in two hotly contested installments known respectively as "GMA I"(fn20) and "GMA II."(fn21)

GMA I and GMA II, shaped or deformed as they were by last-gasp political compromises, contain unresolved internal inconsistencies, politically necessary vague language, and significant gaps. Consequently, while the general concepts of the GMA are understandable in the abstract, there is much uncertainty about what they will mean in practice. Whether and when such uncertainty will be resolved by additional legislation, Department of Community Development (DCD) guidance, rulings of the new Growth Planning Hearings Boards, and interpretations by the courts remain to be seen.

Accordingly, the purpose of this Article is to trace the complex history of the GMA, analyze the Act's major features, and identify unresolved issues in Washington's growth management revolution.

II. A Preliminary Overview of the GMA

With few exceptions, the new requirements and authority established by the GMA do not apply statewide. If a county is subject to the GMA, so are all of the cities within it.(fn22) Counties are governed by the GMA either by choice or because they exceeded specified population and rate of growth thresholds.(fn23) By choice or mandate, twenty-nine of the state's thirty-nine counties and the cities within them now are governed by the GMA.(fn24) Once a county is in the GMA, there is no way out under the present legislation.(fn25)

The central and most controversial policy of the GMA is to concentrate new development in compact urban growth areas contiguous with presently urbanized areas.(fn26) For two reasons the GMA rejects the sprawling development patterns that have proliferated since World War II. First, by minimizing the area devoted to development, land with environmentally critical qualities and commercially valuable natural resources can be protected and preserved.(fn27) Second, by concentrating development in contiguous areas, public facilities may be provided more efficiently and with less environmental harm.(fn28)

GMA counties and cities are required to adopt comprehensive plans within statutory deadlines.(fn29) GMA plans must meet rigorous specifications, especially for public transportation facilities.(fn30) The pivotal elements of the plans are (1) delineation of urban growth areas in which virtually all of the county's projected twenty-year population increase is to be accommodated at relatively high density(fn31) and (2) determination of the timing, location, funding, and requisite levels of service of adequate transportation and other public facilities to serve new development.(fn32) Contrary to prior law,(fn33) GMA plans must be (1) internally consistent,(fn34) (2) coordinated and consistent with the plans of adjacent counties and cities in a region,(fn35) and (3) implemented by development regulations that are consistent with those plans.(fn36)

GMA development regulations, which include but are not limited to zoning, subdivision, site plan review, planned unit development, natural resource, and critical area regulations, must be in place by the deadline for adopting comprehensive plans, unless a six month extension is obtained.(fn37) Most significantly, development regulations must protect three categories of natural resource lands(fn38) and five categories of environmentally critical areas(fn39) and must prohibit development if adequate transportation, potable water and, arguably, other public facilities would not be concurrently available.(fn40)

GMA plans and regulations are legally effective upon adoption without state or regional approval.(fn41) However, the state, another GMA county or city, or aggrieved persons may appeal to a state Growth Planning Hearings Board for administrative adjudication of whether challenged provisions of comprehensive plans and development regulations comply with GMA requirements.(fn42) Where the Board finds noncompliance, the Governor may impose sanctions.(fn43)

While subject to many new requirements, GMA counties and cities also are beneficiaries of significant new or clarified authority. The GMA authorizes impact fees to defray the cost of public facilities necessitated by new development;(fn44) innovative regulatory techniques, including transferable development rights, density transfer, incentive or bonus regulation, cluster housing, and planned unit developments;(fn45) and an additional increment of real estate excise tax to fund new capital facilities.(fn46)

Several GMA requirements apply to non-GMA counties and cities: their development regulations must be consistent with any adopted comprehensive plans;(fn47) they must designate and protectively regulate critical areas; and they must designate, but need not regulate, natural resource lands.(fn48) GMA and non-GMA local governments may not approve subdivisions and short subdivisions without adequate public facilities(fn49) or building permits without adequate potable water supplies.(fn50)

III. The Past

A. Washington's Anachronistic Land Use Legislation

In no other state was the revolution in environmental consciousness and commitment more evident. Between 1970 and 1972, Governor Daniel J. Evans proposed, and the Washington State Legislature enacted, a sweeping array of groundbreaking environmental legislation.(fn51) For example, the Shoreline Management Act(fn52) established comprehensive...