Between Scylla and Charybdis: Growth Management Act Implementation That Avoids Takings and Substantive Due Process Limitations

• Publication year: 1993
• Citation: Vol. 16 No. 03

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

Between Scylla and Charybdis: Growth Management Act Implementation That Avoids Takings and Substantive Due Process Limitations(fn1)

Jeffrey M. Eustis (fn*)

The State of Washington recently joined the select group of states that have adopted statewide standards for land use planning.(fn2) Statewide land use planning arrived in Washington through two recently adopted laws: the Growth Management Act of 1990 and the Growth Strategies Act of 1991 (GMA).(fn3) These laws mark a significant change in land use regulation in the State of Washington. Formerly, local governments remained almost exclusively responsible for land use regulation. The planning enabling laws for cities(fn4) and for counties(fn5) give skeletal guidance for land use planning. And, except for the requirement that comprehensive land use plans include land use and transportation elements,(fn6) these planning statutes are largely content and value neutral. They therefore provide scant direction to guide the locally adopted plans and regulations.(fn7)

Thus, perhaps the most profound change brought about by the GMA is its articulation of statewide planning goals and its prescription that land use planning accomplish ain minimum objectives.(fn8) Among these minimum objectives are requirements that ain critical areas (such as wetlands) be protected,(fn9) that agriculture, forest, and mineral resource lands be conserved,(fn10) that urban growth be directed to urban growth areas,(fn11) that public facilities be adequate to serve development at the time that development is available for occupancy,(fn12) and that local governments have the authority to impose development impact fees to fund ain designated facilities and services.(fn13)

When implemented by way of local plans and regulations, these basic objectives will affect the use of private lands in at least three ways. First, they will reduce the intensity of development in critical areas and resource lands. Second, they will potentially delay development in areas that lie beyond urban growth areas or that cannot be concurrently served with public facilities and services. Finally, development within urban areas will become more costly as municipalities are given the authority to impose a portion of the costs of furnishing public facilities and services on the landowner. The GMA thus marks a transformation in how future growth is to be planned for and where it is to go. This transformation, in turn, imposes additional burdens on landowners and affects what an individual landowner is able to do with her land.

This type of regulation in land use has been met with a backlash of legal challenges. In recent years, many of these challenges have been favorably received by the courts. A series of recent decisions by the United States Supreme Court and the Washington State Supreme Court indicate that land use restrictions will be much more closely scrutinized under both the Takings Clause and substantive due process doctrine.(fn14) The challenge presented to local governments is the implementation of effective growth management legislation that will survive this heightened scrutiny. The unain future implementation of growth management will largely be decided through administrative and judicial decisions and tested under takings and substantive due process case law.

Thus, in formulating growth management legislation to meet continually evolving standards, local planners and lawmakers find themselves confronting perils every bit as treacherous as those faced by Ulysses. On the one hand is the risk that courts may find highly protective legislation to "go too far" under takings jurisprudence or to be "unduly oppressive" under substantive due process. On the other hand, lawmakers could attempt to steer clear of judicial challenges by enacting weak legislation that does little to accomplish the objectives of growth management. Either course would frustrate the implementation of the GMA.

This Article takes the position that no reason exists for local legislation implementing the GMA to necessarily run afoul of these twin perils. But, to steer a safe course, local decision-makers must pay close attention to the standards imposed by recent court decisions. Specifically, they must closely tailor their plans and development regulations to the objectives of the GMA and to the impacts it seeks to alleviate; they should provide procedural protections that avoid harsh results; and they should enact their plans and regulations in a well-documented process. The purpose of this Article is to provide a background in takings and substantive due process law to enable local governments to accomplish this task.

An analysis of the extent to which legislation implementing GMA objectives will run afoul of the takings and substantive due process limitations carries its own inherent limitations. First, only interim designations and protections for critical areas and resource lands have been adopted to date.(fn15) For the twenty-six counties and one hundred eighty-one cities that are planning under the GMA, the original deadline for comprehensive plan adoption was July 1, 1993,(fn16) and the deadline for adoption of development regulations implementing comprehensive plans was July 1, 1994.(fn17) During the 1993 session, the legislature extended these deadlines by one year for the adoption of comprehensive plans and an additional six months, upon request, for the adoption of development regulation.(fn18) Consequently, for the most part, the legislation implementing the GMA has yet to be adopted.

The second limiting factor is that the holdings in takings cases turn principally on the facts of each case. To compound this limitation, case law in this area is in a state of flux. Consequently, the issue of whether future growth management legislation will exceed constitutional limits as defined by future courts involves a high degree of speculation.

This Article begins with an overview of the GMA. It then proceeds with a summary of recent case law under the Takings Clause and substantive due process doctrine. After laying this groundwork, this Article focuses on four particular areas of growth management control and explores how local legislation implementing these areas of control would be analyzed under the Takings Clause and substantive due process. These four areas of land use regulation include: critical area protections, resource land designations, development phasing requirements for concurrency and urban growth areas, and impact fees for public facilities and services. This Article then concludes with several brief observations as to measures that may be taken to protect growth management legislation from takings and substantive due process challenges.

I. The Growth Management Act

A. Background

The Washington State Legislature enacted the GMA in 1990 in response to the growth pains of the 1980s: traffic congestion, school overcrowding, urban sprawl, and loss of rural lands.(fn19) These conditions inspired evocative photographs of endless lines of cars and of subdivisions and shopping centers rolling up against rural lands. The GMA was also enacted in part to respond to a far more ambitious citizen's growth management initiative, Initiative 547.(fn20)

In enacting the GMA, the legislature borrowed heavily from growth management measures enacted in other states. For example, the urban growth areas concept largely came from the urban growth boundary requirement of Oregon's Comprehensive Land Use Planning Coordination Act of 1973,(fn21) and the transportation concurrency requirement came from Florida's Local Government Comprehensive Planning and Land Development Regulation Act of 1986.(fn22) In other respects, the GMA contains features that are unique to Washington. In keeping with the state's tradition of strong local control, the GMA allows for considerable local variation and prescribes a rather limited role for the state oversight agency, the Department of Community Development (DCD).(fn23) In contrast, the Oregon and Florida laws provide for a much stronger state role. Consequently, the GMA is often characterized as a "bottoms up" approach.(fn24)

B. An Overview of the Act

The GMA is lengthy and comprehensive.(fn25) It has also been amended in each of the legislative sessions following its enactment in 1990.(fn26) Because a full analysis of the GMA is beyond the scope of this Article, only its principal requirements will be summarized here. The changes brought about by the GMA can be summarized under the following nine points.

First, the GMA established thirteen statewide goals that are to be the core of regional and local planning.(fn27) These goals are to be "used exclusively for the purpose of guiding the development of comprehesive plans and development regulations."(fn28) Among these goals are requirements that urban growth be directed to established urban areas, that resource lands for timber and agriculture be protected, and that transportation and other public facilities and services be adequate to serve the needs of development.(fn29)

Second, the GMA mandates comprehensive planning for the state's most rapidly growing counties and for all cities lying within those counties.(fn30) Other counties and cities are permitted to opt in.(fn31) Although the GMA originally applied...