Washington's Growth Management Revolution Goes to Court
| Jurisdiction | Washington,United States |
| Citation | Vol. 23 No. 04 |
| Publication year | 1999 |
I. Introduction....................................................................6
II. Overview of GMA Substantive and Procedural Requirements.................................................................. 10
A. Substantive Requirements.............................................. 10
1. Urban Growth Areas................................................ 12
2. Concurrency............................................................ 17
3. Essential Public Facilities and Affordable Housing.... 19
4. Natural Resource Lands and Environmentally Critical Areas........................................................... 21
B. Procedural Requirements............................................... 24
1. Adoption of Countywide Planning Policies............... 25
2. Designation and Protective Regulations of Critical Areas and Natural Resource Lands........................... 25
3. Designation of Urban Growth Areas......................... 25
4. Adoption of Comprehensive Plans............................ 26
5. Adoption of Development Regulations..................... 29
III. GMA in the Courts......................................................... 29
A. Judicial Attitude Toward the GMA, In General............. 31
B. Obtaining Judicial Review of GMA Issues..................... 34
1. Standing................................................................... 38
2. Exhaustion of Administrative Remedies.................... 39
3. Timeliness............................................................... 42
4. Mootness................................................................. 43
5. Noncompliance v. "Invalidity": Effect on Vesting.... 44
6. Standards of Review................................................. 46
C. Constitutional Challenges.............................................. 47
D. Urban Growth and Rural Sprawl.................................... 48
E. Concurrency.................................................................. 55
F. Essential Public Facilities............................................... 55
G. Housing........................................................................ 56
H. Critical Areas................................................................ 56
I. Natural Resource Lands................................................. 58
J. Countywide Planning Policies........................................ 59
K. Comprehensive Plans and Development Regulations...... 62
L. The Legal Effect of GMA Goals.................................... 68
IV. Conclusion......................................................................69
I. Introduction
The environmental consciousness revolution of the 1970s was a dominant political force in Washington. Between 1970 and 1972, a sweeping array of innovative environmental regulatory programs became law.(fn1) For example, the Shoreline Management Act(fn2) established state-supervised local planning and regulatory requirements for the use and development of most of the state's bodies of water and their shorelines and immediate uplands. Furthermore, the State Environmental Policy Act(fn3) (SEPA), perhaps the nation's most potent "little NEPA," imposed a regime of environmental review on all state and local government actions with potentially adverse environmental consequences and conferred on all public agencies broad substantive authority to protect and enhance the natural and "built" environment. However, such progressive environmental regulatory laws operated as overlays on local land use planning and regulation, and attempts to reform(fn4) Washington's antiquated patchwork of land use legislation(fn5) failed. As a result, the state's environmentally-based land use regulatory laws rested on a faulty foundation.
Until the adoption of the Growth Management Act(fn6) (GMA) in 1990, local land use planning and regulation was optional and, if undertaken, was subject to modest state procedural standards and virtually no substantive requirements at all. Counties and cities, to the extent they chose to plan and regulate land use, were not obligated to coordinate or achieve consistency with the plans and regulations of neighboring jurisdictions. There was no requirement that facilities of regional importance be accommodated or that each locality allow for a fair share of the region's housing needs. With the exception of "shorelines," local government had no obligation to protect environmentally critical areas from the consequences of development. It was purely a matter of local option to allow land suited for commercial farming, forestry, or mining to be irreversibly converted to other uses. The state did not require cities and counties to coordinate the provision of public facilities with new development, or to plan for the concentration of urban development in limited areas so that public services and facilities could be efficiently provided.
The flawed foundation of Washington's environmental revolution began to crumble under the weight of burgeoning prosperity and rapid growth during the 1980s. The booming economy did what the advocates of environmental quality and good government had been unable to do. Abstract policy arguments for land use regulatory reform failed to sufficiently capture the interest of voters to gain the legislature's attention. However, the economic boom of the 1980s, by generating the worst traffic congestion in the west, escalating urban skylines, bulldozing farms, decimating forests, and turning sparkling salmon-bearing streams into storm sewers, converted hordes of formerly mild-mannered citizens into vocal activists. In 1988, these activists sponsored the successful Seattle Citizens Alternative Plan (CAP) initiative,(fn7) limiting the height and intensity of and setting annual quotas for new downtown office buildings. In 1989, they demanded state growth management legislation.
While the champions of radical new state growth management requirements for local governments were a powerful force, the defenders of the status quo were potent adversaries. Revolutionary battles were fought on many fronts, and the outcome was always in doubt.(fn8) The governor's office, legislators, legislative committees, the Growth Strategies Commission, and a plethora of interest groups skirmished during a period extending from the 1989 through 1991 legislative sessions, straddling a bitterly contested initiative campaign.(fn9) The Growth Management Act that somehow survived the fierce legislative gauntlet was enacted by the 1990 and 1991 legislatures in two installments, known at the time as GMA I(fn10) and GMA II.(fn11) Because the recommendations of the Growth Strategies commission were variously embraced, rejected, and ignored by the wrangling legislature, the GMA was not the finely-honed product of a law revision commission.(fn12) Both installments of the Act were riddled with politically necessary omissions, internal inconsistencies, and vague language,(fn13) sometimes consciously designed to defer the final reckoning to another day and, perhaps, another forum. Because the legislature declined to grant substantive rulemaking authority to GMA's "godparent" agency,(fn14) the meaning and effect of important and controversial elements of this revolutionary legislation were left to the three Growth Management Hearings Boards (Growth Boards) established by GMA II,(fn15) the courts, and future legislative amendments.
The Growth Boards now have interpreted, to some extent, the procedural and substantive requirements of the Act.(fn16) The legislature has amended the GMA every year since its enactment to modify or clarify its requirements, sometimes in reaction to Growth Board decisions. Courts generally have been last to enter the stage of Washington's growth management revolution, given their role in the review process. Aside from a few cases deciding whether local enactments implementing GMA requirements were subject to referendum(fn17) or initiative,(fn18) whether the GMA precluded municipal incorporation or annexation,(fn19) whether the GMA foreclosed certain interim regulations and moratoria,(fn20) whether approvals of development proposals violated the Act,(fn21) and whether challenged GMA provisions were constitutional,(fn22) the meaning and effect of GMA requirements generally have been adjudicated only after local GMA implementation measures have been adopted by a county or city and appealed to a Growth Board.(fn23) Given the time consumed by local GMA implementation processes, Growth Board appeals, trial court proceedings, and reported decisions of the Washington Court of Appeals and Supreme Court interpreting GMA provisions are recent phenomena.
The purpose of this Article is to analyze and explain court decisions in cases involving challenges to the GMA itself, Growth Board rulings on local compliance, and GMA constraints on specific projects. Special emphasis will be given to the relative degrees of judicial deference accorded to the decisions of local governments and Growth Boards, respectively. Because most GMA requirements are conceptual, not definitive, and often ambiguous, a...
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