USING THE GMA TO MANAGE GROWTH:

What you can do, what you can’t, and the risks of non-compliance

Washington cities Insurance AuthorityMICHAEL C. WALTER

Keating, Bucklin & McCormack, Inc., P.S.(206) 623-8861

mwalter@kmblawyers.com

Sammamish City HallOctober 17, 2017

OVERVIEW OF THE GMA Enacted in 1990; amended many times sinceKey Goal – effective city and county planning for

growth and environmental protection, etc.Currently 29 counties and cities in them required to

plan under GMA14 planning goals to guide comprehensive planning

and developmentProvides guidelines and mandates for counties/cities

to manage and coordinate development according to population projections.Accomplished through “comprehensive plans.”

BIG RULES FOR USING GMA TO MANAGE GROWTH

Follow the GMA – especially the 14 planning goals

Rely on hard data; don’t base on speculation or NIMBY complaints

Consult with and rely on staff Retain outside expert consultants

when needed Consult with King County and

adjoining cities Get input/assistance from DOC Consult with and rely on City

Attorney on legal issues Understand that the GMA is not a

license to stop growth or ban development

LEGISLATIVE DISCRETION TOIMPLEMENT GMA IS LIMITED

“[Local discretion is bounded, however, by the goals and requirements of the

GMA”King County v. CPSGMHB, 142 Wn.2d 543, 561 (2000)

“[d]eference is only given to policy choices that are consistent with the gals

and requirements of the GMA.”Thurston County v. WWGMHB, 148 Wn.2d 1, 14 (2002)

GMA REQUIREMENTS: BUILDABLE LANDS& HOUSING TARGETS

RCW 36.70A.115, provides: Comprehensive plans and development regulations must provide sufficient land capacity for development.

Baseline projections for what the City must plan for comes from the Office of Financial Management (OFM).

The City must ensure that, collectively, its comprehensive plan and development regulations provide sufficient capacity of land suitable for development within its jurisdiction to accommodate its allocated housing and employment growth.

E.g.: The 2016 King County Comprehensive Plan sets Housing Targets for Sammamish at:

(1) Net New Units>4,180; and (2) Potential Annexation Area Net New Units>350.

** These numbers are the minimum

CONCURRENCY & TRAFFIC Concurrency is one of the goals of the Growth Management Act. It refers

to the timely provision of public facilities and services relative to the demand for them.

The GMA gives special attention to concurrency for transportation. The GMA requires that transportation improvements or strategies to

accommodate development impacts need to be made concurrently with land development.

“Concurrent with the development” = any needed “improvements or strategies are in place at the time of development, or that a financial commitment is in place to complete the improvements or strategies within six years.” RCW 36.70A.070(6)(b).

Transportation is the only area of concurrency that allows denial of development if LOS standards cannot be met. BUT … City must have a program to correct existing deficiencies and bring existing

transportation facilities and services up to locally adopted standards, AND Developers cannot be required to pay for improvements to correct existing

deficiencies.

LEVELS OF SERVICE (LOS) Los = Level of Service Standards. WAC 365-196-840 (3)(c): “Counties and cities should set level of service to reflect

realistic expectations consistent with the achievement of growth aims. Setting levels of service too high could, under some regulatory strategies, result in no growth. As a deliberate policy, this would be contrary to the act.” [Emp. added.]

When selecting LOS and planning for capital services, the GMA requires; At a minimum, that an LOS be identified for the next 20 years for all capital facilities,

with an inventory of existing facilities and proposals for the locations of new facilities or expansion of existing ones.

A six-year plan that will finance the facilities.

Examples: If the City fails to plan for the actual pace of development it is seeing, then it will be in

violation of the GMA. If the City did fail to plan and/or attempted to halt development within City limits, greater

rural sprawl could result in the same traffic problems, except that the City’s infrastructure would be inadequate and the newcomers would not be taxpayers.

Slowing development will not affect the demand for housing and other governmental services. Instead, it will cause home prices to rise and services to fail.

CAN YOU USE GMA TO STOP ALL DEVELOPMENT?

Short answer: NO. Why not? The law:

Potential Takings/Inverse Condemnation claimsU.S. Const., Fifth. AmendmentArt. I, Sec. 16, WA. State constitution

“[t]he basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees fit.”

W. Main Assocs. v. City of Bellevue, 106 Wash. 2d 47, 50, 1986)

“’Property in a thing consists not merely in its ownership and possession but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.’ ”

Mfgr’d. Housing. Communities of WA v. State, 142 Wash. 2d 347, 36 (2000).

CAN YOU USE GMA TO STOP ALL DEVELOPMENT?

Short answer: NO. Why not? The GMA: Nothing in the GMA authorizes this. The GMA does not

authorize blanket prohibition on “growth”; instead – manageand control growth (slow, limit, focus, growth)

The primary goals of the GMA are to “manage” growth, and to work with the county and adjoining communities to meet all of the GMA planning goals.

Eg.: The GMA requires protection of property rights: “Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions.” RCW 6.70A..020(6)

See also: RCW 36.70A.020(1), (2), (4),(5).

RISKS IN IGNORING OR VIOLATING THE GMA

“A danger foreseen is

half avoided.”

-- English proverb

RISKS OF NON-COMPLIANCE Sanctions under RCW 36.70A.345. If all or part of CP

or DA found invalid: Loss of state funding – thus loss of $$$ for City services City allotments in appropriation levels reduced Losing all or parts of revenues to which the city is entitled

under (a) the motor vehicle fuel tax, (b) the transportation improvement account, (c) the rural arterial trust account, (d) the sales and use tax, (e) the liquor profit tax, and (f) the liquor excise tax

Rescinding the city’s authority to collect the real estate excise tax under RCW 82.46.030

Ineligibility for Public Works Funds (RCW43.155.070(2))

RISKS OF NON-COMPLIANCE, con’t.

Ineligibility for Grants or Loans for Water Pollution Control Facilities per RCW 70.146.070(2)

Drain on City budget and funding for other important services Attorney costs and drain on CA resources Drain on staff time, resources, priorities, etc. Loss of public confidence in decision-making and governance Make bad law for other WA cities and counties Potential damage claims against City (when coupled with other

illegal or arbitrary and capricious acts); Potential Takings claims (if DAs deny all economically viable use of private property)

Bad PR for City

DEALING WITH NO-GROWTH GROUPS Educate citizens on GMA, City’s goals and comp. plan, etc. Explain risks to City – and to citizens – of non-compliance with GMA

goals, mandates Invalidation of city action Loss of state funding – thus loss of $$$ for City services Drain on City budget and funding for other important services Impact to staff and CA time, resources, priorities, etc. Make bad law for other WA cities and counties Bad PR for City

Explain – GMA not a license to prohibit growth, stop development, or prohibit large or controversial projects

Seek input from citizens and stakeholders; then have staff and consultants review and evaluate for GMA compliance

Seek input and training from DOC – its free!

TOOLS, TECHNIQUES & TIPS TO MANAGE GROWTH

The GMA has a range of tools, techniques and

options to lawfully manage and control

growth.

TALK WITH YOUR PLANNERS AND

TRAFFIC EXPERTS!

Tools, con’t.: FOLLOW EXPERTSUtilize to the fullest extent your in house

experts:PlannersTraffic engineersEconomistsPublic worksGeneral engineering staffCity attorney

Retain and listen to outside (hired) consultantsListen to experts hired by others

Tools, con’t.: ASSISTANCE FROM DOC DOC has a division dedicated to GMA: Growth Management

Services (GMS). Assist and guide local governments, state agencies, and

others to manage growth and development DOC offers: Direct Assistance Grants Training and Education Guidebooks Review of counties and cities proposed GMA implementation

actions Most are free!

DOC will send representatives to speak at Council meetings.

Tools, con’t.: ACCURATE DATAGet and rely on accurate data for, e.g.:Population forecastsEmploymentBuildable landsTraffic flows, counts, demand, etc.Development

No speculation, conjecture or guesswork data if good, hard data from professionals is available.

Tools, con’t.: IMPACT FEES GMA authorizes several types:

See, e.g., RCW 82.02.050 - .110 and WAC 365-196-850 Public streets and roads Publicly owned parks Open space, and recreation facilities School facilities Fire protection facilities.

Only for “system improvements” Public capital facilities in a local government’s capital facilities plan that are

designed to provide service to the community at large (not private facilities), that are reasonably related to the new development, and will benefit the new development (WAC 365-196-850)

Cannot exceed the proportionate share of the cost of the system improvements created by the payee (owner/applicant)

Can’t duplicate fees imposed under SEPA or other fee source Have reviewed by CA before adopting

Tools, con’t.: MORATORIA If done properly, a lawful method of putting a temporary hold on acceptance of

L.U. permits to allow for thoughtful planning and code amendments Sources of law:

RCW 35A.63.220 (Code city authorization) RCW 36.70A390 (GMA authorization) Case law (court decisions)

Duration: 6 months (with limited 6-month renewals, with findings) Alternative: 1 year with adopted “work plan” NO “rolling” or ongoing successive moratoria

Adoption and form: No notice of adoption required; BUT must do findings later Can do as emergency (with findings) Ordinance (preferred) or resolution

Findings required: Required w/in 60 days of adoption, at public hearing Must be real evidence, real data. No speculation

Not a stall technique! Must be working to remedy problem.

Tools, con’t.: OTHER IDEASContract rezones (get limits and mitigation

built-in)PUDs, PRDs, PDDs flexible zoning and lot configuration; limit density to specific

areas, etc.

Create sub-areas for development Concentrate growth where services exist or better LOS, etc.

Development AgreementsUnique financing programsOther ideas? Talk to staff, other experts, DOC

LIMITS ON MANAGING GROWTH PER THE GMA

“Unfortunately, it is now common that

litigation often follows actions by local governments

relating to land use.”

-- Futurewise, et. al. v. W.W.G.M.H.B., et. al., 164 Wn. 3d 242 (2008)

Limits: REZONES Can’t be used to spot zone (unlawful) Must be based on actual evidence of either changed circumstances or

changed public need, OR must implement policies of the comprehensive plan Rezones contrary to comprehensive plan are spot zones and are illegal.

Parkridge v. Seattle, 89 W.2d 454 (1978) Cannot be based on desires of public or citizen interest groups; No

NIMBY basis Cannot be based on need to stop growth Must still allow reasonable use of property; can’t deny all economically

viable use of property BOP on a downzone against the wishes of owner is higher than the BOP

on a property owner who requests a downzone Hayden v. Pt. Townsend, 93 W.2d 870 (1980), overruled on other grounds,

SAVE v. Seattle, 101 W.2d 288 (1984) Can only do one time/year

Limits, con’t.: VESTED RIGHTSVR =valuable property rights, protected by the

ConstitutionWA has strictest vesting rules in U.S.Efforts to manage growth must protect vested

rightsVested rights apply to:Building permitsSubdivisionsShort platsDevelopment agreements

SOME QUESTIONS & ANSWERS

THE GMA MAY NOT HAVE ALL OF THE ANSWERS; BUT BETWEEN YOUR

STAFF, OUTSIDE CONSULTING EXPERTS, ADVICE FROM THE DOC,

AND COORDINATION WITH NEIGHBORING JURISDICTIONS, YOU

CAN FIND THE ANSWER

Q: The City should tell the state/county that we won’t acceptany more growth via our housing targets

Direct violation of the GMA and County’s comprehensive plan. This would also likely violate the City’s own comprehensive plan if

it incorporated the housing targets. The City’s Comprehensive Plan states: “Based on the

assumptions described in the Land Use Element, the City has development capacity to meet the adopted 2035 targets of 4,640 houses and 2,088 jobs.”

Paul Stickney and Richard Birgh v. City of Sammamish, GMHB, No. 16-3-0017 (2015): GMHB invalidated City ordinance that failed to plan for the City’s allocated affordable housing stock. Ordinance O2015-396 noncompliant with RCW 36.70A.070(2) --

failed to establish any numeric or percentage goals for the City’s “share” of countywide needs in the moderate, low, and very low income housing categories.

Q: The city should set its zoning so that we have no new housing capacity via buildable lands

Likely violation of GMA and several planning goals.WAC 365-196-315(2)(a): King County and the cities

within it are required to establish and maintain a buildable lands program. The program is “is intended to determine if urban densities are being achieved within urban growth areas by comparing local planning goals and assumptions with actual development and determining if actual development is consistent with the comprehensive plan.”

If the City took this action, likely invalidated by the GMHB.

Q: Once we’ve used up our buildable lands, the city is done with growth

Also likely violation of GMA.Whatever direction the City receives from the County’s

comprehensive plan via growth targets and the OFM must be planned for. This could mean anything from increasing density to up-

zoning. Comprehensive plans are intended to foresee 20-years

out. If the City unilaterally stops cooperating with County,

making its plan inconsistent with the County’s, action would be invalidated by the GMHB.

Q: The City should ignore the state requirements and the GMA; they won’t do anything to us

Not true! DOC will take action if out of compliance.See risks in Section IV (pp. 4-5) of GMA paper.Likely scenario: Whatever action or inaction the City

takes in violation of GMA or ignoring GMA mandates will result in a lawsuit before the GMHB, a loss for the City, large expenses, and invalidation of City action.

E.g.: Impacts to Chelan County in 1996. County refused to comply with GMA regulations--Governor imposed deadlines for compliance or sanctions would be imposed: e.g., withholding portions of revenue from the motor vehicle fuel tax

Q: Sammamish has special circumstances so that we shouldn’t have to comply with the GMA

Not true, and not the law.Every city can make the same claim.GMA and its requirements are the law. There

is no basis to ignore the GMA or its mandates.Nothing in GMA gives a city an “out” for non-

compliance based on special or unique circumstances.

GMA presumes that cities will take unique city attributes into account when planning, etc.

Q: Is the lack of transportation provided by the school districts to the City’s many schools a factor in the traffic problems?

Complicated question requiring evaluation of City and County and School district planning documents, and reliance on transportation data and experts

Consult with planning, engineering and/or traffic engineering staff.

Use outside consultants, if necessarySeek consultation/training by DOCBefore taking action, review by CA

Q: Can the City give financial assistance to provide transportation to schools for more students? Other solutions?

Also a complicated question requiring evaluation of City and School district financing and planning documents, reliance on traffic data, etc.

Giving financial assistance to provide for school transportation, does not appear to conflict with GMA; but no specific example of this readily available.

Consult with planning, engineering and/or traffic engineering staff; outside consultants, if necessary.

Seek consultation from DOCBefore taking action, review by CA

RESOURCES Washington State Department of Commercewww.commerce.wa.gov

Planning Association of Washington (PAW)www.info@PlanningPaw.org

American Planning Association (APA), Washington Chapteroffice@Washington.apa.org

Municipal Research Services Center (MRSC)www.mrsc.org

THANK YOU !Washington Cities

Insurance Authority (WCIA)

&Michael C. Walter

Keating, Bucklin & McCormack, Inc., P.S.

(206) 623-8861mwalter@kbmlawyers.com