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PC Agenda Packet 2019-06-12
AGENDA PLANNING COMMISSION 321 East Fifth Street June 12, 2019 6:00 p.m. I. CALL TO ORDER & ROLL CALL II. PUBLIC COMMENT (Items not subject to Public Hearing) III. APPROVAL OF MINUTES IV. WORK SESSION 1. Enabling statutes and Land Use controls in Washington i. Growth Management Act ii. State Environmental Policy Act iii. Shoreline Management Act iv. Stormwater Regulation v. Significant Court Cases V. STAFF UPDATES VI. REPORTS OF COMMISSION MEMBERS / ADJOURNMENT MINUTES PLANNING COMMISSION City Council Chambers Port Angeles, Washington 98362 May 22, 2019 6:00 p.m. REGULAR MEETING PLEDGE OF ALLEGIANCE Chair Stanley opened the regular meeting at 6:05 p.m. ROLL CALL Commissioners Present: Mel Messineo, Pamela Hastings, Duane Morris, Ben Stanley (Chair), Andrew Schwab, Tara Lopez City Staff Present: David Wechner (Interim Director of Community and Economic Development) Ben Braudrick (Assistant Planner) Public Present: Khahn Lam, Brandon Meyer, John Ralston PUBLIC COMMENTS: None APPROVAL OF MINUTES: Commissioner Schwab moved to accept the minutes from the regular May 8th meeting. Commissioner Messineo seconded. Chair Stanley called for a vote. All were in approval. ACTION ITEMS Chair Stanley moved the Façade Grant Action Items ahead of the Continued Public Hearing for PZ 19-32. 1. Façade Grant 19-07 (Pho Saigon 106 W Front St) Assistant Planner Ben Braudrick presented the Staff Report for Façade Grant 19-07. Chair Stanley asked the Commission if they had any questions for staff. Commissioners asked several questions about the project and the façade and sign grant program. Planner Braudrick provided a broad description of the project as a whole and a synopsis of the differences between sign and façade grant maximums. The applicant provided further details about the project in its entirety. Commissioners asked the applicant questions about the proposal and the façade development as a whole. Commissioner Hastings made a motion to approve Façade Grant 19-07 citing 7 Findings, 3 Conclusions, and 6 Conditions in the Staff Report. Commissioner Schwab seconded the motion, all were in approval. 2. Discussion of Planning Commission Work Sessions Assistant Planner Ben Braudrick presented the Staff Memo for a proposal to begin regular Planning Commission work sessions and a biennial workplan. Planning Commission Minutes May 22, 2019 Page 2 Discussion followed and Commissioners identified their interests and possible scheduling. Staff provided some direction on timing and the length of time some of the topics would take. Staff recommended scheduling only the first meeting of the month with the additional meetings be scheduled as needed. Commissioner Hastings made a motion to schedule the June 12th, July 10th and August 14th meetings for hearings as needed and work sessions and allowing additional meetings as needed. Commissioner Lopez seconded, all were in approval. Discussion about work session scheduling continued. The Commission agreed to have the Chair sit down staff to provide a schedule for the following months. STAFF UPDATES Planner Braudrick provided information on the presentation he made to City Council on the 21st concerning the 2019 Comprehensive Plan Amendment. Interim Director Wechner provided the Commission with an update of active projects that staff is currently working on. REPORTS OF COMMISSION MEMBERS Chair Stanley provide a report on his public comment on the Comprehensive Plan Amendment. Commissioner Morris noted that he may not be available for the July 10 meeting due to return from an overseas trip. ADJOURNMENT The meeting adjourned at 7:20 p.m. Ben Braudrick, Secretary Ben Stanley, Chair PREPARED BY: Ben Braudrick Secretary Revised Code of Washington Growth Management Act Boundaries and Plats Shoreline Management Act State Environmental Policy Act 36.70a RCW (1990) Title 58 RCW 90.58 RCW (1970) 43.21C RCW (1971) Washington Administrative Code WAC 197-11 (SEPA Rules) WAC 173-22/26/27 (Shorelines) WAC 173-158 (Flood Plain Mgmt.) WAC 173-220 (NPDES) WAC 51-50 (Building Code) Port Angeles Plans Comprehensive Plan Capital Facilities Plan Shoreline Master Program Strategic Plan Port Angeles Municipal Code Title 2 Hearings Examiner / Planning Commission Title 11 Streets and Sidewalks Title 13 Public Utilities Title 14 Buildings and Construction Title 15 Environment Title 16 Subdivision Title 17 Zoning Title 18 Growth Management 6t4t2019 Washington State Legislature passes new Planning Enabling Act on March 9, 1959. - HistoryLink.org Washington State Legislature passes new Planning Enabling Act on March 9, 1959. By Kit Oldham Posted 5/0212006 H istoryLi nk.or g Essay 7 7 41 n March 9,1959, the state Legislature approves a new Planning Enabling Act that provides additional authority and procedures for counties to regulate land development. The Act is drafted by legislators and King County planning officials in cooperation with associations representing counties, cities, and professional planners. It is intended to correct perceived deficiencies in older planning legislation and to allow and encourage more effective land use planning. The law is inspired in part by a local court decision that King County's planning and zoning efforts had not followed the procedures of the earlier legislation. The concept of zoning, in which a local government divides its territory into districts and specifies the types of use, size of structures, and features allowed within each district, originated in the early twentieth century. The first Washington law to expressly authorize land-use planning and imposition of zoning controls was the Planning Commissions Act, which the Legislature passed in 1935. King County reorganized its Planning Commission (which had existed as an advisory group since 1926) under this law and in 1937 enacted its first zoning resolution. Correcting Deficiencies All of King County's zoningefforts were called into doubt in |uly 1958, when Superior Court |udge Malcolm Douglas ruled that the County had not followed the procedures of the Planning Commissions Act. Although it could have appealed (the state Supreme Court later rejected a similar challenge to Seattle zoning), the County speedily -- within three weeks of the ruling -- adopted a new comprehensive zoning plan and zoning code, following the correct procedures. At the same time, the King County Planning Commission had hired Gordon Whitnall as an outside Planning Consultant to review and recommend changes in its planning procedures. In his analysis, Whitnall not only recommended changes in local regulations and procedures, but also "indicated that some basic legislative deficiencies needed correcting to assure effective planning" (Progress Report 1958-1959). p>Whitnall and the County Planning Commission, planning staff, and Board of County Commissioners worked with state legislators and the Washington Association of County Commissioners, the Association of hitps ://www.historyli nk.org/File/774 1 1t3 61412019 Washington State Legislature passes new Planning Enabling Act on March 9, 1959. - HistoryLink.org Washington Cities, and the Pacific Northwest American Institute of Planners to draft a new state Planning Enabling Act. The Act provided an alternative to the earlier Planning Commissions Act as authority fbr counties to conduct planning and implement zoning controls. (The Legislature amended the original draft so that as passed the Act applied only to counties and not cities or towns.) The Planning Enabling Act For the first time, the new Planning Enabling Act provided an option for counties to establish a Planning Department, in addition to a Planning Commission, to carry out planning and zoning activities. It also called for creation of a Board of Adjustment to consider applications for zoning permits. The Act also defined, and established specific requirements for, both "comprehensive plans" (policies adopted to coordinate planning for land-use development and to guide the drafting of specific regulatory controls) and "official controls" (zoning regulations and maps showing where they appl¡ land subdivision regulations, and similar measures that directly control land development). Comprehensive plans were required to contain both a "land use element" showing where different types ancl intensities of uses would be allowed, and a "circulation element" showing major transportati<ln routes. The state Senate and House of Representatives both gave final approval to the Planning Enabling Act on March 9,L959. Governor Albert D. Rosellini (1910-201I) signed the measure into law on March 19. In |uly, shortly after the new law went into effect, the King County Commissioners brought the County under the Act by creating a Board of Adjustment and a Planning Department that soon set to work preparing a new comprehensive plan. https ://www. h i slorylink.or g I F il e 17 7 4 1 2t3 6/11/2019 MRSC - Growth Management Act mrsc.org/Home/Explore-Topics/Planning/General-Planning-and-Growth-Management/Comprehensive-Planning-Growth-Management.aspx 1/5 GMA Goals (RCW 36.70A.020) Concentrated urban growth Sprawl reduction Regional transportation Affordable housing Economic development Property rights Permit processing Natural resource industries Open space and recreation Environmental protection Early and continuous public participation Public facilities and services Historic preservation Shoreline management (RCW 36.70A.480) Growth Management Act This page provides an overview of the Growth Management Act (GMA) in Washington State, including its legal requirements and links to related MRSC pages and other helpful resources. Overview The Growth Management Act (GMA) is a series of state statutes, first adopted in 1990, that requires fast-growing cities and counties to develop a comprehensive plan to manage their population growth. It is primarily codified under Chapter 36.70A RCW, although it has been amended and added to in several other parts of the RCW. Under RCW 36.70A.020, the GMA establishes a series of 13 goals that should act as the basis of all comprehensive plans. The legislature added the goals and policies of the Shoreline Management Act as the fourteenth GMA goal (RCW 36.70A.480). The shoreline goals may be found at RCW 90.58.020. The Washington State Department of Commerce is the primary state-level contact for GMA-related issues. They provide technical assistance to help local governments comply with the GMA and implement their comprehensive plans effectively. Who is Required to Plan Under GMA? 6/11/2019 MRSC - Growth Management Act mrsc.org/Home/Explore-Topics/Planning/General-Planning-and-Growth-Management/Comprehensive-Planning-Growth-Management.aspx 2/5 Click for higher resolution Based on the requirements in RCW 36.70A.040, 18 counties, and all the cities and towns within them, are required to "fully plan" under the GMA. An additional 11 counties have opted to fully plan, although one of those (Ferry County) is in the process of opting out under EHB 1224 (2014), which gave counties under 20,000 population the option to opt out by December 31, 2015. The remaining 28 "fully planning" counties make up about 95 percent of the state's population. The other 11 counties (including Ferry County once the opt-out process is complete) must plan for critical areas and natural resource land only under the GMA. Natural Resource Lands and Critical Areas Under the GMA, all cities and counties - even if they are not subject to comprehensive planning - are directed to designate natural resource lands (including those related to forestry, agriculture, fisheries, and mining) and identify steps to preserve them. For more information, see the Department of Commerce's Natural Resource Lands webpage. In addition, all cities and counties in Washington are also required to adopt critical areas regulations. As defined in RCW 36.70A.030(5): "Critical areas" include the following areas and ecosystems: (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas. Counties and cities are required to include the best available science in developing policies and development regulations to protect the functions and values of critical areas (RCW 36.70A.172). For more information, see our page on Critical Areas or the Department of Commerce's page on Critical Areas and Best Available Science, including its useful Critical Areas Handbook (2007). As of 2017, the department is in the process of updating its critical areas guidance and handbook. 6/11/2019 MRSC - Growth Management Act mrsc.org/Home/Explore-Topics/Planning/General-Planning-and-Growth-Management/Comprehensive-Planning-Growth-Management.aspx 3/5 Mandatory Comp Plan Elements (RCW 36.70A.070) Land Use Housing Capital Facilities Plan Utilities Rural Development (counties only) Transportation Economic Development Parks and Recreation Ports (mandatory for cities with annual maritime port revenues exceeding $60 million, RCW 36.70A.085) Optional Comp Plan Elements (RCW 36.70A.080) Conservation Solar Energy Recreation Subarea Plans (neighborhoods, rural villages, urban growth areas, tribal areas, etc.) Ports (optional for cities with annual maritime port revenues of $20 million to $60 million, RCW 36.70A.085) Comprehensive Plans The GMA establishes the primacy of the comprehensive plan. The comprehensive plan is the centerpiece of local planning and articulates a series of goals, objectives, policies, actions, and standards that are intended to guide day- to-day decisions be elected officials and local government staff. The GMA lays out the following mandatory and optional comprehensive elements: While all of these elements are important, the land use element sets the direction of future growth in a community and is usually depicted as a future land use map. The future land use map, which is policy-oriented, is then implemented in large part by the official zoning map, a regulatory tool. Comprehensive plans must also address "essential public facilities" that are typically difficult to site, such as airports, educational facilities, transportation facilities, and correctional facilities. Comprehensive plans also must be coordinated with adjacent and overlapping jurisdictions and must be updated every 8 years, with optional annual updates. For more information, see our page on Comprehensive Planning. Urban Growth Areas and Accommodating Future Growth Under the GMA, the state Office of Financial Management (OFM) develops population projections for the state and each county. Each "fully planning" county is then mandated to determine, in consultation with cities, where that growth should be directed to occur. Once these growth projections are adopted, then the county and cities are to use them in their comprehensive planning processes and make sure that their plans can accommodate the projected level of growth (RCW 36.70A.115). 6/11/2019 MRSC - Growth Management Act mrsc.org/Home/Explore-Topics/Planning/General-Planning-and-Growth-Management/Comprehensive-Planning-Growth-Management.aspx 4/5 The state’s Buildable Lands program has designated the counties of Clark, King, Kitsap, Pierce, Snohomish, and Thurston, as being counties that have to collect data about their development trends and undertake “reasonable measures” to show how they will be able to accommodate the expected amount of future development. Part of a county’s long-range planning process involves identifying urban growth areas (UGAs), areas where “urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature” (RCW 36.70A.110). Counties are responsible for designating, expanding, and reducing UGA boundaries, although they are required to consult with the cities in their determinations. Based on OFM population projections, UGAs and zoning densities within them should be set to permit urban growth that is projected to occur in the county or city over the next 20 years, although they can provide additional capacity to accommodate a “reasonable land market supply factor” (RCW 36.70A.110(2)). There are some limitations on UGAs, including limits in floodplain areas and in national historic reserves. Areas within the UGA but outside of city or town boundaries should be addressed by the adjacent city and the county through the county-wide planning policies process. Outside of the UGA, cities and town are limited in the actions they can take regarding those areas. For example, cities are highly limited in their ability to extend utilities and other governmental services outside the UGA. RCW 36.70A.110(4) states: “In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development.” The definitions of “urban” compared to “rural” services are defined in RCW 36.70A.030. Similarly, cities or towns are not allowed to annex areas outside of a UGA. For more information on UGAs, see the Department of Commerce’s Urban Growth Area Guidebook (2012). Growth Management Hearings Board The Growth Management Hearings Board resolves disputes concerning comprehensive plans and development regulations adopted under the GMA. The board is made up of seven members from three distinct geographic areas: Eastern, Central Puget Sound, and Western. Challenges to the GMA are heard by a three-member panel comprised of two members residing in the geographic area of a challenge, with one acting as the presiding officer, and a third member drawn from one of the other regions. Each hearing panel must include an attorney and a former city or county elected official and must “reflect the political composition of the board” (RCW 36.70A.260). The Governor has the authority to impose sanctions on cities, counties, and state agencies that do not comply with the GMA, as determined by the Growth Management Hearings Board (see RCW 36.70A.340 - .345). Sanctions may include withholding portion of one or more of the following: Motor vehicle fuel tax; Transportation improvement account; 6/11/2019 MRSC - Growth Management Act mrsc.org/Home/Explore-Topics/Planning/General-Planning-and-Growth-Management/Comprehensive-Planning-Growth-Management.aspx 5/5 © 2019 MRSC of Washington. All rights reserved. Privacy & Terms. Rural arterial trust account; Sales and use tax; Liquor profit tax; Liquor excise tax; and/or Temporarily rescinding the city’s/county’s authority to collect REET The Growth Management Hearings Board website contains numerous resources, including a handbook for practicing before the board and digests of decisions. Recommended Resources Department of Commerce: Growth Management Services - The go-to resource for guidebooks, grants, training, and other resources to help jurisdictions comply with GMA Department of Commerce: A Short Course on Local Planning - Very helpful online resources and in-person training courses on most aspects of local planning in Washington, including a downloadable guidebook and a series of short videos. Office of Financial Management: GMA County Projections - Population projections for each county under low, medium, and high levels of growth, as well as population change over the last 10 years. Most recent projections developed in 2012; projections updated every 5 years. Ask MRSC Archives: Growth Management Act - Answers to selected questions that local jurisdictions have asked us about the GMA Last Modified: January 16, 2019 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 1/6 Subdivisions This page provides a general overview of land subdivision regulations for cities and counties in Washington State. For a list of key court decisions and attorney general opinions, see Subdivisions Court Decisions and AG Opinions. Overview The subdivision of land into lots is governed in Washington State by chapter 58.17 RCW and by city and county ordinances adopted under that chapter's authority. The following is a list of key terms defined by these statutes. Subdivisions are defined in RCW 58.17.020(1) as the "division or redivision of land into five or more lots, tracts, or parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership." Short subdivisions are defined in RCW 58.17.020(6) as the "division or redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership." Any city or town may increase the number of lots that can be regulated as short subdivisions up to a maximum of nine. Counties planning under the Growth Management Act may do the same with respect to unincorporated land within an urban growth area. Plats and short plats are defined in RCW 58.17.020(2) as the maps or representations of subdivisions and short subdivisions respectively that show the division of land into lots and the streets, alleys, dedications, easements, etc. A Binding Site Plan is an alternative method of land division authorized by RCW 58.17.035. For more information, see Site Plans and Binding Site Plans or Exemptions section below. Exemptions Certain land divisions are exempt from state subdivision laws. See RCW 58.17.040. These exempt divisions include: Burial plots Divisions into lots above a certain size Divisions "made by testamentary provisions, or the laws of descent" Boundary line adjustments (no additional lots created) Divisions for industrial or commercial use when a binding site plan is approved Divisions for leasing lots for mobile homes when a binding site plan is approved 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 2/6 Divisions where a portion of the property is developed as a condominium (and certain other requirements, including a binding site plan, are met) RCW 58.17.035 authorizes cities and counties to, by ordinance, establish procedures for use of a binding site plan as an alternative to the subdivision process for the divisions identified in RCW 58.17.040 that require approval of a binding site plan to be exempt. Subdivision Process Overview Subdivisions, other than short subdivisions, must be regulated by cities and counties according to the procedures in chapter 58.17 RCW. These statutory procedures establish a two-step process for the approval of subdivisions: 1. Preliminary plat approval 2. Final plat approval Note that both subdivision and short subdivision approval require compliance with local ordinances such as those dealing with zoning, road standards, shorelines, utilities, and drainage, as set out by RCW 58.17.110. Preliminary Plats Initial Review and Hearing Preliminary plat review is a quasi-judicial process that involves an initial review and hearing by the city or county planning commission or agency, which then makes a recommendation to the city council or board of county commissioners or county council. See RCW 42.36.010 for a definition of quasi-judicial land use actions. A city or county may establish a hearing examiner system, as an alternative to having a planning commission or agency hear and issue recommendations for preliminary plat approval. See RCW 58.17.330. Requirements for Approval Unless the applicant requests otherwise, a preliminary plat must be processed simultaneously with applications for accompanying rezones, variances, planned unit developments, site plan approvals, and similar quasi-judicial or administrative actions to the extent that the procedural requirements for those actions allow for simultaneous processing. A city or county may not approve a preliminary plat unless the city council, board of county commissioners or county council, or hearing examiner, as the case may be, makes written findings regarding certain matters identified in RCW 58.17.110, including open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, and playgrounds. Time Limitations for Approval Preliminary plats must be approved, disapproved, or returned to the applicant for modification within 90 days of the filing of the preliminary plat application, unless the applicant consents to an extension. See RCW 58.17.140. 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 3/6 Final Plats Time Limitations for Submittal RCW 58.17.140 sets out the rules regarding the time period for an applicant to submit a preliminary plat for final plat approval. The general rule is that the applicant has five years after preliminary plat approval in which to submit the plat for final approval. However: If the preliminary plat was approved before January 1, 2015, the applicant has seven years to submit a final plat. If a preliminary plat was approved before January 1, 2008 and is not subject to the Shoreline Management Act, the applicant has 10 years to file for final plat approval. Also, a city or county may adopt procedures by ordinance for extensions of these time periods. For examples, see Examples of Subdivisions City and County Codes section. Approval Process Final plat approval must be made by the legislative body, or the legislative body may by ordinance delegate that authority to “an established planning commission or agency, or to such other administrative personnel in accordance with state law or local charter” (RCW 58.17.100). The final plat approval is in the nature of a ministerial, non- discretionary process; that is, if the applicant meets the terms of preliminary approval and the plan conforms with state law and local ordinances, final approval must be granted (RCW 58.17.170). There is no public hearing for a final plat approval. Examples of Ordinances Allowing Administrative Final Plat Approval Below are ordinances from various Washington jurisdictions amending their municipal code to allow an administrative body or personnel to approve final subdivision plats. Auburn Ordinance No. 6654 (2017) - Allows final plat approval by the Planning and Development Department Director Snohomish County Ordinance No. 17-045 (2017) - Delegates approval authority to the Department of Planning Development Services Spokane County Ordinance No. 2017-1041 (2018) - Allows final plat approval to be delegated administratively Yakima Ordinance No. 2017-030 (2017) - Allows the Community Development Director, rather than the city council, to approve final subdivision plats Requirements for Approval Among the statutory requirements for final plat approval are: Recommendation for approval by the local health department or the agency that would be furnishing sewer and water; Approval by the city or county engineer; A complete survey; and Certification that all taxes and delinquent assessments for the property have been paid. See RCW 58.17.150, RCW 58.17.160, and RCW 58.17.165. 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 4/6 Time Limitations for Approval Final plats must be approved, disapproved, or returned to the applicant for modification within 30 days of filing, unless the applicant consents to an extension. See RCW 58.17.140. Recording and Filing Requirements Lots in a subdivision cannot be sold until final plat approval is obtained and the plat is recorded with the county auditor. See RCW 58.17.195. If the county assessor has adopted an "assessor's plat" for the county, before filing with the county auditor, approved final plats must be submitted to the county assessor for "the sole purpose of assignment of parcel, tract, block and or lot numbers." See RCW 58.18.010. Vesting Rules RCW 58.17.170(3) sets out the vesting rules for an approved final plat. The lots in an approved final plat are "a valid land use notwithstanding any change in zoning laws" for a period of five years from final plat approval. See RCW 58.17.170(3)(a). If the final plat was approved before January 1, 2015, the vesting period is seven years. If the final plat was approved before January 1, 2008, it is vested for a period of 10 years from final plat approval. Also, approved final plats are vested with respect to the conditions of plat approval and with respect to applicable laws for these same time periods, except when "a change in conditions creates a serious threat to the public health or safety in the subdivision." Though, for final plats approved before January 1, 2008, the 10-year vesting period with respect to the conditions of plat approval and to applicable laws applies only if the plat is not within Shoreline Management Act jurisdiction. See RCW 58.17.170(3)(b). Note that these vesting limitations in RCW 58.17.170(3) do not apply to short plats, which have no vesting limitations. See Noble Manor v. Pierce County, 133 Wn.2d 269, 281-82 (1997). Short Subdivision Process No process is set out in state law for approval of short plats. Cities and counties are required by RCW 58.17.060 to adopt by ordinance their own regulations and procedures that provide for "summary approval" of short plats through an administrative process. Approval Process Because it must be an administrative process, there is no public hearing for a short plat application, and the legislative body is not involved in the process. To approve a short plat, the administrative personnel assigned to review short plat applications must make the same written findings in RCW 58.17.110 that are required for subdivision (plat) applications. Time Limitations for Approval Short plats must be approved, disapproved, or returned to the applicant for modification within 30 days of the filing of the short plat application, unless the applicant consents to an extension. See RCW 58.17.140. 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 5/6© 2019 MRSC of Washington. All rights reserved. Privacy & Terms. Recording and Filing Requirements They must be filed with the county auditor and are not deemed "approved" until such filing. See RCW 58.17.065. Vesting Rules There is no limitation on the vesting of an approved short plat as there exists with respect to approved final plats. See Noble Manor v. Pierce County, 133 Wn.2d 269, 281-82 (1997). Subdivisions City and County Codes The following codes exemplify how a range of jurisdictions in Washington State have implemented state subdivision law. City Examples Bothell Municipal Code Title 15 Brewster Municipal Code Title 16 College Place Municipal Code Title 16 Ferndale Municipal Code Title 17 Issaquah Municipal Code Ch.18.13 County Examples King County Code Title 19A San Juan County Code Ch. 18.70 Whatcom County Code Title 21 Yakima County Code Ch. 19.34 Recommended Resources MRSC Subdivisions Court Decisions and AG Opinions - Summaries of key court decisions and attorney general opinions regarding Subdivision laws in Washington State Subdivisions and Planned Developments Blog Posts - List of the latest articles on subdivisions and planned development written by our consultants or guest authors Washington State Department of Commerce GMA Short Course on Local Planning Resource Manual (2016) - See section on the platting process on p. 139 Last Modified: September 06, 2018 6/11/2019 MRSC - Subdivisions mrsc.org/Home/Explore-Topics/Planning/Development-Regulations/Subdivisions.aspx 6/6 y 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 1/8 State Environmental Policy Act This page provides a general overview of the Washington State Environmental Policy Act (SEPA) , including relevant court decisions and examples of local code provisions. Overview The State Environmental Policy Act (SEPA), Washington State's most fundamental environmental law, was enacted in 1971 as chapter 43.21C RCW. SEPA's basic policy of maintaining and improving environmental quality is implemented primarily through extensive procedural requirements designed to ensure that governmental agencies give proper consideration of environmental matters in making decisions on actions, whether proposed by private parties or the governmental entities themselves, that may impact the environment. If initial governmental review of a proposed action indicates that the action will have probable and significant adverse environmental impacts, preparation of a detailed environmental impact statement (EIS) will be required. The procedural requirements governing this environmental review process are contained in detailed regulations enacted by the Department of Ecology (DOE) in chapter 197-11 WAC. Recommended Resources As the agency responsible for implementing state regulations, DOE maintains a wealth of information for local governments regarding SEPA on their website. MRSC recommends you review their online resources, especially their SEPA Handbook (2017), SEPA Guidance, and Frequently Asked Questions pages. Statutes and Administrative Regulations Ch. 43.21C RCW Ch. 197-11 WAC Recent legislative changes to SEPA In the 2017-18 biennium, the following changes were made: Laws of 2017, ch. 289 - Added language requiring that lead agencies “aspire” to prepare environmental impact statements within two years of issuing a threshold determination, and to “far outpace” this two-year timeframe for more straightforward actions. Requires report to legislature regarding EIS timeframes. Laws of 2017, ch. 16 - Expands qualifying planned actions to those that have had their impacts addressed in a threshold determination (rather than an EIS) where the planned action includes mixed use or residential 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 2/8 development and encompasses an area that is (or will be) within .5 miles of a major transit stop. In 2012 and 2015, the Washington Legislature directed the Department of Ecology to amend state SEPA rules to update the categorical exemptions. Below is a link to the rule amendments in the DOE site: SEPA rulemaking 2016 Examples of Codes, Policies, and Procedures City Codes Bainbridge Island Municipal Code Ch. 16.04 Bonney Lake Municipal Code Ch. 16.04 Bothell Municipal Code Ch. 14.02 Chelan Municipal Code Ch. 14.06 Federal Way Municipal Code Title 14 Kent Municipal Code Ch. 11.03 Sultan Municipal Code Ch. 17.04 Sumner Municipal Code Ch. 16.04 County Codes Whatcom County Code Ch. 16.08 Clallam County Code Ch. 27.01 Special Purpose District Policies and Procedures Port of Everett SEPA policies and procedures (2016) Port of Olympia SEPA policies and procedures (2015) Court Decisions The following list of case summaries highlights key court decisions on SEPA issues that might be of special interest to local governments. This is not intended to be a comprehensive list of SEPA related court cases. A city that has authority over (parts) of a proposal is an agency with jurisdiction for purposes of SEPA and, if an MDNS is issued, it may assume lead agency status. Puyallup v. Pierce County, ___ Wn. App. 2d ___ (2019) – A developer sought to construct a warehouse, distribution and freight center in an area adjacent to the city of Puyallup (“City”) and within the city’s Urban Growth Area. The project would be served by city sewer and partially by city water. Due to the increased traffic the project would create, street improvements would be required to the city’s street system. The county, after SEPA review, issued an MDNS requiring, among other things, that street improvements be made to city streets. Thereafter, the City issued a 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 3/8 “Notice of Assumption of Lead Agency Status” and made a Determination of Significance (DS) for the project. The county objected, stating it would not recognize the City’s action. A lawsuit was brought, and the trial court found in the county’s favor. The City appealed. On appeal, the court of appeals reversed. The City can become an “agency with jurisdiction” if it can show that “it has authority to approve, veto, or finance parts of the proposal.” The City argued that, since it had authority over the required street improvements and must approve the sewer and water connections and service, it was an agency with jurisdiction. The county and developer disagreed, arguing that required work in the City was not part of the proposal and the City did not qualify as its role was that of a service provider. The court concluded that the City, based upon the plain meaning of WAC 197-11-948, was an agency with jurisdiction due to its responsibilities over the street improvements and provision of sewer and water. An agency with jurisdiction may assume lead agency status if a DNS is issued. Although the county disagreed, the court concluded that an MDNS is a type of DNS, thus allowing the City to assume lead agency status Lease option to conduct feasibility studies was not a "project action" and therefore not subject to SEPA review. City of Mukilteo v. Snohomish Cty., review denied, 188 Wn.2d 1019, 397 P.3d 119 (2017) – The court held that a lease option to conduct feasibility studies for commercial airline service at a portion of Paine Field was not a "project action" under WAC 197–11–704(2)(a)(ii). The option is not a decision to “[p]urchase, sell, lease, transfer, or exchange natural resources, including publicly owned land, whether or not the environment is directly modified.” Rather, the option granted a contractual right to enter the airport property to conduct feasibility studies and the right to exercise the option to lease the property at a later time. The county was therefore not required to complete a SEPA review before executing the option to lease because this option does not fall within this definition. Lease did not bind the port so as to limit reasonable alternatives under SEPA. Columbia Riverkeeper v. Port of Vancouver, 188 Wn.2d 80 (2017) – An environmental group brought a SEPA challenge against the Port of Vancouver, arguing that entering into a lease for a proposed petroleum facility prior to completion of an EIS violated the SEPA requirement that prohibits agency action that limits reasonable alternatives prior to completion of an EIS. Siting of the facility was subject to the Energy Facility Site Evaluation Council (EFSEC) approval. The lease included language stating that Tesoro could not occupy or develop the port property until Tesoro obtained “all necessary licenses, permits and approvals…for the Permitted Use.” The court held that the SEPA provision at issue did apply to the port, however the lease had sufficient escape clauses such that the port did not violate SEPA by entering into the agreement. Developer did not need to show financial responsibility at SEPA stage. Quinault Indian Nation v. Imperium Terminal Services, LLC, 190 Wn. App. 696 (2015) – A proposal was made to increase the number of oil tanks at a facility located on the Hoquiam waterfront. Oil would be transferred by ship to the tanks and then removed from the site by train cars. Initially, an MDNS was issued and the Quinault nation, as well as others, objected. Although the MDNS was eventually withdrawn, thus mooting some issues, the court considered whether the developer had to prove financial responsibility to be able to take care of oil spills at the SEPA review stage. The court concluded that it did not. There would need to be proof before the project could become operational, but it was not required when a SEPA evaluation was made. An argument that the developer had to comply with the Ocean Resources Management Act (ORMA) was also rejected by the court. ORMA would not apply 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 4/8 unless the project involved “ocean uses” or transportation. This inland project did not involve ocean uses, and the “transportation” would need to be incidental to an ocean use to be covered (and there was no “ocean use” as defined by ORMA). Open record hearing required on SEPA appeal Ellensburg Cement Products, Inc. v. Kittitas County, 179 Wn.2d 737 (2014) – The county considered the appeal of a DNS for a conditional use permit application for rock crushing and related activities on agricultural-zoned property in a "closed record" hearing, and it then held an "open record" public hearing on the underlying permit application. The state supreme court held that the county, because it provided an administrative SEPA appeal process, was statutorily required to hold an "open record hearing" on the appeal of the SEPA DNS. The SEPA appeal hearing must be consolidated and simultaneous with the hearing on the underlying permit decision, and must provide for the preparation of a record, including testimony under oath, for use in subsequent proceedings. Environmental Impact Statement (EIS) required Lands Council v. Wash. State Parks & Recreation Comm'n, 176 Wn. App. 787 (2013) – The commission issued a mitigated determination of nonsignificance (MDNS) for its classification of an area in the state park as “recreation,” allowing development of skiing facilities. The classification was conceptual in nature and subject to modification of specific locations of proposed facilities. The MDNS included a commitment to future EIS preparation when an actual detailed development proposal is made. The court held that an EIS is required before an agency makes an official classification of land if the classification would effectively approve a proposed development as described in a conceptual plan, subject only to specific siting decisions. Douglass v. City of Spokane Valley, 154 Wn. App. 408 (2010) – The court upheld the hearing examiner's decision reversing the city planning department and requiring preparation of an EIS for a proposed housing development to address egress from the area of the proposed development (an area of high fire risk) in the event of a firestorm event that would require evacuation of the area. Postponement of environmental analysis Spokane County v. E. Wash. Growth Mgmt. Hearings Bd., 176 Wn. App. 555 (2013) – The court emphasized that, for a nonproject action such as a comprehensive plan amendment or rezone, the agency must address the probable impacts of any future project action the proposal would allow. Thus, the hearings board did not err in finding SEPA noncompliance because the County failed to fully disclose or carefully consider the comprehensive plan amendment's environmental impacts before adopting it and at the earliest possible stage under RCW 43.21C.030(2) (c) and WAC 197-11-330(1). The hearings board properly recognized that the SEPA checklist could not postpone environmental analysis to the project review stage because the comprehensive plan amendment approved the property's existing nonconforming use, thereby affecting the environment even if the property owners or their successors never pursue subsequent project action. Memorandum of Understanding (MOU) not an "action" 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 5/8 Int'l Longshore & Warehouse Union, Local 19 v. City of Seattle, 176 Wn. App. 511 (2013) – A memorandum of understanding (MOU) specifying city and county participation in the financing and operation of the proposed sports arena was not an "action" under SEPA because their commitments were expressly contingent on a future decision to proceed with their participation in the project after completion of an EIS. The MOU was not an “action” because, by itself, it had no environmental impact. SEPA challenge to comprehensive plan and zoning code amendments Davidson Serles & Assocs. v. City of Kirkland, 159 Wn. App. 616 (2011) – The Growth Management Hearings Board has exclusive jurisdiction to review challenges to comprehensive plans and development regulations that are based on SEPA. Also, no EIS is required for planned action projects because the environmental impacts of the individual planned action projects will have been addressed in an EIS prepared earlier in conjunction with one of the six activities listed in RCW 43.21C.031(2)(a)(ii). Legal support for mitigation condition Brinnon Group v. Jefferson County, 159 Wn. App. 446 (2011) – A single citation to an environmental policy in support of several mitigation conditions may be sufficient to satisfy the requirement in WAC 197-11-660(1) that the basis for a mitigation condition delineated in an environmental impact statement be supported by citation to an environmental protection policy. Nothing in RCW 43.21C.060, which authorizes mitigation conditions, or WAC 197-11-660(1), which establishes the citation requirement, requires a government agency to separately cite an environmental policy for each mitigation condition specified in an environmental impact statement. of the rule. Fluoridation decision exempt from SEPA review Clallam County Citizens for Safe Drinking Water v. City of Port Angeles, 137 Wn. App. 214 (2007) – A city council's decision to fluoridate the public water supply is categorically exempt from environmental review under SEPA. However, nothing in SEPA or the SEPA rules precludes an agency from issuing a DNS on a project determined to be categorically exempt. Condemnation proceedings are not subject to SEPA Regional Transit Authority v. Miller, 156 Wn.2d 403 (2006) Hearing examiner jurisdiction In re Jurisdiction of King County Hearing Examiner, 135 Wn. App. 312 (2006) – The court held that the hearing examiner lacked jurisdiction to hear a challenge to a supplemental EIS after having a decision upholding the adequacy of the final EIS. Also, RCW 43.21C.240 allows counties and cities to determine that a project's environmental impact will be mitigated through its own development regulations and existing environmental documents. Review authority over plat mitigation 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 6/8 City of Olympia v. Thurston County Bd. of Comm'rs, 131 Wn. App. 85 (2005), review denied, 158 Wn.2d 1003 (2006) – Where a mitigation measure identified in a mitigated determination of nonsignificance is required as a condition of plat approval, review is according to procedures for review of the plat, not according to proceduress for seeking review of the threshold determination. A mitigation measure is not a threshold determination under SEPA rules. SEPA EIS is not required when an adequate EIS has been previously prepared under NEPA Boss v. Department of Transportation, 113 Wn. App. 543 (2002) – When an adequate environmental impact statement (EIS) has been previously prepared under the National Environmental Policy Act (NEPA) for the same project, a SEPA EIS is not required, under RCW 43.21C.150. Supplemental EIS not required Thornton Creek Legal Defense Fund v. Seattle, 113 Wn. App. 34 (2002), review denied, 149 Wn.2d 1013 (2003) – A proposed development's effect upon a hypothetical habitat restoration project is not an adverse environmental impact under SEPA. Also, the city's circulation of a "notice of availability" of an EIS addendum rather than a "notice of adoption" of the addendum, as required by law, was harmless error. Cumulative impacts Boehm v. City of Vancouver, 111 Wn. App. 711(2002) – An analysis of the cumulative impacts of a proposed project is not required under SEPA unless (1) there is some evidence that the project will facilitate future action that will result in additional impacts or (2) the project is dependent on subsequent proposed development. A project's cumulative impacts that are merely speculative need not be considered. SEPA / GMA integration Moss v. City of Bellingham, 109 Wn. App. 6 (2001), review denied, 146 Wn.2d 1017 (2002) – The city granted preliminary plat approval after issuing a determination of nonsignificance, thus obviating the need for preparation of an EIS. RCW 43.21C.240, as implemented by WAC 197-11-158, substantially streamlined the threshold determination process for cities and counties planning under the GMA by authorizing the SEPA official to rely on existing plans, laws, and regulations in meeting SEPA requirements.The preliminary plat approval included numerous conditions in mitigation of the environmental impacts of the proposed development. The court held that an environmental impact statement was not required where the requirements of the local comprehensive plan and regulations and conditions of plat approval mitigated all of the significant environmental impacts of the proposed development. Supplemental EIS Wells v. Water Dist. 10, 105 Wn. App. 143 (2001) – An agency is not required to supplement an existing final environmental impact statement (FEIS) where new information regarding a project's potential impacts does not establish that significant adverse impacts are probable, meaning reasonably likely to occur. The mere possibility of those impacts occurring is not sufficient to require a supplement to the FEIS. A claim that "new information" requires supplementation of an FEIS is subject to the 21-day limitation in RCW 43.21C.080(2)(a) for challenging a 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 7/8 governmental action under SEPA. A challenge after that 21-day period is not allowed unless there has been a substantial change in the proposed action that would likely have new significant adverse impacts or an impact previously identified as needing further evaluation. Mitigated DNS West Coast, Inc. v. Snohomish County, 104 Wn. App. 735 (2000) – A developer granted preliminary plat approval for which a final and binding mitigated determination of nonsignificance (MDNS) has been issued may not undermine that determination by seeking revision of the preliminary plat in an attempt to remove an express condition of plat approval on which the MDNS is based. Lead agency status Bellevue Farm Owners Assoc. v. Shorelines Hearings Bd., 100 Wn. App. 341 (2000) – An agency has jurisdiction under SEPA if it must issue permits or approvals for the project. WAC 197-11-714(3). Another agency with SEPA jurisdiction cannot change a DNS unless it assumes lead agency status. WAC 197-11-390(2)(b). If another agency assumes lead status under WAC 197-11-948(1), the new lead agency can review the underlying materials and reverse the first lead agency's DNS. The new lead agency can then order preparation of an EIS. WAC 197-11-948(2). But the county's DNS for a proposed shoreline development did not preclude the Shorelines Hearings Board from later denying the permit for proposed development because of environmental impact. Consideration of alternatives King County v. Cent. Puget Sound Bd., 138 Wn.2d 161 (1999) – SEPA directs that "alternatives to the proposed action" be included in an EIS. Also, SEPA rules mandate consideration of "reasonable alternatives," which are defined as less environmentally costly action that could feasibly attain or approximate a proposal's objectives. An alternative considered for purposes of an EIS need not be legally certain or uncontested, it must only be reasonable. Thus, consideration of a one-acre lot subdivision as an alternative to the proposed urban planned development is permissible, even if the one-acre alternative may not legally be available as an option. Availability of writ of review Saldin Sec. v. Snohomish County, 134 Wn.2d 288 (1998) – Property owners who proposed to develop nearly 100 acres into separate residential subdivisions filed petitions for constitutional writs of certiorari seeking judicial review of the county council's decision requiring preparation of a limited EIS with respect to the issue of potential groundwater contamination. The county deferred action on the preliminary plat applications until completion of the EIS. SEPA, specifically RCW 43.21C.075(6)(c), requires that judicial review of any SEPA determination be coupled with an appeal of the final action on an application. The court held that SEPA did not provide effective review of the county council's requirement of an EIS, and that a constitutional writ of review is available if the project proponent alleges facts that, if verified, indicate that the council's decision was illegal or arbitrary and capricious. Here, the project proponent did not allege such facts. Conclusory findings of adverse impacts 6/11/2019 MRSC - State Environmental Policy Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/State-Environmental-Policy-Act.aspx 8/8 © 2019 MRSC of Washington. All rights reserved. Privacy & Terms. Hayes v. City of Seattle, 131 Wn.2d 706 (1997) – The city's decision to condition the grant of a master use permit on a reduction in the length of the proposed building was conclusory and, contrary to SEPA, did not specifically describe the adverse impact of the project or explain how reducing the size of the project would mitigate any such adverse impact. EIS adequacy Kiewit Construction v. Clark County, 83 Wn. App. 133 (1996) – Kiewit appealed the county's decision to require a supplemental EIS for a proposed asphalt manufacturing plant or, alternatively, to require Kiewit to construct a ramp from the site to a nearby freeway as a condition of granting the requested permit. The county required the supplemental EIS because it deemed the original EIS to be inadequate. The court, in upholding the county's decision, cited the rule that the legal adequacy of an EIS is tested under a rule of reason. Under this rule, an EIS is adequate if it provides a reasonably thorough discussion of the significant aspects of the probable environmental consequences of the proposed activity and presents sufficient information to allow the governmental decision maker to make a reasoned choice among alternatives. In addition to deciding that the requirement of the supplemental EIS satisfied this test, the court concluded that approval of the permit conditioned on the construction of a freeway ramp was a valid alternative to the supplemental EIS requirement. EIS adequacy / phased review Opal v. Adams County, 128 Wn.2d 869 (1996) – The plaintiff land preservation organization appealed the county's decision to grant a permit authorizing the use of a site in the county for a proposed regional solid waste landfill and recycling facility. Among other things, the plaintiff argued that the EIS should have included consideration of offsite alternatives. The court disagreed, concluding that this was a private project for which SEPA does not require consideration of alternatives. In looking at whether this was a public or private project, the court considered (1) which entity primarily sponsored or initiated the project and (2) whether the public entity is seeking to fulfill its responsibility to perform a traditional governmental function by way of a private project. The court also concluded that phased environmental review of this project was appropriate. Last Modified: April 04, 2019 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 1/6 Shoreline Management Act This page provides a basic overview of the Shoreline Management Act in Washington State, focusing on significant court decisions and sample master programs. Overview The Shoreline Management Act (SMA), like the State Environmental Policy Act (SEPA), was enacted in 1971, and its purpose is to manage and protect the shorelines of the state by regulating development in the shoreline area. A major goal of the Act is "to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines." Its jurisdiction includes the Pacific Ocean shoreline and the shorelines of Puget Sound, the Strait of Juan de Fuca, rivers, and streams and lakes above a certain size. It also regulates "wetlands" associated with these shorelines. Visit the Department of Ecology’s (DOE) Shoreline Management Act pages for the most comprehensive and up- to-date information regarding the SMA and local implementation. The primary responsibility for administering this regulatory program is assigned to local governments, with a significant oversight role by the Department of Ecology. Local governments have adopted shoreline master programs and many have adopted their required updates pursuant to the Shoreline Master Program Guidelines at chapter 173-26 WAC. Local shoreline master programs establish goals and policies that are implemented through use regulations. No substantial development is permitted on the state's shoreline unless a permit is obtained from the local jurisdiction that demonstrates consistency with the shoreline master program. Statutes and Administrative Regulations Ch. 90.58 RCW - Shoreline Management Act Ch. 173-26 WAC - Shoreline master program guidelines Ch. 173-27 WAC- Shoreline management permit and enforcement procedures Shoreline Permits and the Shorelines Hearings Board Local governments issue shoreline substantial development, conditional use, and variance permits, as well as shoreline exemptions pursuant to the policies and use regulations in their shoreline master programs. Approvals by local government of shoreline conditional use and variance permits must be reviewed by DOE, which then issues the 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 2/6 final decision. Local governments and Ecology can also issue fines under the SMA. For more information, see DOE’s Shoreline Permits and Enforcement page. The Shorelines Hearings Board hears appeals from permit decisions, and from shoreline penalties jointly issued by the local government and DOE, or issued by DOE alone. Shoreline Master Program Updates Cities and counties are required to update their shoreline master programs to be consistent with the Shoreline Master Program Guidelines according to the schedule in RCW 90.58.080, with periodic reviews thereafter. For the status of individual jurisdictions with links to the documents, see DOE's Status of Local Shoreline Master Programs. Examples of Updated Shoreline Master Programs Bainbridge Island Shoreline Master Program and Ordinance No. 2014-04 Bothell Resolution No. 1288 (2012) - Approving amended shoreline master program, and Exhibits A-D King County: About the King County Shoreline Master Program Kirkland Ordinance No. 4251 (2010) - Adopting the Shoreline Master Program update Spokane County Shoreline Master Program Selected Court Decisions Court upholds SMP adopted pursuant to the updated Department of Ecology guidelines Olympic Stewardship Foundation, et. al. v. Western Washington Growth Management Hearings Board, ___ Wn. App. ___ (2017) - Division II affirmed the Western Washington Growth Management Hearings Board decision upholding Jefferson County’s Shoreline Master Program (SMP). Jefferson County’s SMP was adopted pursuant to the updated Department of Ecology guidelines under the Shoreline Management Act (SMA). The updated shoreline guidelines emphasize no net loss of ecological functions and protection of shoreline resources. The court rejected several arguments raised by the appellants, including that the SMP improperly prioritized shoreline resources over property rights, resulted in over-burdensome regulations on landowners, and was not supported by adequate scientific data. Owner-noncommercial use exemption Dep't of Ecology v. City of Spokane Valley, 167 Wn. App. 952, review denied, 175 Wn.2d 1015 (2012) - The court held that the "owner-noncommercial use exemption" to the definition of "substantial development" in RCW 90.58.030(3)(e)(vii) and thus to the requirement of a substantial development permit did not apply to the construction of spec docks for resale by the owner-developer of a 30-lot residential waterfront development. A developer-owner of property to be divided into multiple lots is not a private noncommercial user to which this exemption would apply. 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 3/6 RCW 82.02.020 and Shoreline Master Programs Citizens For Rational Shoreline Planning v. Whatcom County, 172 Wn.2d 384 (2011) - The state supreme court held that shoreline master programs (SMPs) developed pursuant to the Shoreline Management Act are not subject to RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development. The Shoreline Management Act governs nearly every aspect of the adoption and amendment of SMPs and this shows that SMPs were the product of state action. By its terms, RCW 82.02.020 applies to land use regulations and conditions imposed by local jurisdictions. While local jurisdictions played a role in tailoring SMPs to local conditions, the Shoreline Management Act dictates that the Department of Ecology retains control over the final contents and approval of SMPs. Thus, SMP regulations are the product of state action and not subject to RCW 82.02.020. Private docks in harbor Samson v. City of Bainbridge Island, 149 Wn. App. 33 (2009) - The court of appeals upheld the city's amendment to its shoreline master program prohibiting private docks in Blakely Harbor, a shoreline of statewide significance, concluding that the amendment was consistent with statutory guidelines. The court held that private docks in the harbor are not a preferred use, that the amendment was consistent with the city's shoreline master program and comprehensive plan, and that the amendment did not violate the "public trust" doctrine. Critical areas in shorelines Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 242 (2008) - The Growth Management Act (GMA) does not apply to those critical areas inside shoreline management areas managed through shoreline master plans properly adopted, amended, and approved by Department of Ecology under the Shoreline Management Act (SMA). Critical areas within the jurisdiction of the SMA are governed only by the SMA. However, what is left unanswered by the court's plurality decision (a fifth justice concurring in the result only) is when the 2003 law at issue transfers protection of shoreline critical areas to a shoreline master program. Two subsequent court of appeals decisions from different divisions (Kitsap Alliance of Property Owners v. Growth Mgmt. Hrgs. Bd., 152 Wn. App. 190 (2009), and Kailin v. Clallam County, 152 Wn. App. 974 (2009)) reached differing conclusions as to the effect of the Futurewise decision. The 2010 legislature resolved the matter with the passage of ESHB 1653 (Ch. 107, Laws of 2010). Department of Ecology challenge subject to LUPA Twin Bridge Marine Park, LLC v. Dep't of Ecology, 162 Wn.2d 825 (2008) - The Department of Ecology (DOE) does not have statutory authority to directly review or to set aside a shoreline substantial development permit issued by a local jurisdiction having an approved shoreline management plan under the SMA. Should DOE wish to challenge a locally-issued substantial development permit, it must do so by means of a timely filed petition in superior court under the Land Use Petition Act (chapter 36.70C RCW). DOE may not collaterally challenge that decision by bringing an independent enforcement action against the developer. Shoreline development moratorium 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 4/6 Biggers v. City of Bainbridge Island, 162 Wn.2d 683 (2007) - In a 5-4 decision, the state supreme court overturned the city's moratorium on shoreline development. The city had adopted adopting successive moratoriums that prevented the development of private property in shoreline areas over a period of years. However, five justices held that local governments have authority to enact moratoria on shoreline development without being in conflict with the SMA. Location of ordinary high water mark Thompson v. Dep't of Ecology, 136 Wn. App. 580, review denied, 161 Wn.2d 1023 (2007) - The ordinary high water mark (OHWM) occurs where the presence of water is reflected in the vegetation, and the OHWM can reasonably be interpreted as meaning that the line occurs where the river has caused aquatic vegetation to grow; therefore, the Shoreline Hearings Board did not err by denying an owner a variance for a deck because it interfered with the setback from the ordinary high water mark under RCW 90.58.030(2)(b). GMA/SMA priority Pres. Our Islands v. Shorelines Hearings Bd., 133 Wn. App. 503 (2006), review denied, 162 Wn.2d 1008 (2008) - RCW 36.70A.480 does not mandate that the policies and regulations of the SMA take priority over policies and regulations adopted under the GMA. On the contrary, the statute requires that regulations implementing the two acts be harmonized in the process of overall land use planning and regulation and specifically states that a county's shoreline master program goals and policies are part of its growth management comprehensive plan and that its master program regulations constitute development regulations. LUPA exception Harrington v. Spokane County, 128 Wn. App. 202 (2005) - The Land Use Petition Act (LUPA), chapter 36.70C RCW, is the exclusive means of judicial review of land use decisions, with certain exceptions. RCW 36.70C.030. One of those exceptions is that LUPA does not accommodate judicial review of a land use decision that is subject to review by a quasi-judicial body created by state law. RCW 36.70C.030(1)(a)(ii). Specifically, decisions reviewable by the Shorelines Hearings Board are not subject to judicial review under LUPA. DOE challenge subject to LUPA Samuel's Furniture v. Dept. of Ecology, 147 Wn.2d 440 (2002) - The Land Use Petition Act (LUPA), chapter 36.70C RCW, provides the avenue by which the Department of Ecology (DOE) may challenge a local government's decision that a proposed development does not require a shoreline substantial development permit because the project is outside the shoreline jurisdiction of the local shoreline master program. Where DOE has failed to timely seek review of the local government's decision under LUPA, it may not collaterally challenge the decision by bringing an independent enforcement action against the property owner or developer. Shoreline variance Buechel v. Department of Ecology, 125 Wn.2d 196 (1994) - A landowner seeking a variance from the requirements of a shorelines master program must comply with the requirements of a county or city ordinance if those requirements are stricter than those established by WAC 173-14-150 (now WAC 173-27-170). In the granting variances in shorelines 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 5/6 cases, consideration must be given to the cumulative impact of additional requests for like actions in the area. Injunctive or declaratory relief Hedlund v. White, 67 Wn. App. 409 (1992) - Either a private citizen or a government entity may base an action for damages on the SMA, but only a governmental entity may base an action for injunctive or declaratory relief on the SMA. Shoreline Hearings Board review Bellevue Farm Owners Ass'n v. Shorelines Hearings Bd., 100 Wn. App. 341, review denied. 142 Wn.2d 1014 (2000) - San Juan County's threshold determination of nonsignificance did not preclude the Shoreline Hearings Board's independent review of the application. The board did not err in considering other applicable state and local regulations when it denied the substantial development permit based on deficiencies outside SEPA. Shoreline office building Eastlake Community Council v. City of Seattle, 64 Wn. App. 273, review denied, 119 Wn.2d 1005 (1992) - The Shoreline Management Act does not require that a shoreline office building be an integral part of, or be related to, the water dependent use built in conjunction with the offices. Commercial clam harvesting Clam Shacks of America, Inc. v. Skagit County, 109 Wn.2d 91 (1987) - The Shoreline Management Act authorizes local governments to require conditional use permits for shoreline activities, commercial clam harvesting in this case, that are not "developments" as defined by the Act. Voluntary setback Hunt v. Anderson, 30 Wn. App. 437 (1981) - Under the SMA, a home may be required to conform to a voluntary setback line established by adjacent homes if a location closer to the shore would detrimentally affect the aesthetics of the neighborhood and obstruct the view and reduce the value of the adjacent homes. The placing of a mobile home, the addition of a septic tank and drain field, and the construction of a deck within the 200-foot jurisdictional boundary of the SMA constituted a "development" under RCW 90.58.140(1). The prior location of plaintiff's homes on either side of defendant's lot created a voluntary setback to which defendant's development was required to conform. Public benefit doctrine Portage Bay-Roanoke Park Comm'ty Council v. Shorelines Hearings Bd., 92 Wn.2d 1 (1979) - Any common-law public benefit doctrine this state may have had prior to 1971 has been superseded and the SMA is the present declaration of that doctrine. Conflict between SMA and building code 6/11/2019 MRSC - Shoreline Management Act mrsc.org/Home/Explore-Topics/Environment/Environmental-Laws/Shoreline-Management-Act.aspx 6/6 © 2019 MRSC of Washington. All rights reserved. Privacy & Terms. Dep't of Ecology v. Pacesetter Constr. Co., 89 Wn.2d 203 (1977) - The SMA is a state statute of general application basically intended for the protection of the environment rather than the quality of construction, and, to the extent of any conflict between a city building code and SMA, the latter must govern. Vesting under SMAA right to a permit required by the Shoreline Management Act vests upon the application for such permit. Talbot v. Gray, 11 Wn. App. 807 (1974), review denied, 85 Wn.2d 1001 (1975) - This rule, of course, assumes that the permit applied for and granted be consistent with the shoreline plan and regulations in force at the time of application for the permit. Recommended Resources Washington Department of Ecology: Shoreline and Coastal Management Puget Sound Partnership Last Modified: April 02, 2018 Stormwater Management 101 Presenter:Vince McIntyre, M.S., E.I.T. Jan. 24th, 2019 Utilizing the City’s Templates for Small New Construction and Re-construction Projects Introduction 1969 Cuyahoga River Fire Polluted from decades of industrial waste.Cleveland, OH. 1970s Love Canal School and subdivision built on chemical waste disposal site. 1970s Hardeman County., TN 200-acre pesticide waste dump contaminated drinking water. EPA 1970 CWA 1972 WQ Act 1987 NPDES 1970s – 80’s EPA – I & II 1990 & 1999 ECY – I & II 1995 & 2007 Introduction Washington State Phase I and Phase II Permittees Source:WA Dept. of Ecology Description:Municipal Stormwater Permit Areas (MSWPA) of Washington State, incorporating 2013 updates to combined incorporated City boundaries and unincorporated Urban Growth Areas (UGA) as defined by the Growth Management Act. Phase 1 Phase 2 Phase I: more than Phase II: more than Introduction S5.C.4. Controlling Runoff from New Development, Redevelopment and Construction Sites •Each Permittee shall implement and enforce a program to reduce pollutants in stormwater runoff. •The program shall apply to private and public development. •Program must be included in and enforceable by City Ordinance. L.I.D. must be adopted into municipal Code. •The Program must, at a minimum, meet the requirements and thresholds described in the S.W.M.M.W.W. •The thresholds shall apply to all applications submitted on or after Jan. 1st, 2017. Introduction 2012 StormwaterManagementManualfor Western Washington(SWMMWW),Amended 2014. 9 Minimum Requirements 1.Preparationof stormwatersite plans. 2.Construction StormwaterPollutionPreventionPlan (SWPPP). 3.Source Controlof pollution. 4.Preservationof Natural Drainage Systems and Outfalls. 5.Onsite StormwaterManagement 6.RunoffTreatment 7.Flow Control 8.Wetlands Protection 9.Operationand Maintenance Introduction Flow Charts SWMMWW: Vol. I, Ch. 2 Introduction SMALL PROJECT (MR #1-5) Land Disturbance:≥ 7,000 ft2 HARD Surface:≥ 2,000 ft2 < 5,000 ft2 LARGE PROJECT (MR #1-9) Land Conversion: ≥ ¾ acre veg.-lawn/l.s. ≥ 2.5 acres native-pasture HARD Surface:≥ 5,000 ft2 Flow Charts SWMMWW: Vol. I, Ch. 2 Introduction SMALL PROJECT Templates |Worksheets & Factsheets Example: SFR “ We’d like to Build a House ” •Site (1400 Block of W. 10th St.) •Pre-platted City Lot•(50’ x 140’) 7,000 sq. ft.•Existing Condition: Grass•Existing Slope: ± 3% to the NW•Utilities are stubbed-out to the Property Line •Typical Single Family Residence (SFR)•House: 1,200 sq. ft.•Garage: 800 sq. ft.•Driveway: 600 sq. ft. •Walkway: 70 sq. ft.•Patio: 240 sq. ft.•Yard: Grass & minimal landscaping Start Considering Stormwater! DrivewayGarageHouse Walkway L.S. Grass Grass N Example: SFR Collect Background Site Information •Check City & County records •Verify Utility Connectivity •Water and Sewer card •Easements? •Is sidewalk going to be required? •Is it near a Critical Area? •Lot in a subdivision? •Was stormwater accounted for? •Is it near a Wetland? •What is the USDA soil type? •Are there Contaminated Soils nearby? •Drains to Creek or Saltwater? •Is Onsite SW Management likely? City of Port Angeles (COPA) Utility Map https://pawa.maps.arcgis.com/home/index.html City of Port Angeles (COPA) Stormwater Discharge Map https://www.cityofpa.us/DocumentCenter/View/6393/Stor mwater-Discharge-Map WA Department of Ecology (ECY) What’s In My Neighborhood? https://fortress.wa.gov/ecy/neighborhood/ USDA National Resource Conservation Service (NRCS) Web Soil Survey https://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm Washington Dept. of Fish and Wildlife (WDFW) National Wetlands Inventory Mapper https://www.fws.gov/wetlands/data/mapper.html Conclusion Thank you! Significant Court cases affecting Planning and Land Use regulation Pennsylvania Coal Co v. Mahon (1922) Supreme Court of the United States held that whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property. The decision started the doctrine of regulatory taking. The Takings Clause originally applied only when the government physically seized or occupied property. Prior to 1922, American courts followed a clear rule: regulation of land was not a taking. Rather, it was simply an exercise of the government’s police power to protect the public health, safety, welfare, and morals. http://laws.findlaw.com/us/260/393.html Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) Established zoning as a valid exercise of police power by local government. http://laws.findlaw.com/us/272/365.html Berman v. Parker, 348 U.S. 26 (1954) Established aesthetics and redevelopment as valid public purposes for exercising the power of eminent domain. http://laws.findlaw.com/us/348/26.html Cheney v. Village 2 at New Hope (1968) Legitimized the planned unit development (PUD) process. An ordinance creating a planned unit development district and authorizing the planning commission to approve the type, size and location of buildings and uses within the district was not a violation of the municipal comprehensive plan or an illegal delegation of legislative power to the commission. http://aalto.arch.ksu.edu/jwkplan/cases/cheney.pdf Golden v. Planning Board of Ramapo (1972) Zoning ordinances, allowing subdivision development only by special permit upon showing that adequate municipal facilities and services were available or would be provided by the developer, constituted a rational attempt to provide for sequential and orderly residential development in conjunction with the needs of the community and its ability to supply public facilities. http://aalto.arch.ksu.edu/jwkplan/cases/ramapo.pdf Just v. Marinette County (1972) Significantly integrated public trust theories into a modern regulatory scheme. Shoreland zoning ordinance providing for the creation of conservancy, recreational and general purpose districts along navigable streams and other bodies of water upheld as constitutional. A landowner has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. http://aalto.arch.ksu.edu/jwkplan/cases/just.pdf Fasano v. Board of County Commissioners of Washington County (1973) Required zoning to be consistent with comprehensive plans and recognized that rezoning may be quasi- judicial as well as legislative. Because rezoning to permit a large mobile home PUD determined the rights of only a few landowners, the action was adjudicatory rather than legislative in character and the presumption of validity normally afforded local legislative acts did not apply. In such cases, the burden of justifying the rezoning falls on the party seeking the change, who must show that the change will be in accordance with the comprehensive plan. http://aalto.arch.ksu.edu/jwkplan/cases/fasano.pdf Young v. American Mini Theaters, Inc. (1976) Opened up the possibility to control pornography via land use. Special requirements applicable to adult theatres and bookstores upheld. http://laws.findlaw.com/us/427/50.html Penn Central Transportation Co. v. City of New York (1978) It established a new taking test and decided that the economic impact on Penn Central was not severe enough to constitute a taking because Penn Central could continue with its present use whose return, it conceded, was not unreasonable. Since the regulation did not interfere with its reasonable investment- backed expectations it was not considered a taking. Restrictions on the development of the Grand Central Terminal did not amount to a taking of property, since Penn Central could transfer the development rights to the other properties and a reasonable return on the property was allowed. The US Supreme Court ruled. http://laws.findlaw.com/us/438/104.html Agins v. City of Tiburon (1980) Used an alternative takings test to the Penn Central test. U.S. Supreme Court rules that the open space zoning ordinance of the city of Tiburon, California, does not result in a taking of property without payment of just compensation. http://laws.findlaw.com/us/447/255.html Metromedia, Inc. v. City of San Diego (1981) Extended Commercial speech to aesthetic regulation. Ordinance that substantially restricted both commercial and noncommercial off-site billboards as well as noncommercial on-site billboards held unconstitutional under the First Amendment. http://laws.findlaw.com/us/453/490.html Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Created the “essential nexus” takings test for conditioning development approvals on dedications a nd exactions. Requiring the conveyance to the public of an easement for lateral beach access as a condition for a permit to replace a one-story beach house with a two-story residence and a two-car garage is a taking without just compensation because it is unrelated to the public interest in protecting the public access to the beach. http://laws.findlaw.com/us/483/825.html Dolan v. City of Tigard, 512 U.S. 374 (1994) Extended Nollan’s “essential nexus” test to require “rough proportionality” between development impact and conditions. Permit condition requiring land dedication for pedestrian/bike path is unconstitutional taking when city has not made individualized showing that dedication would “roughly proportionately” lessen traffic generated by proposed new development. http://laws.findlaw.com/us/512/374.html Kelo v. City of New London, 545 U.S. 469 (2005) Involved the use of eminent domain to transfer land from one private owner to another private owner to further economic development. The case arose due to condemnation by the City of of privately owned real property so that it could be used as part of a "comprehensive redevelopment plan." However, the private developer was unable to obtain financing and abandoned the project, leaving the land as an undeveloped empty lot. The plaintiffs argued that economic development, the stated purpose of the taking and subsequent transfer of land to the New London Development Corporation, did not qualify as a public use. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible ‘public use’ under the Takings Clause of the Fifth Amendment. Laws. https://supreme.justia.com/cases/federal/us/545/469/ Hadacheck v. Sebastian, 239 U.S. 394 (1915) An ordinance of Los Angeles prohibited the manufacturing of bricks within specified limits of the city held, in an action brought by the owner of brick clay deposits and a brick factory, not to be unconstitutional as depriving him of his property without due process of law or as denying him equal protection of the laws. The fact that a particular business is not prohibited in all sections of a municipality does not, for that reason, make the ordinance unconstitutional as denying equal protection of the law to those carrying on that business in the prohibited section -- conditions may justify the distinction and classification. A city can prohibit a certain type of manufacturing within a certain area without leading to an unconstitutional taking of property under the Fifth Amendment. https://supreme.justia.com/cases/federal/us/239/394/