- Request for information on regulating essential public facilities such as group homes, secure residential treatment facilities, and halfway houses.
Adult Family Homes and Family Day Care Homes
A local jurisdiction's ability to regulate some types of group homes is particularly limited by (1) RCW 70.128.175 relating to adult family homes and residential care facilities, (2) RCW 35.63.220, regarding persons with handicaps, and (3) the 1988 Amendments to the Fair Housing Act.
RCW 70.128.175 basically pre-empts local control over adult care facilities which provide in home care, room and board to a small number of individuals. These facilities cannot be regulated as conditional uses. The statute doesn't pre-empt local regulation of residential care facilities which house 5-15 functionally disabled individuals. However, the statutory provision for a review of need for such facilities (RCW 35.63.140) may imply that if cities are failing to provide for them, the state will pre-empt local regulation. A DCD model ordinance does make residential care facilities permitted uses in residential zones.
In addition, the Fair Housing Act Amendments (FHAA) provide that local zoning laws can't have the effect of discriminating against the disabled, which may include some elderly residents. Provisions for special use permits, dispersion rules and limits on the number of residents in group homes are open to challenge. As a general rule, regulations can't treat housing for the disabled differently than other residential uses.
Dispersion requirements for group homes have been upheld in Minnesota where based on an adopted state policy of integrating group home residents into the community. However, in this state, the U.S. District Court did ot find Bellevue's dispersion requirements to be justified. An article by Ted Gathe, City Attorney of Vancouver, "Group Homes: Local Control and Regulation Versus Federal and State Housing Laws," provides an excellent summary of federal and state limitations on local regulation of group homes. It also includes sections on court decisions related to dispersion requirements, including the recent Bellevue case. It is the most recent commentary we have on this subject.
The state has preempted some local control over siting of family day care homes (children). New legislation was enacted as Ch. 273, Laws of 1994 and is codified for non-code cities in RCW 35.63.185 and for code cities in RCW 35A.63.215. The legislation applies to family day care facilities, where day care is provided in the provider's home for six or fewer children. It does not preempt the authority to zone for "mini"-day care centers providing care for more than twelve children outside the family home.
See also MRSC's "Group Homes" Web page.
Essential Public Facilities
Essential public facilities (EPFs) include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
Both cities and counties must develop criteria for the siting of EPFs as per RCW 36.70A.200 and WAC 365-195-340. RCW 36.70A.103 requires that "state agencies shall comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to this chapter." On the other hand, RCW 36.70A.200 states that "no local plan or development regulation may preclude the siting of essential public facilities" which include difficult to site facilities such as state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
Taken together, it appears that a city does have zoning control over EPFs, but may not, through zoning, prevent siting of facilities which meet the definition of "essential public facilities." Some zoning restrictions apparently are possible, but not if the effect of these restrictions is to effectively preclude any EPFs from locating within the city.
The Growth Management Hearings Boards have addressed some issues related to EPFs. You may want to look at the Digests of Decisions (2nd Ed.) for the respective boards for cases of interest. The Digest of Decisions for each of the boards contains a keyword directory section that lists cases by category, including essential public facilities. Each Digest also contains an Appendix with a list of hearing board cases that have been appealed to the courts.
Here is some information on processes for general siting of essential public facilities, including sample comprehensive plan policies and zoning provisions.
Excerpts from Comprehensive Plans on essential public facilities:
Excerpts from municipal codes on essential public facilities:
Correctional Facilities (Jails, Work-Release, and Others)
Jails ("local correctional facilities") are by statutory definition considered to be essential public facilities and consequently subject to the provisions of RCW 36.70A.200.
The Central Puget Sound Growth Management Hearings Board was asked to determine if the city of Tacoma had complied with the siting requirements of this statute when it adopted development regulations excluding work release facilities from all areas of the city except for a heavy industrial zone. The Growth Board ruled that by limiting the location of an essential public facility to an impracticable area the city was "precluding" an essential public facility in violation of the requirements of RCW 36.70A.200. (See: State of Washington Department of Corrections and Department of Social and Health Services v. City of Tacoma, 2000 GMHB Lexis 388, Case No. 00-3-0007 (11/20/00).)
RCW 70.48.180 gives counties the specific authority to locate and operate jail facilities at any place designated by the county legislative authority within the territorial limits of the county, including within the city. (RCW 70.48.190 grants similar authority to cities and allows cities to locate municipal jail facilities within the territorial limits of the county in which the city or town is situated.) While the Growth Management Act's intent is to establish a collaborative process involving cities in the siting of essential county-wide, regional, and state facilities, the specific authority of RCW 70.48.180 controls. While the county would be required to follow the city's permitting requirements, the city could not prohibit the siting of the essential public facility within the city. The city must follow a process for EPF siting that is consistent with the adopted county-wide planning policies.
The city should have some finding re impacts of correctional facilities to justify any proposed restrictions.
Secure Community Transition Facilities
In 2001 (ESB 6151, Chapter 12, Laws of 2001, 2nd Spec. Sess.) and in 2002 (ESSB 6594, Chapter 68, Laws of 2002), the Essential Public Facilities section of Growth Management Act (RCW 36.70A.200) was amended to add a requirement that cities and counties establish a process and adopt regulations for the siting of secure community transition facilities (SCTFs). SCTFs are considered "essential public facilities," and local comprehensive plans or development regulations may not preclude the siting of "essential public facilities."
Please see MRSC's SCTF Web page and information posted on the State Department of Social and Health Services Web site. The MRSC web page includes examples of local ordinances addressing SCTF siting.
Crisis Residential Centers
RCW 74.13.031- 74.13.035 address "Crisis Residential Centers" (CRCs). Apparently, there are no specific requirements about CRCs similar to group homes, but they may fall within "essential public facilities."
Also note these two decisions regarding crisis residential centers:
- Sunderland Servs. v. Pasco, 107 Wn.App.109 (7/3/01) - [Group Care Facility/Special Use Permit] - The City's denial of a special use permit to operate a youth crisis residential center in a residence located in an R-1 zone (that was based upon requirements contained in the City's home occupation ordinance) constituted an erroneous interpretation of the law violating the Washington Housing Policy Act and the Federal Fair Housing Act.
- Sunderland Family Treatment Services v. City of Pasco, Wash. Supreme Court., 10/19/95. In the first appellate ruling on the Washington Housing Policy Act the state Supreme Court has ruled that the anti- discrimination statute's fair housing protections for the handicapped do not extend to "troubled youth" staying in a "crisis residential center" located in a residential neighborhood.
RCW and WAC Definitions and Limitations on Local Regulation
- Request for information on siting of essential public facilities.
Here is some information on procedures for siting of essential public facilities, including sample comprehensive plan policies and zoning provisions: Excerpts from Comprehensive Plans on essential public facilities:
Excerpts from municipal codes on essential public facilities:
- Sec. 12.06.080, Bothell Municipal Code, Essential Public Facilities
- Sec. 22-946.1, Federal Way Municipal Code, Essential Public Facilities
- Sec. 19.68.140, Fife Municipal Code, Siting of Essential Public Facilities
- Sec. 18.04.060(W), Olympia Municipal Code, Public Facilities, Essential
- Sec. 20F.40.80, Redmond Community Development Code, Essential Public Facilities
- Sec. 15.22.035, SeaTac Municipal Code, Siting of Essential Public Facilities
- Ch. 18.56 , Sequim Municipal Code, Essential Public Facilities and Special Property Uses (
1.24 MB)
- Sec. 18.56.260, Tumwater Municipal Code, Essential Public Facilities Siting Process
- Sec. 20.91.247, Essential Public Facilities and Ch. 20.87 Human Service Facilities, Vancouver Municipal Code
Other items of interest on essential public facilities:
- Request for basic pro and con information relating to the Growth Management Act.
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Arguments raised pro GMA |
Arguments raised against GMA |
- Can qualify for growth management and other grants
- Can enact impact fees per RCW 82.02.050
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- Additional cost to the city or county to meet GMA requirements
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- Growth management requires cities and counties to work together to develop common countywide policies and designate urban growth areas
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- Counties decide whether to opt in; all cities within county automatically follow county decision
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- GMA requirement for consistency results in better overall planning
- Growth management provides tools for planning for and phasing growth in a coordinated and thoughtful manner
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- City or county must follow act requirements; less flexibility for city/county; more state oversight of local planning
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- Growth management helps to protect valuable agricultural lands and other resource lands by concentrating development in urban areas and through development regulations
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- Growth management emphasis on urban densities in UGAs is often controversial and may be difficult for small communities
- Growth management policies and regulations support very low densities in rural areas and resource lands outside UGAs; this may be controversial
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- Growth management public involvement helps build support for planning and land use regulation
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- Property rights groups have opposed growth management
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- Helps communities to identify and meet their goals for the future and plan to meet needs. Goals and policies help to improve overall governmental decision processes
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- Communities can do this without GMA and with greater flexibility than allowed by GMA
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- Growth management requires capital facilities planning and plan for how to pay for needed infrastructure
- GMA promotes logical, cost
- effective extension of public facilities.
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- Communities must do capital facilities planning even without GMA
- Cities and counties struggle with finding adequate funding sources for facilities needed to support new growth
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- Growth management helps to improve a community’s livability and retain its distinctive character
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- Some say that growth management is challenging for small, rural counties with limited resources
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- Growth management helps to protect critical environmental areas
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- Critical areas regulations are required even for jurisdictions not fully planning under GMA
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- Growth management requires planning for housing locally and regionally and zone for adequate land supply to meet a range of needs
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- Some say that growth management may increase housing costs if demand outstrips housing supply
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- Growth management provides a framework for protecting historic properties
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- GMA helps ensure continuity in planning over time because of restrictions and requirements relating to amendment of plans
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The following counties are required to plan under GMA: Benton, Chelan, Clallam, Clark, Franklin, Grant, Jefferson, King, Kitsap, Lewis, Mason, Pierce, Skagit, Snohomish, Spokane, Thurston, Whatcom, Yakima
The following counties are voluntarily planning under the GMA: Columbia, Douglas, Ferry, Garfield, Kittitas, Pacific, Pend Oreille, Stevens, Walla Walla
The following counties are not planning under GMA: Adams, Asotin, Cowlitz, Grays Harbor, Klickitat, Lincoln, Okanogan, Skamania, Wahkiakum, Whitman
You might want to contact some of the counties that are voluntarily planning under the GMA to ask them about their experience. Two that we would recommend are Douglas and Walla Walla counties.
The following are links to information regarding growth management in Washington State:
- "A Short Course on Local Planning," March 2006, Planning Association of Washington and Washington State Department of Community, Trade and Economic Development (see "Chapter 3. Growth Management")
- "The Growth Management Act: An Overview," Washington State Department of Community, Trade and Economic Development, CTED Fact Sheet – Brochure
- "Overview of the Growth Management Act," Washington State Department of Community, Trade and Economic Development
- "Growth Management: It's Beginning to Take Shape," Washington State Department of Community, Trade and Economic Development, 1997
- "What is a Comprehensive Plan," Washington State Department of Community, Trade and Economic Development
- "GMA 101: Planning Under the Growth Management Act," Washington State Department of Community, Trade and Economic Development
- "How Growth Management Helps Communities Achieve their Goals, Reports from Local and State Leaders," Washington State Department of Community, Trade and Economic Development, Sept. 2006
- "Creating Livable Communities: Managing Washington’s Growth for 15 Years (Growth Management 15 Year Report)," June 2006
- "Achieving Growth Management Goals: Local Success Stories (3.77MB) ," Washington State Department of Community, Trade and Economic Development, December 2000
- "Comprehensive Plan Checklist," Washington State Department of Community, Trade and Economic Development
The chapter on growth management in the "Short Course on Local Planning" provides a good summary of growth management and the Growth Management Act.
- Does the Growth Management Act (GMA) require that cities have an average density of four houses per acre?
The GMA does not have a specific requirement for a minimum or an average density of four houses per acre in urban areas. It does have goals that direct local jurisdictions to reduce low density sprawl, and it has requirements for the establishment of urban growth areas where urban densities are encouraged. Although a series Growth Management Hearings Board cases established a "bright line" of four units per acre as a minimum appropriate urban density, the state supreme court subsequently ruled that the boards do not have the authority to make public policy and establish such a "bright line" rule. Viking Properties v. Holm, 155 Wn.2d 112 (2005).
- May a city refuse a request for utility service outside its boundaries but within its UGA and where the city's water and sewer service area plan defines the city's water and sewer service area as its UGA?
Although the Growth Management Act (GMA) contemplates that a city is the appropriate provider of utility services within its Urban Growth Area (UGA), the city is not obligated by the GMA to so provide at any particular time. A city likely wants to control how and when urban growth occurs within the UGA. So, providing or not providing urban services is a basic tool of this control. There is no language in the GMA that takes this tool away from cities or that obligates cities to provide urban services to an area on demand simply because it is within the UGA.
Nevertheless, a city may be obligated to provide utility (water or sewer) service outside its boundaries but within the UGA based on rules developed by case law. The general rule is that, in the absence of a contract, express or implied, a municipality cannot be compelled to supply water outside its boundaries. Brookens v. Yakima, 15 Wn. App. 464, 466 (1976). So, if there is an express contract to provide utility service, a city is contractually obligated to provide that service. An implied contract can arise "where a municipality holds itself out as a public utility willing to supply all those who request service in a general area." Brookens, 15 Wn. App. at 466-67. A city may also have a duty to supply water or sewer service "where a city is the exclusive supplier of sewer or water service in a region extending beyond the borders of the city." Yakima County Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 381-82 (1993).
But that duty, if it arises, is not absolute; a city may deny water or sewer services if it lacks the needed capacity. Yakima Fire Prot. Dist., 122 Wn.2d at 382. Also, the duty to provide the service is "subject to such reasonable conditions, if any, as the law may allow." Id. An example of such a reasonable condition, as was presented in the Yakima case, is that the property owner agree to annexation.
A case where a Washington appellate court found a duty to supply utility service within the entire UGA was in Nolte v. City of Olympia, 96 Wn. App. 944 (1999), where the city admitted that it was the sole provider of water and sewer service to the UGA.
The bottom line answer is "it depends." The fact that the city's adopted water and sewer service area plans are defined as their UGA boundaries may be a factor in favor of there being a duty to supply those services.
- Request for information on experiences of cities and counties with who signed interlocal agreements to manage development review and planning for their urban growth areas.
Growth Management Interlocal Agreements regarding Urban Growth Areas: A Summary of Issues
Revised September 3, 2003
The following is a summary of city and county experiences with growth management interlocal agreements for development review and planning within the UGA. This information is based on interviews with city and county planners and on MRSC review of sample agreements.
Basic Advice - Keep the agreements simple and keep on talking - coordination and cooperation are essential, especially at the staff level (Olympia, Lynnwood). Douglas County recommends getting an agreement in place, even if it is not perfect, because the agreement can be amended as needed. Commitment to the provisions of the agreement is also essential and has been a problem in a few instances.
Counties and cities where interlocal growth management agreements are generally working particularly well:
- Douglas County - East Wenatchee
- Thurston County - Olympia, Tumwater and Lacey
- Whatcom County - Bellingham
- Yakima County - Yakima and Grandview
In most cases, cities are more positive about interlocals than counties, because the benefits to cities are more obvious, although counties can gain from revenue sharing agreements as well. The agreement typically clarifies and in some cases simplifies the annexation process, which brings more revenue to the city and results in a loss of county tax base. The interlocals require counties to implement city policies and standards and typically complicate the county's development review process. The interlocal agreement process also works more smoothly in smaller counties with fewer cities and towns because less coordination is involved and development review processes are typically simpler. Some counties, such as Snohomish and Pierce, have very large unincorporated UGAs, which further complicate the situation. King County, by contrast, has less unincorporated land in the UGAs, partly due to new incorporations since the GMA was enacted.
In Douglas County, the success of the interlocal agreement with East Wenatchee has provided a stepping stone to other cooperative efforts between the city and county.
Coordination
Coordination at the planning staff level is generally good (Skagit, Whatcom, Thurston, Yakima, others). In Thurston County, city and county department heads meet once a month; staff meet as needed (sometimes weekly to review major development projects). The city staff acts as consultant to the county. In Snohomish County, Snohomish County Tomorrow is a collaborative interjurisdictional forum that includes representatives from all cities, the county and the Tulalip tribe. The planning directors meet monthly.
Continuity of Support from Elected Officials
Changes in elected officials have been problematic for interlocal growth management agreements in many counties; county support for the interlocals is essential and is difficult to obtain because county officials view the interlocal as a loss of control (as well as lost revenue when annexation occurs). There is an issue of representation. Unincorporated UGA residents vote for county commissioners or councilmembers but are essentially being regulated by city councils if the county follows city standards in the UGA.
County Permit Processing using City Standards
In most cases when interlocal agreements are adopted, the county processes development permits using city standards, although Snohomish County and Whatcom County are exceptions. Some counties would like to develop a single set of urban standards for all unincorporated UGAs for cities within the county. Snohomish County has developed uniform urban standards for unincorporated UGAs, but there is an issue with design guide ines from cities that have not been adopted by the county. (Snohomish County's standards are not yet adopted.) Snohomish County also has an urban centers demonstration code that has been very well received and is being implemented on a voluntary basis in two areas within the county's southwest UGA. This code encourages mixed-use development at urban densities and provides some flexibility for innovative transit-oriented urban development projects. (See Snohomish County Code, Chapter 30.34A - Urban Centers Demonstration Program .
In Thurston County, Lacey, Tumwater and Olympia each provided 75% of the funding for a draft county ordinance addressing each of their respective development standards. The use of city standards is important so that the new development in the UGA, which will eventually become part of the city, will have the look and feel of city development. Having the same street standards is especially important. Without similar standards, it would likely be less expensive to build in unincorporated UGAs, and this would encourage sprawl rather than the compact urban growth as envisioned by the GMA. One of the problems has been getting city and county fire departments to accept the same standards.
In the Bellingham UGA in Whatcom County, certain city standards have been used for some permits (such as subdivisions) but not others (building permits). Bellingham has a history of extending sewer and water service outside the city boundaries. In the future, Bellingham will require new development in its unincorporated UGA to meet city standards in order to extend services or only rural densities will be allowed.
Common service standards are more of problem for large counties which must deal with varying city standards for the multiple city UGAs within a single county. Some counties wish that they had developed a single county-wide standard for urban development outside cities rather than adopting the standards of each individual city (Skagit and Thurston).
Common Zoning
This is similar to the standards issue. Zoning districts vary among jurisdictions, and this has also been problematic for counties when varying city zoning districts and/or development standards are adopted within the UGA. Most counties retain the county zoning in the unincorporated UGA until the time of annexation, but Thurston County is an exception. Thurston County has adopted city zoning regulations within UGA but would have preferred a single set of urban zoning districts for all unincorporated UGAs to simplify administration. Thurston has also developed a single county-wide zoning standard for home occupations and cell towers.
Interlocal Agreements Will Not Solve All Growth Management Issues between a County and its Cities
In some cases cities and counties haven't been able to reach agreement on service standards, revenue sharing or other issues, and have agreed to disagree. (For instance, Thurston County did not adopt Olympia's park plan). Adjustment is needed as plans and development regulations change, and actual development occurs.
Revenue Sharing
One of the big stumbling blocks is the issue of revenue-sharing between cities and the county (Clallam, Snohomish, Thurston, Whatcom, and Yakima). So far, this has mostly been handled on a case-by-case basis associated with a particular annexation request, such as in the case of city contribution for a major county capital improvement, such as a road project. The East Wenatchee - Douglas County interlocal agreement ( 65 KB) and the Walla Walla City and County Urban Area Growth Management Agreement ( 1.8 MB) are among the few that address revenue sharing. Douglas County is pleased with the fact that the interlocal agreement recognizes county financial interests. The mediated revenue sharing agreement between Moses Lake and Grant County is another example. The Clark County-Vancouver agreements for the Van Mall development are a good example of past revenue sharing agreements.
For more information, MRSC has a Web page that addresses Annexation Agreements - Revenue Sharing .
The issue of assessing impact fees to finance services within a city's unincorporated UGA is sometimes problematic because counties are generally more reluctant than cities to impose impact fees.
Annexation Issues
Annexation is a problem because it has not occurred as quickly as anticipated in most counties. Some of this is due to the Moses Lake court decision (which has been partially addressed by new annexation legislation), and some is due to boundary review boards (BRBs) and their requirements. The boundary review board is a particular problem in Skagit County. BRBs have been used as a way to organize opposition to annexation (Skagit County). There also is a need for a simplified approach to annexation for unincorporated islands (Thurston County). (Note: There is a new law (SHB 1755) that provides for an alternative approach to the annexation of unincorporated islands. This option provides for an interlocal agreement between the county and city and is only available in counties subject to buildable lands review and evaluation under the GMA.)
Snohomish County has developed a master interlocal agreement for annexation and prepares an interlocal agreement with a city when an annexation involves 50 acres or more.
Some cities will not extend sewer and water service to unincorporated areas without annexation (Snohomish, Skagit). This may reflect the aftermath of the Moses Lake decision, because many cities used outside utility agreement prior to the court decision. There is a potential impasse in Skagit County related to a pending Growth Management Hearings Board decision (Anacortes). Because the Skagit County BRB is a major impediment to annexation, in the future Skagit County may not allow construction in UGAs until annexation occurs. This may place the onus on the developer rather than the city to move forward with annexation.
In Douglas County, the most recent annexation to East Wenatchee was approved by a large majority at an election. The county planning director feels that the cooperative attitudes between the city and the county, including the interlocal agreement, have had a lot to do with strong local support.
The adoption of interlocal agreements in King County has not proceeded as originally envisioned. (The county only has one interlocal with Auburn) Instead, the county has adopted a map showing annexation areas as part of countywide planning policies. This has helped to resolve overlapping annexation areas and identify gaps in unincorporated UGAs. From the county's perspective, this is a much simpler approach than adopting multiple interlocals, since King County and its cities had reached a deadlock in developing interlocal agreements. (Since this was originally prepared, King County has offered a one-time financial incentive to cities to annex unincorporated urban islands .
Snohomish County is in the process of adopting a map of annexation area boundaries for the nine cities in the Southwest County UGA. This has been a several-year process involving extensive coordination between the county and the cities.
Subarea Planning
Until recently Snohomish County was preparing subarea plans within its unincorporated UGAs and processing development permits within the unincorporated UGAs using county standards. In general, the subarea planning process was contentious and unwieldy Recently the county stopped developing subarea plans within unincorporated UGAs associated with cities and is relying on the cities to do this planning instead.
Staff Transfers
Another issue involves transferring staff as part of the annexation process. This is a somewhat touchy issue and is relatively untested at this point. In 1996, Clark County and Vancouver signed a memorandum of understanding regarding interagency personnel transfers for a large annexation area.
Other Issues
Another more minor concern is the transfer of county records to the annexing city (Douglas County). According to public records retention requirements, county records must remain with the county even though the city needs the information for annexed property. In Douglas County, the city is responsible for copying files or requested records.
Skagit County has a procedure for six-month updates to city regulations and UGA boundaries to keep boundaries and standards up-to-date. This has been a record-keeping nightmare for the county.
In Whatcom County, the agreement with Bellingham is amended every time a new annexation occurs.
Jurisdictions are using plan updates as a time to refine interlocal agreements for UGAs. In Douglas County, all cities are working with the county to develop a joint plan as part of the plan update.
Jurisdictions and Individuals Contacted
| Jurisdiction |
Name |
Phone |
| Clallam County |
|
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| Port Angeles |
Brad Collins |
360-457-0411 |
| Douglas County |
Mark Kulaas |
509-884-7173 |
| E. Wenatchee |
Lori Barnett |
509-884-9515 |
| King County |
Paul Reitenbach |
206-296-6705 |
| Skagit County |
Tom Karsh & Kirk Johnson |
360-336-9410 |
| Anacortes |
Ian Munce |
360-293-1900 |
| Snohomish County |
Mary Lynne Evans, Karen Watkins, Michael Zelinski, Richard Craig |
425-388-3311 |
| Lake Stevens |
John Jimerson |
425-334-1012 |
| Lynnwood |
Ron Hough |
425-670-6655 |
| Thurston County |
Fred Knostman |
360-709-3013 |
| Olympia |
Subir Mukerjee |
360-753-8497 |
| Whatcom County |
Sylvia Goodwin |
360-676-6907 |
| Bellingham |
Greg Aucutt |
360-676-6982 |
| Yakima County |
Steve Erickson |
1-800-574-2230 |
| Yakima |
Doug Maples |
509-575-6000 |
Sample Agreements
Here are some Web links that may interest you - Most are links to actual agreements. The Snohomish County Web pages are particularly interesting, although they deal mostly with annexation agreements rather than more general agreements for areas that may not be annexed in the near future.
Douglas County
Interlocal agreement between East Wenatchee and Douglas County regarding annexation delivery of services and revenue sharing ( 65 KB)
King County
Interlocal agreement between King County and Auburn related to potential annexation area designation and future service provision ( 240 KB)
Skagit County
Skagit County Interlocal Framework Agreement ( 81 KB)
Skagit County and Mount Vernon Interlocal Agreement ( 2.6 MB)
Whatcom County
Bellingham and Whatcom County Interlocal Agreement ( 3.2 MB)
- Must a city or county subject to the Growth Management Act have a separate transportation concurrency ordinance or may it use SEPA and other existing ordinances to implement concurrency?
Although RCW 36.70A.070(6)(b) requires local jurisdictions subject to the GMA to adopt and enforce transportation concurrency ordinances, the statutes are not specific about the type of ordinance necessary to implement concurrency. Many cities are adopting separate concurrency ordinances to implement their concurrency program, but a few are relying primarily on SEPA. Whether a local jurisdiction chooses to implement concurrency through its SEPA regulations or another part of its code, the development regulations should include specific concurrency language that prohibits development when level of service standards for transportation facilities cannot be met. See RCW 36.70A.070(6)(b). In addition, a Western Washington Growth Management Hearings Board case indicates that local jurisdictions should spell out their methodology for assuring concurrency compliance either within their comprehensive plans or development regulations.
- What are capital facilities?
A capital facility is a structure, street or utility system improvement, or other long-lasting major asset, including land. Capital facilities are provided for public purposes. Including, but not limited to, the following: streets, roads, highways, sidewalks, street and road lighting systems, traf ic signals, domestic water systems, storm and sanitary sewer systems, parks and recreation facilities, schools, and police and fire protection facilities. These capital facilities include necessary ancillary and support facilities.
- What must be included in a capital facilities plan element?
Each comprehensive plan prepared under the GMA must include a capital facilities plan element.
Section 7(3) of the GMA states the following:
A capital facilities plan element must consist of:
(a) An inventory of existing capital facilities owned by public entities, showing the locations and capacities of the capital facilities;
(b) A forecast of the future needs of such capital facilities;
(c) The proposed locations and capacities of expanded or new capital facilities;
(d) At least a six-year plan that will finance such capital facilities within projected funding capacities and will clearly identify sources of public money for such purposes; and
(e) A requirement to reassess the land use element if probable funding falls short of meeting existing needs and to ensure that the land use element, capital facilities plan element, and financing plan within the capital facilities plan element are coordinated and consistent.
- Should the capital facilities plan be prepared for the city or for the entire urban growth area?
MRSC recommends that the capital facilities element plan be prepared for the entire urban growth area. This would seem to be in keeping with the intent of the Growth Management Act to help cities prepare for growth in their urban growth areas.
- Should the inventory of public facilities be limited to just city-owned facilities?
No. The inventory of public facilities should include all public facilities, and should not be limited to city-owned facilities. This would include school and park district property, state property, and other publicly-owned facilities.
- Is a capital facility plan required before expending Growth Management Act real estate excise tax (REET) funds?
For the first quarter percent REET money, the initial language in the 1990 GMA was that these funds could be used primarily for capital projects in a capital facilities plan element. The 1992 revisions changed that language to solely for capital projects in a capital facilities plan element. More detailed information on the real estate excise tax is available on a separate Web page.
- Must an interim capital improvements plan be fully funded?
RCW 82.02.050(4) states that impact fees "may be collected and spent only for public facilities defined in RCW 82.02.090 which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to provisions of RCW Chapters 36.70A.070, 36.70, 35.63, or 35A.63." Although the capital facilities plan element adopted under the provisions of the GMA must clearly demonstrate probable funding sources for proposed capital improvements, there is no mention of such a requirement for a capital facilities plan element adopted pursuant to either of the earlier statutes. It appears from our review that impact fees could be expended based on an interim capital facilities plan adopted pursuant to Chapters 35.63 or 35A.63 RCW without being fully funded.
- How can a city establish level-of-service standards for roads that would ensure adequate circulation without closing down development in urban growth areas?
Some communities are using standards to measure overall mobility rather than simply road capacity. Although roads may be more congested in high density urban areas, overall mobility may still be adequate where transit and pedestrian facilities meet some of the circulation needs. Thus, a lower level-of-service could be justified for roads in target urban growth areas than in other areas with fewer transportation options.
- What are Critical areas?
The GMA contains a provision requiring cities and counties to designate and take measures to protect natural areas of critical ecological value. These critical areas include: wetlands; areas with a critical recharging effect on aquifers used for potable water; fish and wildlife habitat conservation areas; frequently flooded areas; and geologically hazardous areas.
- What are notice and hearing requirements for adoption of critical areas ordinance for Growth Management Act?
The GMA does not add any specific notice and hearing requirements to the existing requirements with respect to adoption of development regulations such as a critical areas ordinance.
However, RCW 36.70A.140 requires that cities planning under the act "establish procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans." If the city has a public participation plan in place, it should be followed. Otherwise, the city should follow the procedures established for adoption of development/zoning regulations. (See RCW 35.63.100, RCW 35.63.120, RCW 35A.63.100, RCW 36.70.580 and RCW 36.70.590 for other notice and hearing requirements preceding GMA.)
- May a city adopt performance standards to comply with growth management requirements for critical areas designation?
The Central Puget Sound Growth Management Hearings Board concluded in Gutschmidt v. Mercer Island that a city can adopt performance standards, rather than detailed prescriptive standards and mapping, to comply with GMA requirements for critical areas designation. For example, a city may require individual property owners to submit reports and surveys that enable the city staff to determine whether critical areas exist on the property. Instead of utilizing detailed mapping, a city may establish definitions and narratives that characterize what lands constitute critical areas.
- What is the legality of downzoning for critical areas protection?
Downzoning is the practice of rezoning an area from a more intensive use to a less intensive use. It is not inherently unlawful to downzone. The fact that the property may not have as great a value after the rezone does not invalidate the rezone action or necessitate the payment of damages by the city.
While property owners must be allowed some reasonable use of their property, a city does have a right to change zoning in order to prevent a harm or protect critical areas, even if in so doing the property value is diminished.
Nevertheless, a city must carefully evaluate whether a proposed downzone might constitute an unconstitutional taking of private property. If application of critical area guidelines or regulations to a particular piece of property would prevent development on the property to such extent that the property owner is denied "all economically viable use of any parcel of regulated property," the city may be liable for damages for a taking of the property, whether the taking is temporary or permanent. Any environmental regulation should be based on a sound comprehensive planning process and supporting background studies.
- What are urban growth areas (UGAs)?
Urban growth areas are those areas, designated by counties pursuant to RCW 36. 70A.110, "within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature." Within these UGAs, growth will be encouraged and supported with adequate facilities. Areas outside of the UGAs will be reserved for primarily rural and resource uses.
- How are urban growth areas established?
RCW 36.70A.110, enacted as part of the GMA, indicates that urban growth areas are to be "[b]ased upon the population forecast made for the county by the Office of Financial Management." OFM is to prepare a reasonable range for its population projections for counties, with the middle range represent ng the most likely population projection for the county. The county is the body that designates UGAs, and the statute does mandate that the county must consult with cities in an attempt to reach agreement on the location of these urban growth areas.
- Must counties meet with cities before establishing urban growth areas?
Yes. RCW 36.70A.110 mandates that the county attempt to reach agreement with each city on the location of urban growth areas. Cities are to propose urban growth areas and can object formally to the Department of Community, Trade and Economic Development (DCTED) if they disagree with the county designation. The county must also meet with cities to establish a collaborative process for adoption of county-wide planning policies including UGA policies. This process is to develop a framework for counties and cities to adopt all procedures and provisions including desired polices, deadlines, and notification of final agreement.
RCW 36.70A.110(5) requires that counties designate IUGA prior to adopting their final comprehensive plans, which are to include adoption of final UGAs. Presumably, this is intended to help cities and counties work out their differences before final plan adoption.
- Should communities provide additional land supply beyond that needed to exactly accommodate the 20-year growth projection?
The GMA requires that cities reevaluate their UGAs at least every 10 years to assure a continued 20-year land supply. In theory, if undevelopable lands have been excluded from the UGA, there should always be 10 to 20 times the supply needed to accommodate growth in any given year. This should be enough to provide market choice and to avoid pushing up land and housing costs.
Recognizing that growth pressures and market conditions can change over the course of 20 years, it will be important to monitor and reevaluate land supply more often than the 10 years required by the GMA. Land supply should probably be reviewed every three years, if not annually, to avoid surprises. King, Pierce, Snohomish, Kitsap, Clark and Thurston Counties, and the cities within these counties, must provide for annual collection of data on growth, development densities, and related information and evaluate such data at least every five years to assure that there is an adequate supply of buildable land to accomodate projected growth and meet county-wide planning policy objectives. Some communities may not be able to monitor land supply regularly, or will not be confident about growth projections or land use information. RCW 36.70A.110(2) does allow counties to include "a reasonable land market supply factor" in sizing the UGA. The Central Puget Sound Growth Management Hearings Board has stated that if the market factor exceeds the land supply needed to accommodate OFM's 20-year growth projection by more than 25%, the board will increase its scrutiny of the UGA designation. There appears to be no single right answer since growth pressures and the quality of land use data will vary from place to place. The answer may be to set a boundary that can be expanded and to monitor supply closely.
- Does the drawing of urban growth boundaries increase property costs?
If drawn too tightly, urban growth boundaries could contribute an increase in property costs. A major reason for providing adequate land supply and monitoring that supply is to avoid a substantial increase in property costs or an imbalance between land supply and demand.
- What are communities doing to phase growth within urban growth areas?
Pierce County and Port Townsend/Jefferson County, WA are exploring the use of growth phases or tiers within its UGAs. Communities in other states offer some tested examples of growth phasing techniques. The Twin Cities, Minnesota Metro Area and Summit County, Utah (Park City-Snyderville Basin vicinity) have implemented a similar system. The Summit County system limits development in its second and third tiers to 25 to 50 percent of t e units allowed once the area becomes first tier. To develop at 50 percent, the developer must provide all major facilities needed to serve the development. The Twin Cities Metro Area uses tiers as a basis for tailoring different growth management strategies to different geographical policy areas. For instance, in the city centers (tier I), the emphasis is on redevelopment, in other fully developed areas (tier II) the emphasis is on infill, and in developing areas the emphasis is on rounding out available facilities. Special strategies can be applied to freestanding centers (tier IV), which have their own infrastructure systems and which serve rural areas. Use of tiered urban growth areas or other phasing strategies also can help assure that concurrency requirements don't tend to push development outward into areas where roads and other infrastructure have greater capacity.
Clark County, WA and some cities within the county have established urban holding zones within UGAs, applying 10 or 20 acre minimum lot sizes until concurrency requirements are met. The Western Washington Growth Management Hearings Board found the county's use of holding zones to be acceptable.
The Oregon Department of Land Conservation and Development has developed interesting recommendations for growth phasing within the UGA. With this approach, local government would provide off-site urban service facilities within the UGAs with the goal of adding fully-served land to the urban land supply. All such public investment would be primarily in focused "public investment areas (PIAs)" within the UGAs. To develop outside the PIAs, even though still within the UGAs, a developer would need to provide all facilities at his or her own expense. This approach has successfully worked to focus development in Salem.
- Can cities gain authority to administer their regulations within the urban growth area?
Counties still have the official land use authority within the unincorporated urban growth area. County-wide planning policies allow cities to influence policy direction for UGAs. Cities in this and in other states have extended their influence within the UGA through agreement within the counties. Agreements can cover matters such as joint planning within the UGA, agreement on annexation policies, adoption of city standards within the UGA, restrictions on development until urban services are in place, and city review and comment on major development within UGAs.
- May a city require development in urban growth areas to conform to city standards in exchange for provision of utility services?
MRSC is of the opinion that, absent some existing contract to extend utility service to areas within the urban growth area, the city may, as a condition of providing utility service outside its limits, require that development within the area served conform to city land use standards. (Please note that if city standards are less restrictive than county standards, county agreement would be necessary).
In short, the provision of utility services to property outside the city's limits would be contractual, the terms of the contract being the agreement between the city and the developer. Outside of such a contract, there is little the city may do regarding compliance with city standards or the provision of impact fees, absent cooperation and agreement with the county. A city may also enter into an interlocal agreement with a county to apply city zoning and standards outside of the city and within the UGA. Thurston County has such an agreement with several of its cities.
- Does the Growth Man-agement Act (GMA) discourage agricultural land designation within urban areas?
RCW 36.70A.060(4) states that "agricultural land located within urban growth areas (UGAs) shall not be designated by a county or city as ... agricultural land of long-term commercial signifi-cance ... unless the city has enacted a program authorizing transfer or purchase of development rights (TDR or PDR)." The purpose of this provi-sion is apparently to hold urban growth area land for urban needs rather than resource production and to avoid spread out patterns that are expensive to serve.
There might be several ways that agricultural lands within UGAs might be consistent with GMA direction: (1) the agricultural land is permanently protected as a part of the city's open space system with such programs as TDR or PDR, or (2) the land is held temporarily in low intensive uses such as agriculture until facilities and services are avail-able and the land is needed for urban uses.
- Must comprehensive plans prepared under GMA provide substantive policy direction for development regulation?
Yes. A GMA city must adopt a comprehensive land use plan which states the city's land use policy. Cities are also required to enact development regulations which are "consistent with and implement the comprehensive plan . . . and (cities) shall perform their activities and make capital budget decisions in conformity with their comprehensive plans" (RCW 36.70A.120). The Procedural Criteria for Adopting Plans and Development Regulations (Ch. 365-195 WAC) interpret that "implement" connotes "not only a lack of conflict but sufficient scope to carry out fully the goals, policies, standards and directions contained in the comprehensive plan." The Central Puget Sound Growth Hearings Board (CPSGHB) held in Case No. 92-3-0004 that county-wide planning policies provide substantive and directive policy to the comprehensive plans of cities and counties "which in turn provide substantive direction to the content of local land use regulations, which govern the exercise of local land use powers, including zoning, permitting and enforcement" (page 17). The Board also noted in the same case that the use of either "should" or "shall" in a GMA policy document must be construed to have directive meaning . . . the difference in meaning between 'shall' and `should' is now one of degree rather than kind" (page 14).
- May a city designate agricultural lands within its urban growth area?
RCW 36.70A.070 (4) states that "Forest and agricultural land located within urban growth areas (UGAs) shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights (TDR or PDR)." The intent seems to be to reserve limited UGA land with potential for urban services for urban uses rather than long-term resource use. It may also be designed to avoid spread out development patterns that are expensive to serve. There are several ways that agricultural lands within UGAs might be consistent with GMA direction: (1) the agricultural land is permanently protected as a part of the city's open space system with such programs as TDR or PDR, (2) the land includes extensive critical areas that will be better protected in agricultural use than in urban use, or (3) the land is held in low intensity uses such as agriculture until facilities and services are available and the land is needed for urban uses. This would be consistent with WAC 365-195-060(5) which states that "Provisions shall be made for the phasing of development within each UGA to ensure that services are provided as growth occurs."
- May a city set level-of-service standards below the level used as a basis for impact fees?
Although this issue is not directly addressed by the GMA, there is a strong case against pursuing such a policy. Impact fees are frequently the subject of litigation, and such a policy may be inviting a challenge. By definition, level-of-service standards should define the level of facilities and services that meet a community's needs and are acceptable to a community. "Level-of-service" is defined in WAC 365-195-210 as "an established minimum capacity of public facilities or services that must be provided per unit of demand or other appropriate measure of need." It would be diffic lt to justify impact fees that require a developer to pay for more than what a city's standards indicate are needed. RCW 82.02.050 (1)(c) states that it is the legislature's intent "to ensure that impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees." Fees not related to the adopted city standards could be considered arbitrary. A city can still aspire to a higher level of services than its minimum standards would provide, but it is unlikely that a city can require a developer to pay for a level that exceeds its standards.
- Does the Growth Management Act (GMA) require concurrency for sewer and water?
The word "concurrency" appears in RCW 36.70A.070 which clearly requires concurrency for arterials and transit. There is no specific requirement that other types of facilities be provided "concurrent" with development elsewhere in GMA. However, the goal statement in RCW 36.70A.020 suggests that adequate public facilities requirements for other types of public facilities and services may be appropriate. Also, RCW 58.17.110 requires that "adequate provision" be made for a long list of public facilities and services including potable water and waste disposal. Most cities appear to be specifically including transportation-related facilities, which are most clearly addressed by GMA, in their concurrency provisions. Clark County and Tacoma are two examples of Washington jurisdictions that are considering requiring concurrency for water, sewer and stormwater facilities. There are also many out-of-state examples of communities that require that a range of facilities be adequate at the time of development, including Florida and Maryland cities.
- Must the city have a separate concurrency ordinance or may it use SEPA and other existing ordinances to implement concurrency?
Although RCW 36.70A.070(6)(b) requires local jurisdictions to adopt and enforce concurrency ordinances, the statutes are not specific about the type of ordinance necessary to implement concurrency. Many cities are adopting separate concurrency ordinances to implement their concurrency program, but a few are relying primarily on SEPA.
Whether a local jurisdiction chooses to implement concurrency through its SEPA regulations or another part of its code, the development regulations should include specific concurrency language that prohibits development when level of service standards for transportation facilities cannot be met. The Growth Management Act (GMA) requires that:
Local jurisdictions must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a locally owned transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvement or strategies to accommodate the impacts of development are made concurrent with the development. RCW 36.70A.070(6)(b).
In addition, a Western Washington Growth Management Hearings Board case indicates that local jurisdictions should spell out their methodology for assuring concurrency compliance either within their comprehensive plans or development regulations. Taxpayers for Responsible Government v. City of Oak Harbor, WWGMHB No. 92-2-002, Final Decision and Order, July 16, 1996. Referring to Goal 12 of the Growth Management Act (RCW 36.70A.020(12)) the Board stated that:
In order to comply with this portion of the Act a local government must not only state what it plans to do but also how. This can be done in the context of a comprehensive plan, development regulations or a combination of both. The critical factor involves a specific articulated methodology to reasonably assure compliance with concurrency.
- Must cities or counties planning under the GMA include economic development elements in their comprehensive plans before the state provides funding for this?
The Washington Growth Management Act (GMA) encourages economic development consistent with adopted comprehensive plans. SS