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Planning: PL 8.3710 - Public and community facilities, public service institutions, colleges and universities, schools, cultural facilities, NIMBY, essential public facilities, institutional zoning district, public zoning district

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  1. Request for information on regulating and siting essential public facilities such as group homes, secure residential treatment facilities, and correctional or work release facilities.

    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.200WAC 365-196-550, WAC 365-196-560, and WAC 365-196-570. 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". Also, GMA county comprehensive plan rural elements “shall provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses” as per RCW 36.70A.070(5)(b).

    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 issues related to EPFs. Each of the three boards has a Digest of Decisions posted on their respective Web pages. Each Digest of Decisions contains a keyword directory section that lists cases by category, including essential public facilities. The Digests also contain an Appendix with a list of hearing board cases that have been appealed to the courts. The main Growth Management Hearings Boards Website has links to Web pages for each of the three regional hearings boards where Digest of Decisions are posted.

    Also, MRSC has several related Web pages that may be of interest, including Secure Community Transition Facilities, and Siting Major Energy Facilities.

    Here are some local jurisdiction examples of processes for general siting of essential public facilities:

    County EPF Siting Examples

    City EPF Codes

    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." Also see WAC 365-196-570 - Secure Community Transition Facilities - Requirements.

    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.

    Work Release and Correctional Facilities

    Local correctional facilities and group homes 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, Central Puget Sound Growth Management Hearings Board Case No. 00-3-0007, Final Decision and Order (11/20/00).

    RCW 70.48.190 gives cities the specific authority to locate and operate holding, detention, special detention, and correctional facilities any place designated by the city legislative authority 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 and counties in the siting of essential county-wide, regional, and state facilities, the specific authority of RCW 70.48.190 controls. 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.

    Group Homes, 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, RCW 35A.63.240 & RCW 36.70.990, 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; RCW 35A.63.149; RCW 36.70.755) 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 and for counties in RCW 36.70.757. 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.

    Examples:

    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, 127 Wn.2d 782,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



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