Thurston County v. WWGMHB
Holdings:
- Any person that comments on a part of a comprehensive plan may challenge the final plan in regard to that part.
- Every part of a comprehensive plan is open for challenge after a complete update, even if the those parts were left unchanged from the previous plan.
- In determining Agricultural Lands: parcel size may be considered, but the actual use of the land may not be relied on.
- If a jurisdiction draws its UGAs(“Urban Growth Areas”) assuming that some land within the UGAs will not be developed, then it must explain the basis of that assumption.
- Once resource and residential lands were removed, Thurston County failed to provide a variety of rural densities since all remaining lands were zoned for one residence every five acres. Relying on private action to maintain density variety is unacceptable.
Discussion:
Thurston County contested Futurewise’s (formerly 1000 Friends of Washington) successful challenge to the most recent update of the county’s comprehensive plan. Thurston was one of the county’s required to update its comprehensive plan during the first round of 7 year updates in 2004. See RCW 36.70A.XXX. Tim Trohimovich, an employee of Futurewise, provided both written and oral testimony during the update process, but was unsatisfied with the integration of his comments into the final plan. Futurewise prevailed in front of the Western Washington Growth Management Hearings Board (“WWGMHB”). Thurston County appealed.
First, Thurston County argued that Futurewise did not have the right to challenge the comprehensive plan since Mr. Trohimovich nor Futurewise resided on or owned property in the county. The county argued first that the absence of a physical connection prevented Futurewise, an outsider, from becoming involved. Next, the county argued that the legislature did not have the power to authorize such third-party challenges. The court was not persuaded by either of these arguments.
Second, Thurston County attempted to protect its plan by arguing that Futurewise had failed to present a timely challenge to the plan since it had challenged elements of the updated plan that were unchanged from the previous plan. The county argued that Futurewise should have challenged the sections when they were adopted into the previous plan. As the court notes, if the county were to prevail then plan updates would be a mere formality. A county would rarely, if ever, be forced to defend its plan after adopted the first time even though the situation might have greatly changed.
The other two arguments relate to the county’s provisions for rural lands. These sections were a split decision. Thurston County relied on the use and zoning of the lands in order to designate long term resource lands. The zoning can be used since it is government controlled, but the use can not. If the use was considered than land owners could game the system directly. Furthermore, while the did not provide any real difference in zoning densities for rural lands, the WWGMHB did not force Futurewise to prove the insufficiency of the county’s innovative programs to achieve rural variety and thus the board’s decision is unsupported.
Resources:
Blaine: Define Front
The Blaine City Council did a nice job with a closed record appeal last week. Blaine’s height restrictions rely upon the building having a “front.” In this case, though, the lot had three street edges. Since the code did not define the front of the building for corner lots, the Director (Administrator? The decision is unclear.) had the duty to select which part of the building was the front based upon the information in the application.
The tricky issue here was the city’s internal division of authority. The council worked with an entirely closed record, but the planning commission was also working with a partially closed record. The discretion to review the application and select the front of the house is an administrative decision outside the public process. Working with an unclear code, as was present here, its hard for the different layers of review to establish what parts of the project are reviewable.
Source:
Update: Spokane Gets The Pool
See my earlier post about the governmental effort in Spokane to build a new aquatic center (with water slide and lazy river) just outside the city’s UGA.
The city and county have come to an agreement and construction should begin soon. The county did not meet any of the city’s original conditions, but it did agree to bind future owners of the facility to cooperate with any annexation efforts.
The council voted unanimously Monday to provide sewer and water service to the pool without an annexation covenant or an agreement on developer fees. . . .
Commissioners did agree to require any future owner of the pool site to cooperate with annexation, and they agreed to enter a joint planning agreement for the Moran-Glenrose urban growth area with the city within three months. Also, commissioners agreed to accept a city application to expand the area.
Source:
- Water park gets go-ahead, (Spokane) Spokesman Review, Mar. 28, 2007, Page B1.
Redmond Accepts Tent City
The Redmond City Council accepted Tent City 4’s presence in the city through a 5-1 vote last Tuesday. The council was reinstating the permit issued by its planning director and overturned by the hearing examiner. The council’s move was a smart one, but I wouldn’t be surprised by an appeal.
Tent City 4 has been in Redmond since February 11th, but the permitted process began considerably earlier. The timeline for these permits needs improvement statewide.
The most contentious point, though, remains in dispute:
The council’s decision to uphold the permit does not resolve one disputed condition whether the required background checks will be conducted by the King County Sheriff’s Office, as Tent City 4 has proposed, or by Redmond police, as some Redmond residents have insisted.
[Harmon] said council members may have to determine whether the land-use code extends to this type of permit condition.
Source:
- Tent city may stay at Redmond church, Seattle Times, Mar. 28, 2007, Page B3
From the April 1, 2007 Seattle Times.
CORRECTION:
Comments in this story Wednesday about Tent City’s stay at St. Jude Catholic Church in Redmond were incorrectly attributed to planning director Rob Odle. Rod T. Harmon, attorney for St. Jude, was the one who said the City Council may have to make a determination about land-use code. He also said the church will not have to pay fines for hosting the encampment without a valid permit. But that has not yet been determined.
City of Arlington v. CPSGMHB
Holdings:
- A jurisdiction may support its GMA decision on the basis of evidence submitted by an interested party, even if that evidence conflicts with the report produced by the jurisdiction’s own staff.
- A jurisdiction’s zoning decision is reviewed for supporting evidence. The GMA does not require a jurisdiction to reach the “best” conclusion from the evidence; merely an appropriate one.
Discussion:
This case is the most recent decision in a decade long zoning fight in Snohomish County. At issue are 110.5 acres of land near the intersection of I-5 and SR-530. The land is currently divided into 9 parcels (the largest is about 20 acres) and zoned for agricultural use. Agricultural zoning has previously been adjudicated and accepted as appropriate for the land. In this case, though, the county has rezoned the land as urban commercial and wants to bring the land within the nearby UGA of the City of Arlington.
While the land is currently in agricultural use and may be economically productive, urban services in the form of water and sewer skirt its edges. Proximity to the highway system has also increased the tax value of many of the parcels. The increase in tax value, though, is a burden unsupported by potential uses of the land under the current agricultural zoning.
The county’s staff report on use of the land for urban purposes included the following conclusion: “Higher uses than farming would be difficult to locate in the area because of the floodplain constraints.” One of the property owners, though, submitted a rival report from a consultancy. The rival report includes different information and supports the conclusion that the land has productive, commercial use.
In this situation the county was entitled to zone the land as either agricultural or commercial. Since the county chose to zone it as commercial, then the court may properly rely on the consultant’s report to find the choice was not clearly erroneous.
Sources:
- Full text of the opinion (Slip Opinion)
West Richland Zoning
The City of West Richland (think Tri-Cities) is currently updating its zoning ordinance and is still accepting public comment. Instead of just posting a blanket request for public comment, though, they have a fairly target survey online in both Word and PDF formats.
The survey is interesting in how it steers public comment to focus on the issues that will actually be addressed in the zoning ordinance and the request for quantitative feedback. While the development community is likely geared to think in terms of zoning terms, forcing citizens to evaluate how many people should be allowed to live in an ADU forces the difficult questions.
Apparently, though, the city has only received thirty responses.
Here’s are the options the city provides to promote urban density:
- Subdivisions must provide for a minimum of 2, 3 or 4 dwellings per acre.)
- Require all residential land divisions within the City to be served with City sewer and water, or the development cannot occur. (Does not directly impose a specified maximum lot size—relies on financial impacts to encourage urban-sized lots.)
- Require a minimum lot size of 5/10/20/40 acres (Underline choice), when new development is not served by City sewer and water. (The idea being to preserve the area for future development, when city utilities are available.)
- Require any land division that does not represent urban density to include a “shadow plat”, for further division of the lots in the future. (Example: In the sample drawing below, four one-acre lots are created now, with each one-acre lot set up to be divided into three lots in the future, for a total of 12 lots. The home and outbuildings are limited to one of the three designated building sites within the 1-acre lot. The other two building sites remain vacant until the lot is divided again. See drawing below.)
Sources
- West Richland Land Use Survey
- Briefs, Tri-City Herald, Thursday March 22, 2007, Page B1
Woodinville and Bellevue Loosen Up, Ferndale Considers It
Redmond has allowed a moratorium on R-1 development to lapse. Bellevue has extended a moratorium, but hopes to complete the associated planning process more quickly than originally scheduled. Ferndale is meeting to discuss a moratorium on new big box stores.
Olympia Officially Allows Unofficial Tent City
Olympia has reached an agreement with the church hosting a 30 person tent city. Under the agreement, the tent city will wrap up May 19th, be subject to health inspections, and will not be required to seek a permit.
County Pools for City Kids
Spokane county is working with the city to build an aquatic facility within walking distance of the city, but outside the designated urban growth area.
Swinomish Indian Tribal Community v. Skagit County
While a tribe may not challenge a county’s GMA related actions directly, their bilateral agreement is still valid and remains as one approach to addressing the tribe’s concerns about water management.