Thurston & Lewis County Thurston & Lewis County Case Studies from the Case Studies from the Appellant’s PerspectiveAppellant’s Perspective

Tim Trohimovich, Tim Trohimovich, AICP, JDAICP, JD

Planning DirectorPlanning Director

FuturewiseFuturewise206-343-0681206-343-0681

tim@futurewise.orgtim@futurewise.org

FuturewiseFuturewise(formerly 1000 Friends of Washington)(formerly 1000 Friends of Washington) Non-profit 501(c)(3) organizationNon-profit 501(c)(3) organization Our mission at Futurewise is to promote healthy Our mission at Futurewise is to promote healthy

communities and cities while protecting working communities and cities while protecting working farms and forests and shorelines for this and farms and forests and shorelines for this and future generationsfuture generations

What we do:What we do:– Research and analysisResearch and analysis– Advocate for better planning and to improve the Growth Advocate for better planning and to improve the Growth

Management Act (GMA)Management Act (GMA) Local governmentsLocal governments State agencies & the legislatureState agencies & the legislature

– Assist citizen groups and the publicAssist citizen groups and the public– Appeal plans and regulations that violate the GMAAppeal plans and regulations that violate the GMA

Periodic Updates are to Improve the Periodic Updates are to Improve the Management of GrowthManagement of Growth

In In 1000 Friends of Washington v. McFarland1000 Friends of Washington v. McFarland, , the the Washington State Supreme Court wrote: Washington State Supreme Court wrote: [T]he process creates (hopefully) ever improving [T]he process creates (hopefully) ever improving management of growth, in light of all of the management of growth, in light of all of the different legitimate concerns of the stakeholders in different legitimate concerns of the stakeholders in the system. Nor do we find any evidence of the system. Nor do we find any evidence of legislative intent to treat the original legislative intent to treat the original comprehensive plan so differently from revised comprehensive plan so differently from revised comprehensive plans. Instead, the continual comprehensive plans. Instead, the continual process of revising management of land is itself an process of revising management of land is itself an integral part of the structure established by the integral part of the structure established by the GMA.GMA.

GMA CountiesGMA Counties Gray: Gray: CARL CARL countiecountiess

DarkestDarkest: : Western Western Board Board CountieCountiess

Blue Blue (Dark) (Dark) Stipple: Stipple: Central Central Board Board CountieCountiess

Light Light (Buff): (Buff): Eastern Eastern Board Board CountieCountiess

Duty to Review and ReviseDuty to Review and Revise

A county or city shall take legislative action to A county or city shall take legislative action to review and, if needed, revise its comprehensive review and, if needed, revise its comprehensive land use plan and development regulations to land use plan and development regulations to ensure the plan and regulations comply with the ensure the plan and regulations comply with the requirements of this chapter according to the time requirements of this chapter according to the time periods specified in subsection (4) of this section. periods specified in subsection (4) of this section. RCW 36.70A.130 (1)(a)RCW 36.70A.130 (1)(a)

CARL counties and cities must review and revise CARL counties and cities must review and revise designations of natural resource lands and critical designations of natural resource lands and critical areas and critical areas regulations. RCW areas and critical areas regulations. RCW 36.70A.130 (1)(b)36.70A.130 (1)(b)

Periodic Update DeadlinesPeriodic Update Deadlines12/1/ 2004 12/1/ 2004 Clallam, Clark, Jefferson, King, Kitsap, Clallam, Clark, Jefferson, King, Kitsap,

Pierce, Snohomish, Thurston, and Pierce, Snohomish, Thurston, and Whatcom CountiesWhatcom Counties

12/1/200512/1/2005

CAOs 12/1/2006CAOs 12/1/2006

Cowlitz,* Island,* Lewis,* Mason, San Cowlitz,* Island,* Lewis,* Mason, San Juan, Skagit,* and SkamaniaJuan, Skagit,* and Skamania Counties Counties

12/1/200612/1/2006

CAOs 12/1/2007CAOs 12/1/2007

Benton,* Chelan,* Douglas,Benton,* Chelan,* Douglas, Grant,* Grant,* Kittitas,* Spokane,* and Yakima* CountiesKittitas,* Spokane,* and Yakima* Counties

12/1/200712/1/2007

CAOs 12/1/2008CAOs 12/1/2008

Adams,Adams, Asotin, Asotin, Columbia, Columbia, Ferry, Ferry, Franklin,* Garfield,Franklin,* Garfield, Grays Harbor,* Grays Harbor,* Klickitat,Klickitat, Lincoln, Lincoln, Okanogan, Okanogan, Pacific, Pacific, Pend Oreille,Pend Oreille, Stevens, Stevens, Wahkiakum, Wahkiakum, Walla Walla,* and WhitmanWalla Walla,* and Whitman Counties Counties

Ten year update county and some cities *Ten year update Ten year update county and some cities *Ten year update citiescities

Summary of Summary of Thurston CountyThurston County Decision Decision

Issue 1: Rural Densities Greater than One Issue 1: Rural Densities Greater than One Dwelling Unit per Five AcresDwelling Unit per Five Acres– 21,939 acres of rural land with densities equal to or 21,939 acres of rural land with densities equal to or

greater than one dwelling unit per two acresgreater than one dwelling unit per two acres– County argued that the areas complied with GMA County argued that the areas complied with GMA

because they predate the GMAbecause they predate the GMA– Board holds that county must bring these areas into Board holds that county must bring these areas into

compliance with LAMIRD requirements in RCW compliance with LAMIRD requirements in RCW 36.70A.070(5)(d) adopted after the county’s 1995 36.70A.070(5)(d) adopted after the county’s 1995 comprehensive plancomprehensive plan

– Court of Appeals affirmsCourt of Appeals affirms

Summary of the Summary of the Thurston CountyThurston County Decision (continued)Decision (continued)

Issue 2: No Variety of Rural DensitiesIssue 2: No Variety of Rural Densities– Only five acre designations and zonesOnly five acre designations and zones– County’s attempt to include natural resource lands as County’s attempt to include natural resource lands as

rural densities violates GMArural densities violates GMA– County could use innovative techniques to provide a County could use innovative techniques to provide a

variety of rural densities, but the comprehensive plan variety of rural densities, but the comprehensive plan did not show they would achieve a variety of rural did not show they would achieve a variety of rural densitiesdensities

– So no variety of rural densitiesSo no variety of rural densities– Court of Appeals affirms that zoning provided no variety Court of Appeals affirms that zoning provided no variety

of rural densitiesof rural densities– As to innovative techniques, Court of Appeals rules the As to innovative techniques, Court of Appeals rules the

Western Board shifted burden of proofWestern Board shifted burden of proof

Summary of the Summary of the Thurston CountyThurston County Decision (continued)Decision (continued)

Issue 3: Oversized Urban Growth Areas (UGAs) Issue 3: Oversized Urban Growth Areas (UGAs) – 60 percent larger than needed60 percent larger than needed– No market factorNo market factor– Violates Violates DiehlDiehl requirement that the UGA be based on the requirement that the UGA be based on the

OFM projectionsOFM projections– Court of Appeals affirmsCourt of Appeals affirms

On February 5, Supreme Court grants Thurston On February 5, Supreme Court grants Thurston County’s petition for review and will hear the County’s petition for review and will hear the appeal, perhaps as early as March 2008 appeal, perhaps as early as March 2008

Summary of the Summary of the Thurston CountyThurston County Decision (continued)Decision (continued)

Issue 4: Failure to Designate and Protect Issue 4: Failure to Designate and Protect Agricultural Lands of Long-Term Commercial Agricultural Lands of Long-Term Commercial SignificanceSignificance– Actual use criteria violates Actual use criteria violates Benaroya IBenaroya I decision decision– 20 acre parcel size criteria violates requirement to 20 acre parcel size criteria violates requirement to

consider long-term commercial significance factorsconsider long-term commercial significance factors– Court of Appeals affirms actual use criteria rulingCourt of Appeals affirms actual use criteria ruling– Court of Appeals reverses Board on predominate parcel Court of Appeals reverses Board on predominate parcel

size, ruling that county could use that as a non-size, ruling that county could use that as a non-exclusionary factor exclusionary factor

Summary of the Summary of the Lewis CountyLewis County DecisionDecision

Agricultural land is:Agricultural land is:– Land not characterized by urban growthLand not characterized by urban growth– Primarily devoted to the commercial production of Primarily devoted to the commercial production of

agricultural products enumerated in RCW agricultural products enumerated in RCW 36.70A.030(2), including land in areas used or capable 36.70A.030(2), including land in areas used or capable of being used for production based on land of being used for production based on land characteristics, characteristics, andand

– long-term commercial significance for agricultural long-term commercial significance for agricultural production, as indicated by soil, growing capacity, production, as indicated by soil, growing capacity, productivity, and whether it is near population areas or productivity, and whether it is near population areas or vulnerable to more intense uses vulnerable to more intense uses

Summary of the Summary of the Lewis CountyLewis County Decision (continued)Decision (continued)

Counties may consider the development-Counties may consider the development-related factors enumerated in WAC 365-related factors enumerated in WAC 365-190-050(1) in determining which lands have 190-050(1) in determining which lands have long-term commercial significancelong-term commercial significance

Department of Community, Trade, and Department of Community, Trade, and Community development has started to Community development has started to update its minimum guidelines including update its minimum guidelines including agricultural and forestry designation criteria agricultural and forestry designation criteria

Summary of the Summary of the Lewis CountyLewis County Decision (continued)Decision (continued)

Must conserve natural resource landsMust conserve natural resource lands Counties may choose how best to conserve Counties may choose how best to conserve

designated lands as long as their methods designated lands as long as their methods are “designed to conserve agricultural lands are “designed to conserve agricultural lands and encourage the agricultural economy.” and encourage the agricultural economy.” RCW 36.70A.177(1)RCW 36.70A.177(1)

Agreed with the Board that many allowed Agreed with the Board that many allowed uses did not conserve agricultural land and uses did not conserve agricultural land and violated GMAviolated GMA

LessonsLessons

Listen to the public, they may be rightListen to the public, they may be right The periodic updates require counties and cities to The periodic updates require counties and cities to

review and revise their comprehensive plans and review and revise their comprehensive plans and development regulations to comply with GMA development regulations to comply with GMA goals and requirementsgoals and requirements

Make the findings required by RCW 36.70A.130 Make the findings required by RCW 36.70A.130 for a periodic update, otherwise the public will be for a periodic update, otherwise the public will be confused and the county or city may face a failure confused and the county or city may face a failure to adopt appealto adopt appeal

What is Likely to Happen on What is Likely to Happen on Remand: ThurstonRemand: Thurston

Supreme CourtSupreme Court– Will hear Thurston County’s appealWill hear Thurston County’s appeal– Decision likely in late 2008 or 2009Decision likely in late 2008 or 2009

Western Board has ruled that the county must apply its new agricultural Western Board has ruled that the county must apply its new agricultural designation criterion, remanded again to countydesignation criterion, remanded again to county

Western Board has held that the Rochester LAMIRD included Western Board has held that the Rochester LAMIRD included undeveloped land and so violated the GMAundeveloped land and so violated the GMA– Remanded again to Thurston CountyRemanded again to Thurston County– Water association and property owner appeal to Thurston County superior Water association and property owner appeal to Thurston County superior

courtcourt Western Board has stayed variety of rural densities issueWestern Board has stayed variety of rural densities issue Thurston County adopted new rural comprehensive plan and Thurston County adopted new rural comprehensive plan and

development regulationsdevelopment regulations– Appealed to Western BoardAppealed to Western Board– Western Board refuses to dismiss, but rules that it must presume that the Western Board refuses to dismiss, but rules that it must presume that the

county comprehensive plan is GMA complaint, implying we will loose on the county comprehensive plan is GMA complaint, implying we will loose on the meritsmerits

Lewis County on RemandLewis County on Remand

Lewis County has redone its agricultural Lewis County has redone its agricultural lands designation criteria, designations, and lands designation criteria, designations, and development regulationsdevelopment regulations

Futurewise and citizens arguing they are Futurewise and citizens arguing they are non-complaintnon-complaint

One property owner argues property was One property owner argues property was erroneously designatederroneously designated