H-4851.2  _______________________________________________

                    SUBSTITUTE HOUSE BILL 2911

          _______________________________________________

State of Washington      55th Legislature     1998 Regular Session

By House Committee on House Government Reform & Land Use (originally sponsored by Representatives Reams, Cairnes and Thompson)

Read first time 02/05/98.  Referred to Committee on .

Imposing mitigation measures under the state environmental policy act.

    AN ACT Relating to substantive authority and imposition of mitigation measures under the state environmental policy act; amending RCW 36.70B.030, 36.70B.040, 43.21C.060, 43.21C.065, 43.21C.240, and 82.02.100; adding a new section to chapter 43.21C RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.  The legislature recognizes that the growth management act is the fundamental building block of regulatory reform.  The legislature also recognizes that state and local governments have invested considerable resources in implementing chapter 36.70A RCW, the growth management act.  The legislature therefore declares the following intent:

    (1) Chapter 36.70A RCW, together with chapters 36.70B and 36.70C RCW, serve as the integrating framework for all other land use laws.

    (2) Policy decisions related to development impacts made by local governments in plans, regulations, and codes adopted pursuant to chapter 36.70A RCW are not to be reconsidered at the project review level.

    (3) Project-level environmental review should be used only to:

    (a) Review and document consistency with comprehensive plans and development regulations;

    (b) Provide prompt and coordinated review by government agencies and the public on compliance with applicable policies, development regulations, and environmental laws and plans, including mitigation for specific project impacts that have not already been considered and addressed pursuant to chapter 36.70A RCW in a comprehensive plan, subarea plan, or development regulation; and

    (c) Ensure accountability by local governments to applicants and the public for requiring and implementing mitigation measures.

    (4) The authority for local governments to impose impact fees by ordinance for infrastructure impacts provides the exclusive basis for  mitigating such impacts.

    (5) All land use laws other than chapter 36.70A RCW serve only to supplement the provisions of that chapter.

    Sec. 2.  RCW 36.70B.030 and 1995 c 347 s 404 are each amended to read as follows:

    (1) Fundamental land use planning choices made in adopted comprehensive plans and development regulations shall serve as the foundation for project review.  The review of a proposed project's consistency with applicable development regulations, or in the absence of applicable regulations the adopted comprehensive plan, under RCW 36.70B.040 shall incorporate the determinations under this section.

    (2) During project review, a local government or any subsequent reviewing body shall determine whether the items listed in this subsection are defined in the development regulations applicable to the proposed project or, in the absence of applicable regulations the adopted comprehensive plan.  At a minimum, such applicable regulations or plans shall be determinative of the:

    (a) Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as planned unit developments and conditional and special uses, if the criteria for their approval have been satisfied;

    (b) Density of residential development in urban growth areas; ((and))

    (c) Availability and adequacy of public facilities identified in the comprehensive plan, if the plan or development regulations provide for funding of these facilities as required by chapter 36.70A RCW; and

(d) Protection of critical areas.

    (3) During project review, the local government or any subsequent reviewing body shall not reexamine alternatives to or hear appeals on the items identified in subsection (2) of this section, except for issues of code interpretation.  As part of its project review process, a local government shall provide a procedure for obtaining a code interpretation as provided in RCW 36.70B.110.

    (4) ((Pursuant to RCW 43.21C.240, a local government may determine that the requirements for environmental analysis and mitigation measures in development regulations and other applicable laws provide adequate mitigation for some or all of the project's specific adverse environmental impacts to which the requirements apply.

    (5))) Nothing in this section limits the authority of a permitting agency to approve, condition, or deny a project as provided in its development regulations adopted under chapter 36.70A RCW ((and in its policies adopted under RCW 43.21C.060.  Project review shall be used to identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, transportation demand management, the payment of impact fees, or other measures to mitigate a proposal's probable adverse environmental impacts, if applicable)).

    (((6) Subsections (1) through (4) of)) (5) This section ((apply)) applies only to local governments planning under RCW 36.70A.040.

    Sec. 3.  RCW 36.70B.040 and 1997 c 429 s 46 are each amended to read as follows:

    (1) A proposed project's consistency with a local government's development regulations adopted under chapter 36.70A RCW, or, in the absence of applicable development regulations, the appropriate elements of the comprehensive plan adopted under chapter 36.70A RCW shall be decided by the local government during project review by consideration of:

    (a) The type of land use;

    (b) The level of development, such as units per acre or other measures of density;

    (c) Infrastructure, including public facilities and services needed to serve the development; ((and))

    (d) The characteristics of the development, such as development standards; and

(e) Protection of critical areas.

    (2) In deciding whether a project is consistent, the determinations made pursuant to RCW 36.70B.030(2) shall be controlling.

    (3) For purposes of this section, the term "consistency" shall include all terms used in this chapter and chapter 36.70A RCW to refer to performance in accordance with this chapter and chapter 36.70A RCW, including but not limited to compliance, conformity, and consistency.

    (4) Nothing in this section requires documentation, dictates an agency's procedures for considering consistency, or limits a  city or county from asking more specific or related questions with respect to any of the four main categories listed in subsection (1)(a) through (d) of this section.

    (5) The department of community, trade, and economic development is authorized to develop and adopt by rule criteria to assist local governments planning under RCW 36.70A.040 to analyze the consistency of project actions.  These criteria shall be jointly developed with the department of ecology.

NEW SECTION. Sec. 4.  A new section is added to chapter 43.21C RCW to read as follows:

    A local government may only impose a condition pursuant to RCW 43.21C.060 for specific adverse environmental impacts of a project action which are not deemed to be adequately analyzed and mitigated as provided for in RCW 43.21C.240.

    Sec. 5.  RCW 43.21C.060 and 1983 c 117 s 3 are each amended to read as follows:

(1) The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties, and to the provisions of chapters 36.70A, 36.70B, and 36.70C RCW.

(2) Any governmental action may be conditioned or denied pursuant to this chapter if:  ((PROVIDED, That such))

(a) The specific adverse environmental impact to which the condition or denial applies has not already been addressed and mitigated as provided in RCW 43.21C.065 and 43.21C.240;

(b) The conditions or denials authorized under this section shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are:

(i) In effect on the date a complete application is filed;

(ii) Consistent with the provisions of any comprehensive plan, subarea plans, or development regulations adopted pursuant to chapter 36.70A RCW;

(iii) Formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of authority pursuant to this chapter((.  Such designation shall occur)) at the time specified by RCW 43.21C.120((.  Such));

(c) The action ((may be)) is conditioned only to mitigate specific adverse environmental impacts which are identified in the environmental documents prepared under this chapter((.  These)) and the conditions ((shall be)) are stated in writing by the decisionmaker((.)); and

(d) Mitigation measures ((shall be)) are reasonable and capable of being accomplished.

(3) In order to deny a proposal under this chapter, an agency must find that:

    (((1))) (a) The proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and

    (((2))) (b) Reasonable mitigation measures are insufficient to mitigate the identified impact.

(4) Except for permits and variances issued pursuant to chapter 90.58 RCW, when such a governmental action, not requiring a legislative decision, is conditioned or denied by a nonelected official of a local governmental agency, the decision shall be appealable to the legislative authority of the acting local governmental agency unless that legislative authority formally eliminates such appeals.  Such appeals shall be in accordance with procedures established for such appeals by the legislative authority of the acting local governmental agency.

    Sec. 6.  RCW 43.21C.065 and 1992 c 219 s 1 are each amended to read as follows:

    A person ((required to pay an impact fee for system improvements pursuant to RCW 82.02.050 through 82.02.090)) shall not be required to prepare an environmental impact statement pursuant to RCW 43.21C.031 or to pay a fee pursuant to RCW 43.21C.060 for ((those same)) system improvements for which an impact fee may be imposed pursuant to RCW 82.02.050 through 82.02.090.

    Sec. 7.  RCW 43.21C.240 and 1995 c 347 s 202 are each amended to read as follows:

    (1) ((If the requirements of subsection (2) of this section are satisfied, a county, city, or town reviewing a project action may determine that)) For local governments planning under chapter 36.70A RCW, the requirements for environmental analysis, protection, and mitigation measures in the county, city, or town's development regulations ((and)), comprehensive plans, and subarea plans adopted ((under)) pursuant to chapter 36.70A RCW((, and in other applicable local, state, or federal laws and rules)) shall be deemed to provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply.  The county, city, or town shall not impose additional mitigation under this chapter during project review to address any specific adverse environmental impacts addressed in the regulations, comprehensive plans, and subarea plans, adopted pursuant to chapter 36.70A RCW.  Project review shall be integrated with environmental analysis under this chapter.

    (2) A county, city, or town not planning under chapter 36.70A RCW may make the determination ((provided for in subsection (1) of this section)) that its development regulations, comprehensive plan, or subarea plans, or other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply if:

    (a) In the course of project review, including any required environmental analysis, the local government considers the specific probable adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan, subarea plan element of the comprehensive plan, or other local, state, or federal rules or laws; and

    (b) The local government bases or conditions its approval on compliance with these requirements or mitigation measures.

    (3) If a county, city, or ((town's comprehensive plans, subarea plans, and development regulations adequately address a project's probable specific adverse environmental impacts, as determined under subsections (1) and (2) of this section)) town makes the determination provided for in subsection (2) of this section, the county, city, or town shall not impose additional mitigation under this chapter during project review to address any specific adverse environmental impacts addressed in its regulations, comprehensive plans, and subarea plans.  Project review shall be integrated with environmental analysis under this chapter.

    (4) ((A comprehensive plan, subarea plan, or development regulation shall be considered to adequately address an impact if the county, city, or town, through the planning and environmental review process under chapter 36.70A RCW and this chapter, has identified the specific adverse environmental impacts and:

    (a) The impacts have been avoided or otherwise mitigated; or

    (b) The legislative body of the county, city, or town has designated as acceptable certain levels of service, land use designations, development standards, or other land use planning required or allowed by chapter 36.70A RCW)) Subsections (2) and (3) of this section shall apply only to a county, city, or town not planning under RCW 36.70A.040.

    (5) In deciding whether a specific adverse environmental impact has been addressed by an existing rule or law of another agency with jurisdiction ((with)) and environmental expertise with regard to a specific environmental impact, the county, city, or town shall consult orally or in writing with that agency and may expressly defer to that agency.  In making this deferral, the county, city, or town shall base or condition its project approval on compliance with these other existing rules or laws.

    (6) Nothing in this section limits the authority of an agency in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by this chapter.

    (((7) This section shall apply only to a county, city, or town planning under RCW 36.70A.040.))

    Sec. 8.  RCW 82.02.100 and 1992 c 219 s 2 are each amended to read as follows:

This chapter provides the exclusive basis for requiring mitigation for system improvements specified in RCW 82.02.090.  A person shall not be required to pay a fee pursuant to RCW 43.21C.060 for any system improvements ((shall not be required to pay an impact fee under RCW 82.02.050 through 82.02.090 for those same system improvements)) specified in RCW 82.02.090.

NEW SECTION. Sec. 9.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

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