S-0488.4  _______________________________________________

                         SENATE BILL 5321

          _______________________________________________

State of Washington      56th Legislature     1999 Regular Session

By Senators Patterson and Rasmussen

Read first time 01/20/1999.  Referred to Committee on State & Local Government.

Addressing public facility siting.

    AN ACT Relating to public facility siting and planning; amending RCW 36.70A.030, 36.70A.200, 36.70A.210, 43.21C.031, 43.21C.060, and 82.02.090; adding a new section to chapter 36.70A RCW; and creating a new section.

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

NEW SECTION. Sec. 1.  The legislature finds that current processes for the siting and operation of major regional public facilities often fail to adequately address regional and localized impacts and benefits of such facilities.  Throughout the state there are proposals for siting major public facilities in which surrounding neighborhoods and communities will be disproportionately impacted while the benefits of the facility are provided to the larger region or to the entire state.  These facilities include major transportation facilities such as highways, bridges, airports, and rail lines, and other nontransportation facilities such as prisons and landfills.  The legislature also finds that although the growth management act provides procedures for establishing county-wide policies for coordinated planning of such facilities, those procedures do not include all public entities that provide such facilities and do not provide sufficient guidance to local jurisdictions to ensure consideration and mitigation of impacts to surrounding communities and participation in siting processes by those communities.

    Therefore, it is the intent of the legislature to ensure that these considerations are incorporated into the county-wide planning policies required under the growth management act, and to provide sufficient authority so that siting decisions and mitigation measures adopted through using such policies may be fully implemented.

    Sec. 2.  RCW 36.70A.030 and 1997 c 429 s 3 are each amended to read as follows:

    Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

    (1) "Adopt a comprehensive land use plan" means to enact a new comprehensive land use plan or to update an existing comprehensive land use plan.

    (2) "Agricultural land" means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.

    (3) "City" means any city or town, including a code city.

    (4) "Comprehensive land use plan," "comprehensive plan," or "plan" means a generalized coordinated land use policy statement of the governing body of a county or city that is adopted pursuant to this chapter.

    (5) "Critical areas" include the following areas and ecosystems:  (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.

    (6) "Department" means the department of community, trade, and economic development.

    (7) "Development regulations" or "regulation" means the controls placed on development or land use activities by a county or city, including, but not limited to, zoning ordinances, critical areas ordinances, shoreline master programs, official controls, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto.  A development regulation does not include a decision to approve a project permit application, as defined in RCW 36.70B.020, even though the decision may be expressed in a resolution or ordinance of the legislative body of the county or city.

    (8) "Essential public facilities" are those public facilities, and their expansion, that are typically difficult to site, and include:  (a) "Local essential public facilities" planned for the primary purpose of serving the residents of the jurisdiction in which the facilities are planned to be located, and (b) "regional or state-wide essential public facilities,"  which include airports, state education facilities, state or regional transportation facilities, sewage treatment facilities, solid waste handling facilities, and additional facilities that may be defined in a county-wide planning policy developed pursuant to RCW 36.70A.210.  "Essential public facilities" do not include facilities whose siting is governed by chapter 80.50 or 70.105 RCW.

(9) "Forest land" means land primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, including Christmas trees subject to the excise tax imposed under RCW 84.33.100 through 84.33.140, and that has long-term commercial significance.  In determining whether forest land is primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, the following factors shall be considered:  (a) The proximity of the land to urban, suburban, and rural settlements; (b) surrounding parcel size and the compatibility and intensity of adjacent and nearby land uses; (c) long-term local economic conditions that affect the ability to manage for timber production; and (d) the availability of public facilities and services conducive to conversion of forest land to other uses.

    (((9))) (10) "Geologically hazardous areas"  means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns.

    (((10))) (11) "Long-term commercial significance" includes the growing capacity, productivity, and soil composition of the land for long-term commercial production, in consideration with the land's proximity to  population areas, and the possibility of more intense uses of the land.

    (((11))) (12) "Minerals" include gravel, sand, and valuable metallic substances.

    (((12))) (13) "Public facilities" include streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, airports, bridges, domestic water systems, storm and sanitary sewer systems, parks and recreational facilities, ((and)) schools, correctional facilities, solid waste handling facilities, and in-patient facilities.

    (((13))) (14) "Public services" include fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.

    (((14))) (15) "Rural character" refers to the patterns of land use and development established by a county in the rural element of its comprehensive plan:

    (a) In which open space, the natural landscape, and vegetation predominate over the built environment;

    (b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;

    (c) That provide visual landscapes that are traditionally found in rural areas and communities;

    (d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;

    (e) That reduce the inappropriate conversion of undeveloped land into sprawling, low‑density development;

    (f) That generally do not require the extension of urban governmental services; and

    (g) That are consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.

    (((15))) (16) "Rural development" refers to development outside the urban growth area and outside agricultural, forest, and mineral resource lands designated pursuant to RCW 36.70A.170.  Rural development can consist of a variety of uses and residential densities, including clustered residential development, at levels that are consistent with the preservation of rural character and the requirements of the rural element.  Rural development does not refer to agriculture or forestry activities that may be conducted in rural areas.

    (((16))) (17) "Rural governmental services" or "rural services" include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development and normally not associated with urban areas.  Rural services do not include storm or sanitary sewers, except as otherwise authorized by RCW 36.70A.110(4).

    (((17))) (18) "Urban growth" refers to growth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources, rural uses, rural development, and natural resource lands designated pursuant to RCW 36.70A.170.  A pattern of more intensive rural development, as provided in RCW 36.70A.070(5)(d), is not urban growth.  When allowed to spread over wide areas, urban growth typically requires urban governmental services.  "Characterized by urban growth" refers to land having urban growth located on it, or to land located in relationship to an area with urban growth on it as to be appropriate for urban growth.

     (((18))) (19) "Urban growth areas" means those areas designated by a county pursuant to RCW 36.70A.110.

     (((19))) (20) "Urban governmental services" or "urban services" include those public services and public facilities at an intensity historically and typically provided in cities, specifically including storm and sanitary sewer systems, domestic water systems, street cleaning services, fire and police protection services, public transit services, and other public utilities associated with urban areas and normally not associated with rural areas.

     (((20))) (21) "Wetland" or "wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands generally include swamps, marshes, bogs, and similar areas.  Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.  Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.

    Sec. 3.  RCW 36.70A.200 and 1998 c 171 s 3 are each amended to read as follows:

    (1) The comprehensive plan of each county and city that is planning under this chapter shall include a process for identifying and siting essential public facilities.  ((Essential public facilities 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, and group homes.))  The processes for identifying and siting regional or state-wide essential public facilities shall be coordinated through the county-wide planning policy adopted under RCW 36.70A.210.

    (2) The office of financial management shall maintain a list of those essential state-owned and state-operated public facilities that are required or likely to be built within the next six years.  The office of financial management may ((at any time)) add facilities to the list, following consultation with the governing bodies of the cities or counties under consideration for siting of the facilities.  No county or city shall be required to amend its comprehensive plan to meet the requirements of this section due to the listing of a facility by the office of financial management, prior to the next scheduled plan revision.

(3) No local comprehensive plan or development regulation may preclude the siting of essential public facilities.  This subsection does not limit the authority of a local government to require the avoidance or mitigation of impacts of a proposed essential public facility under chapter 43.21C RCW or other applicable authority, and the imposition of requirements to avoid or mitigate such impacts shall not be construed as precluding the siting of an essential public facility.

    Sec. 4.  RCW 36.70A.210 and 1998 c 171 s 4 are each amended to read as follows:

    (1) The legislature recognizes that counties are regional governments within their boundaries, and cities are primary providers of urban governmental services within urban growth areas.  For the purposes of this section, a "county-wide planning policy" is a written policy statement or statements used solely for establishing a county-wide framework from which county and city comprehensive plans are developed ((and)), adopted, and implemented pursuant to this chapter.  This framework shall ensure that city and county comprehensive plans are consistent as required in RCW 36.70A.100, and that such plans and the planning for public facilities by the county, cities, and special districts are consistent as required by subsection (9) of this section.  Nothing in this section shall be construed to alter the land-use powers of cities.

    (2) The legislative authority of a county that plans under RCW 36.70A.040 shall adopt a county-wide planning policy in cooperation with the cities located in whole or in part within the county as follows:

    (a) No later than sixty calendar days from July 16, 1991, the legislative authority of each county that as of June 1, 1991, was required or chose to plan under RCW 36.70A.040 shall convene a meeting with representatives of each city located within the county for the purpose of establishing a collaborative process that will provide a framework for the adoption of a county-wide planning policy.  In other counties that are required or choose to plan under RCW 36.70A.040, this meeting shall be convened no later than sixty days after the date the county adopts its resolution of intention or was certified by the office of financial management.

    (b) The process and framework for adoption of a county-wide planning policy specified in (a) of this subsection shall determine the manner in which the county and the cities agree to all procedures and provisions including but not limited to desired planning policies, deadlines, ratification of final agreements and demonstration thereof, and financing, if any, of all activities associated therewith.

    (c) If a county fails for any reason to convene a meeting with representatives of cities as required in (a) of this subsection, the governor may immediately impose any appropriate sanction or sanctions on the county from those specified under RCW 36.70A.340.

    (d) If there is no agreement by October 1, 1991, in a county that was required or chose to plan under RCW 36.70A.040 as of June 1, 1991, or if there is no agreement within one hundred twenty days of the date the county adopted its resolution of intention or was certified by the office of financial management in any other county that is required or chooses to plan under RCW 36.70A.040, the governor shall first inquire of the jurisdictions as to the reason or reasons for failure to reach an agreement.  If the governor deems it appropriate, the governor may immediately request the assistance of the department of community, trade, and economic development to mediate any disputes that preclude agreement.  If mediation is unsuccessful in resolving all disputes that will lead to agreement, the governor may impose appropriate sanctions from those specified under RCW 36.70A.340 on the county, city, or cities for failure to reach an agreement as provided in this section.  The governor shall specify the reason or reasons for the imposition of any sanction.

    (e) No later than July 1, 1992, the legislative authority of each county that was required or chose to plan under RCW 36.70A.040 as of June 1, 1991, or no later than fourteen months after the date the county adopted its resolution of intention or was certified by the office of financial management the county legislative authority of any other county that is required or chooses to plan under RCW 36.70A.040, shall adopt a county-wide planning policy according to the process provided under this section and that is consistent with the agreement pursuant to (b) of this subsection, and after holding a public hearing or hearings on the proposed county-wide planning policy.

    (3) A county-wide planning policy shall at a minimum, address the following:

    (a) Policies to implement RCW 36.70A.110;

    (b) Policies for promotion of contiguous and orderly development and provision of urban services to such development;

    (c) Policies for identifying and siting regional and state-wide essential public ((capital)) facilities ((of a county-wide or state-wide nature)), including transportation facilities ((of state-wide significance as defined in RCW 47.06.140)).  Such policies shall include the procedures and provisions required by subsection (4) of this section;

    (d) Policies for county-wide transportation facilities and strategies;

    (e) Policies that consider the need for affordable housing, such as housing for all economic segments of the population and parameters for its distribution;

    (f) Policies for joint county and city planning within urban growth areas;

    (g) Policies for county-wide economic development and employment; and

    (h) An analysis of the fiscal impact.

    (4) The county-wide planning policy for identifying and siting regional or state-wide essential public facilities shall be developed collaboratively by the county, the cities, the state agencies with regulatory jurisdiction over the siting of such facilities, and special purpose districts that are located within the county and provide one or more types of such facilities.  Participation by special purpose districts shall be limited to districts that provide one or more types of regional or state-wide essential public facilities or additional types of facilities proposed to be included in the county-wide policy.  The policy shall at a minimum address the following:

(a) Criteria and procedures to determine which facilities will be subject to the policy;

(b) Creation of a regional entity to apply the policy and make regional decisions regarding the siting of a facility.  The policy shall ensure the fair participation or representation of all jurisdictions that may be impacted or benefited by the facility.  The policy shall ensure an active public participation process in which the public may propose siting dispute provisions and may comment upon proposals by the regional decisional entity.   The decisional procedures shall define circumstances in which alternative dispute resolution mechanisms may be employed.  The procedures shall also include criteria for determining when a decisional impasse has occurred;

(c) Provide criteria and procedures by which the decisional entity considers whether the facility:

(i) Unreasonably interferes with the objectives of the adopted comprehensive plan of a jurisdiction adversely impacted by the facility;

(ii) Is consistent with the adopted comprehensive plan and development regulation of a jurisdiction adversely impacted by the facility;

(iii) Fairly apportions the relative burdens and benefits of the facility;

(iv) To the extent practicable, avoids or minimizes the impacts upon local jurisdictions, and if avoidance or minimization of the impacts is not practicable, provides other mitigation measures that compensate for the impacts;

(d) Provides procedures by which impacted local jurisdictions with the approval of the regional decisional entity may ensure the implementation of mitigation conditions or compensation, including the imposition of such conditions upon the permits issued by the permitting jurisdictions, including local governments and state agencies; and

(e) Funding of mitigating measures on a regional basis, including the contribution of funding from multiple jurisdictions that will be benefited by the facility.

(5) Federal agencies and Indian tribes may participate in and cooperate with the county-wide planning policy adoption process.  Adopted county-wide planning policies shall be adhered to by state agencies.

    (((5))) (6) Failure to adopt a county-wide planning policy that meets the requirements of this section may result in the imposition of a sanction or sanctions on a county or city within the county, as specified in RCW 36.70A.340.  In imposing a sanction or sanctions, the governor shall specify the reasons for failure to adopt a county-wide planning policy in order that any imposed sanction or sanctions are fairly and equitably related to the failure to adopt a county-wide planning policy.

    (((6))) (7) Cities and the governor may appeal an adopted county-wide planning policy to the growth management hearings board within sixty days of the adoption of the county-wide planning policy.

    (((7))) (8) Multicounty planning policies shall be adopted by two or more counties, each with a population of four hundred fifty thousand or more, with contiguous urban areas and may be adopted by other counties, according to the process established under this section or other processes agreed to among the counties and cities within the affected counties throughout the multicounty region.

(9) In a county with an adopted county-wide planning policy adopted before July 1, 1999, the county shall adopt an element governing the siting of regional or state-wide essential public facilities pursuant to subsection (4) of this section in the next scheduled comprehensive revision of its policy, but not later than July 1, 2001.

NEW SECTION. Sec. 5.  A new section is added to chapter 36.70A RCW to read as follows:

    The department shall adopt minimum guidelines for the development of county-wide planning policies on the siting of essential public facilities under RCW 36.70A.210(4).

    Sec. 6.  RCW 43.21C.031 and 1995 c 347 s 203 are each amended to read as follows:

    (1) An environmental impact statement (the detailed statement required by RCW 43.21C.030(2)(c)) shall be prepared on proposals for legislation and other major actions having a probable significant, adverse environmental impact.  The environmental impact statement may be combined with the recommendation or report on the proposal or issued as a separate document.  The substantive decisions or recommendations shall be clearly identifiable in the combined document.  Actions categorically exempt under RCW 43.21C.110(1)(a) do not require environmental review or the preparation of an environmental impact statement under this chapter.  In a county, city, or town planning under RCW 36.70A.040, a planned action, as provided for in subsection (2) of this section, does not require a threshold determination or the preparation of an environmental impact statement under this chapter, but is subject to environmental review and mitigation as provided in this chapter.

    An environmental impact statement is required to analyze only those probable adverse environmental impacts which are significant.  Beneficial environmental impacts may be discussed.  The responsible official shall consult with agencies and the public to identify such impacts and limit the scope of an environmental impact statement.  The subjects listed in RCW 43.21C.030(2)(c) need not be treated as separate sections of an environmental impact statement.  Discussions of significant short-term and long-term environmental impacts, significant irrevocable commitments of natural resources, significant alternatives including mitigation measures, and significant environmental impacts which cannot be mitigated should be consolidated or included, as applicable, in those sections of an environmental impact statement where the responsible official decides they logically belong.

    (2)(a) For purposes of this section, a planned action means one or more types of project action that:

    (i) Are designated planned actions by an ordinance or resolution adopted by a county, city, or town planning under RCW 36.70A.040;

    (ii) Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with (A) a comprehensive plan or subarea plan adopted under chapter 36.70A RCW, or (B) a fully contained community, a master planned resort, a master planned development, or a phased project;

    (iii) Are subsequent or implementing projects for the proposals listed in (a)(ii) of this subsection;

    (iv) Are located within an urban growth area, as defined in RCW 36.70A.030;

    (v) Are not essential public facilities, as defined in RCW ((36.70A.200)) 36.70A.030; and

    (vi) Are consistent with a comprehensive plan adopted under chapter 36.70A RCW.

    (b) A county, city, or town shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the jurisdictional boundaries of the county, city, or town and may limit a planned action to a time period identified in the environmental impact statement or the ordinance or resolution adopted under this subsection.

    Sec. 7.  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.  Any governmental action may be conditioned or denied pursuant to this chapter:  PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are 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 action may be conditioned only to mitigate specific adverse environmental impacts which are identified in the environmental documents prepared under this chapter.  These conditions shall be stated in writing by the decisionmaker.  Mitigation measures shall be reasonable and capable of being accomplished.  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.  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.

(2) In the siting of essential public facilities through the procedures of a county-wide planning policy under RCW 36.70A.210, the governing body of a city or county may identify mitigation measures in the environmental impact statement and impose those as conditions upon the siting decision.

    Sec. 8.  RCW 82.02.090 and 1990 1st ex.s. c 17 s 48 are each amended to read as follows:

    Unless the context clearly requires otherwise, the following definitions shall apply in RCW 82.02.050 through 82.02.090:

    (1) "Development activity" means any construction or expansion of a building, structure, or use, any change in use of a building or structure, or any changes in the use of land, that creates additional demand and need for public facilities.

    (2) "Development approval" means any written authorization from a county, city, or town which authorizes the commencement of development activity.

    (3) "Impact fee" means a payment of money imposed upon development as a condition of development approval to pay for public facilities needed to serve new growth and development, and that is reasonably related to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development.  "Impact fee" does not include a reasonable permit or application fee.

    (4) "Owner" means the owner of record of real property, although when real property is being purchased under a real estate contract, the purchaser shall be considered the owner of the real property if the contract is recorded.

    (5) "Proportionate share" means that portion of the cost of public facility improvements that are reasonably related to the service demands and needs of new development.

    (6) "Project improvements" mean site improvements and facilities that are planned and designed to provide service for a particular development project and that are necessary for the use and convenience of the occupants or users of the project, and are not system improvements.  No improvement or facility included in a capital facilities plan approved by the governing body of the county, city, or town shall be considered a project improvement.

    (7) "Public facilities" means the following capital facilities owned or operated by government entities:  (a) Public streets ((and)), roads, and other transportation facilities; (b) publicly owned parks, open space, and recreation facilities; (c) school facilities; and (d) fire protection facilities in jurisdictions that are not part of a fire district.

    (8) "Service area" means a geographic area defined by a county, city, town, or intergovernmental agreement in which a defined set of public facilities provide service to development within the area.  Service areas shall be designated on the basis of sound planning or engineering principles.

    (9) "System improvements" mean public facilities that are included in the capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements.

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