Thurston & Lewis County Case Studies from the Appellant’s Perspective Tim Trohimovich, AICP, JD Planning Director

Futurewise (formerly 1000 Friends of Washington)  Non-profit 501(c)(3) organization  Our mission at Futurewise is to promote healthy communities and cities while protecting working farms and forests and shorelines for this and future generations  What we do: –Research and analysis –Advocate for better planning and to improve the Growth Management Act (GMA)  Local governments  State agencies & the legislature –Assist citizen groups and the public –Appeal plans and regulations that violate the GMA

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

GMA Counties Gray: CARL counties Darkest: Western Board Counties Blue (Dark) Stipple: Central Board Counties Light (Buff): Eastern Board Counties

Duty to Review and Revise  A county or city shall take legislative action to review and, if needed, revise its comprehensive land use plan and development regulations to ensure the plan and regulations comply with the requirements of this chapter according to the time periods specified in subsection (4) of this section. RCW 36.70A.130 (1)(a)  CARL counties and cities must review and revise designations of natural resource lands and critical areas and critical areas regulations. RCW 36.70A.130 (1)(b)

Periodic Update Deadlines 12/1/ 2004 Clallam, Clark, Jefferson, King, Kitsap, Pierce, Snohomish, Thurston, and Whatcom Counties 12/1/2005 CAOs 12/1/2006 Cowlitz,* Island,* Lewis,* Mason, San Juan, Skagit,* and Skamania  Counties 12/1/2006 CAOs 12/1/2007 Benton,* Chelan,* Douglas,  Grant,* Kittitas,* Spokane,* and Yakima* Counties 12/1/2007 CAOs 12/1/2008 Adams,  Asotin,  Columbia,  Ferry,  Franklin,* Garfield,  Grays Harbor,* Klickitat,  Lincoln,  Okanogan,  Pacific,  Pend Oreille,  Stevens,  Wahkiakum,  Walla Walla,* and Whitman  Counties  Ten year update county and some cities *Ten year update cities

Summary of Thurston County Decision  Issue 1: Rural Densities Greater than One Dwelling Unit per Five Acres –21,939 acres of rural land with densities equal to or greater than one dwelling unit per two acres –County argued that the areas complied with GMA because they predate the GMA –Board holds that county must bring these areas into compliance with LAMIRD requirements in RCW 36.70A.070(5)(d) adopted after the county’s 1995 comprehensive plan –Court of Appeals affirms

Summary of the Thurston County Decision (continued)  Issue 2: No Variety of Rural Densities –Only five acre designations and zones –County’s attempt to include natural resource lands as rural densities violates GMA –County could use innovative techniques to provide a variety of rural densities, but the comprehensive plan did not show they would achieve a variety of rural densities –So no variety of rural densities –Court of Appeals affirms that zoning provided no variety of rural densities –As to innovative techniques, Court of Appeals rules the Western Board shifted burden of proof

Summary of the Thurston County Decision (continued)  Issue 3: Oversized Urban Growth Areas (UGAs) –60 percent larger than needed –No market factor –Violates Diehl requirement that the UGA be based on the OFM projections –Court of Appeals affirms  On February 5, Supreme Court grants Thurston County’s petition for review and will hear the appeal, perhaps as early as March 2008

Summary of the Thurston County Decision (continued)  Issue 4: Failure to Designate and Protect Agricultural Lands of Long-Term Commercial Significance –Actual use criteria violates Benaroya I decision –20 acre parcel size criteria violates requirement to consider long-term commercial significance factors –Court of Appeals affirms actual use criteria ruling –Court of Appeals reverses Board on predominate parcel size, ruling that county could use that as a non- exclusionary factor

Summary of the Lewis County Decision  Agricultural land is: –Land not characterized by urban growth –Primarily devoted to the commercial production of agricultural products enumerated in RCW 36.70A.030(2), including land in areas used or capable of being used for production based on land characteristics, and –long-term commercial significance for agricultural production, as indicated by soil, growing capacity, productivity, and whether it is near population areas or vulnerable to more intense uses

Summary of the Lewis County Decision (continued)  Counties may consider the development- related factors enumerated in WAC (1) in determining which lands have long-term commercial significance  Department of Community, Trade, and Community development has started to update its minimum guidelines including agricultural and forestry designation criteria

Summary of the Lewis County Decision (continued)  Must conserve natural resource lands  Counties may choose how best to conserve designated lands as long as their methods are “designed to conserve agricultural lands and encourage the agricultural economy.” RCW 36.70A.177(1)  Agreed with the Board that many allowed uses did not conserve agricultural land and violated GMA

Lessons  Listen to the public, they may be right  The periodic updates require counties and cities to review and revise their comprehensive plans and development regulations to comply with GMA goals and requirements  Make the findings required by RCW 36.70A.130 for a periodic update, otherwise the public will be confused and the county or city may face a failure to adopt appeal

What is Likely to Happen on Remand: Thurston  Supreme Court –Will hear Thurston County’s appeal –Decision likely in late 2008 or 2009  Western Board has ruled that the county must apply its new agricultural designation criterion, remanded again to county  Western Board has held that the Rochester LAMIRD included undeveloped land and so violated the GMA –Remanded again to Thurston County –Water association and property owner appeal to Thurston County superior court  Western Board has stayed variety of rural densities issue  Thurston County adopted new rural comprehensive plan and development regulations –Appealed to Western Board –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 merits

Lewis County on Remand  Lewis County has redone its agricultural lands designation criteria, designations, and development regulations  Futurewise and citizens arguing they are non-complaint  One property owner argues property was erroneously designated