BENAROYA, ET AL., Petitioners,  and  SKCAR and BIAW,  Intervenors,  v.  CITY OF REDMOND,  Respondent.

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Consolidated Case No. 95-3-0072 FINAL DECISION AND ORDER

I. Procedural Background

On October 3, 1995, the Board issued an Order of Consolidation and Amended Notice of Hearing ( the Order) in the above-captioned case.The Order consolidated the two cases and assigned Case No. 95-3-0072.

On November 8, 1995, the Board received a “Motion to Intervene as a Party by Seattle-King County Association of Realtors (SCKAR) and Building Industry Association of Washington (BIAW)” (the Motion to Intervene).

On November 14, 1995, the Board issued a “Prehearing Order and Order Granting Motion to Intervene by Seattle-King County Association of Realtors and Building Industry Association of Washington” (the Prehearing Order).

On January 5, 1996, the Board issued an “Order on Motions to Supplement the Record.”

On January 9, 1996, the Board issued an “Order on Dispositive Motions and Motion to Intervene” (the Order on Dispositive Motions).The Order on Dispositive Motions dismissed with prejudice Legal Issue No. 19 as set forth in the Prehearing Order.

On January 24, 1996, the Board received “King County’s Motion to Request Status as Amicus Curiae” (County’s Motion) together with “Amicus Brief of King County” (County’s Brief).On this same date, the Board received “Motion to File Amicus Curiae Brief in Support of City of Redmond” from Larry C. Martin and Marsha L. Martin, themselves and on behalf of the Hollywood Hill Association, the Puget Sound Farm Trust, Preserve Land for Agriculture Now (PLAN), the Sammamish Valley Grange and the King County Pomona Grange (the Martin Motion), together with an “Amicus Curiae Brief in Support of City of Redmond (the Martin Brief).

The Board held a hearing on the merits at 9:45 a.m. on Wednesday, January 31, 1996, in the conference room on the 53rd floor of Two Union Square in Seattle, Washington.Joseph W. Tovar, Presiding Officer in this matter, and M. Peter Philley appeared for the Board.Elaine L. Spencer represented Benaroya and Cosmos, Michael A. Spence represented SCKAR/BIAW, and James E. Haney represented the City.Also present were Marsha Martin, representing Martin, et al., and Kevin Wright representing King County.Court reporting services were provided by Jean M. Ericksen, RPR, of Robert H. Lewis & Associates, Tacoma.No witnesses testified.Oral argument was first heard on the County’s Motion and the Martin Motion.

The Presiding Officer orally granted the County Motion and Martin Motion.In response to argument by Benaroya/Cosmos, the Presiding Officer ordered that additional post-hearing briefing responding to the County Brief and the Martin Brief would be permitted until 4:00 p.m. on Tuesday, February 13, 1996.Subsequently, no post-hearing briefs were filed.

II. FINDINGS OF FACT

2.The City commissioned the firm of Jones & Stokes Associates, Inc., to study agricultural uses in the Sammamish Valley.This study was completed in 1989.Conclusions from these studies were repeated in the Planning Department Land Use Technical Report in January 1995.Exhibit 26.

3.The purpose of the Jones & Stokes study was to provide information to the City about the then-current agricultural zoning in the Sammamish Valley and to analyze the implications of maintaining or altering that zone designation.Exhibit 26, at 1-1.

4.The Sammamish River flows generally in a North-South direction through Redmond.Most of the Sammamish Valley lies within the 100-year floodplain, as identified by the Federal Emergency Management Agency.Both the Benaroya property and that portion of the Cosmos property between the base of the slopes and the Sammamish River lie within the floodplain.DEIS, at 3.3-1 and Appendix A-4 and Exhibit 26, at T 4-13.

5.The Benaroya property is a 32-acre parcel owned by the Benaroya Shareholders Trust that is located on the northeast corner of 116th Street and Willows Road.The Plan designates this land as agricultural.Benaroya’s Prehearing Brief (PHB), at 4.

6.The Benaroya property was acquired by the Benaroya Company in 1969, two years after it was originally zoned Agriculture by the City of Redmond.Benaroya’s intent was to build a light industrial park. Major arterials bound the property on two sides.Benaroya’s PHB, at 4 and 5.

7.The Benaroya property lay fallow for 25 years, although in 1982 the property was leased to Robert Muller for use in a dairy operation.That operation ceased no more than three years later.Since then, the property has remained fallow.Exhibit 55, 61-62, 66-67.

8.Cosmos represents property owners who own land within the city limits referred to as the “Redmond 74” site.Ex. 55, August 24, 1994 letter from Oscar Del Moro to Tim Trohimovich.The property consists of 74 gross acres of vacant land located west of the Redmond-Woodinville Road.Ex. 55.The predominant natural features of the site are steep slopes along the center of the property, meandering forested ravines, and a large flat parcel of land along the Sammamish River Valley.Ex. 678, November 3, 1994 letter from Oscar Del Moro to Roberta Lewandowski, at 4.In addition, Cosmos’ proposal shows steep slopes and wetlands, the latter within property designated as agricultural near the Sammamish River. Ex. 678, at “Use/Analysis Map.” Prior to adoption of the Plan, the property was zoned at 1 du/acre.Ex. 491, at 5.

Cosmos proposed developing the Redmond 74 site as follows:

45.35acres as detached single family

8.65acres as limited mixed-use neighborhood commercial

20.00acres as agricultural

74.00 gross acres.Ex. 678 letter, at 2-5.

The Cosmos proposal was to have the 45-acre parcel designated as provided in Plan polices LU-113 and LU-115, corresponding to large lots and low-moderate density residential; the 8.65 acres as LU-118; and the 20 acres as LU-111 agricultural.Ex. 678, letter, at 2-5; and “Requested Land Use” map.The 8.65 acre parcel is within a triangle formed by the intersection of the existing Redmond-Woodinville Road, and proposed 160th Ave. NE.Ex. 55.

City planning staff and the city’s planning commission recommended approval of the Cosmos proposal.Ex. 55.However, the City Council modified the proposal, including removing the LU-118 neighborhood commercial designation for the 8.65 acres.Ex. 491 and Plan, at A-1-11.

The Plan’s final designation of the property was a maximum total density on the property west of 160th Ave. NE of 4 du/acre.This designation covers 65.35 gross acres.For the 8.65 acre portion of the site, the maximum density was 6 to 8 du/acre with a 50% bonus density (additional 4 du/acre maximum) permitted if senior housing with the appearance of single-family residences were proposed.Plan, at A-1-11; see also Ex. 55 and 491.

Of the 65.35 gross acres outside of the triangular parcel created by the proposed road, 160th Ave., NE, 15 acres was not buildable due to steep slopes.Ex. 491, at 10.Another 20 acres was buildable but only at 1 du/acre because of an agricultural designation.Ex. 491, at 4 and 10.The net buildable acreage of the site is 59 acres.

9.Cosmos became involved in the Universal Holdings property in 1994, at a time when agricultural zoning was applied to the west 20 acres adjacent to the Sammamish River.This is the same portion of the property to which the Agriculture designation is applied in the 1995 Plan at issue here.Cosmos’ intent was to develop the property as a mixed commercial/residential project.Exhibit 678.

10.A Draft Environmental Impact Statement (DEIS) evaluating the draft comprehensive plan was issued in August 1994.A Final Environment Impact Statement (FEIS) was issued in March 1995.On February 28, 1995 the Redmond City Council held a study session on the Draft and Final Environmental Impact Statements on the draft comprehensive plan.Plan, at B-10.

11.On March 29, 1995 the Planning Commission recommended the Comprehensive Plan to the City Council.Plan, at B-2.

12.The City Council began its review of the Planning Commission’s recommended Comprehensive Plan in March, 1995, when the Council conducted a study session of the Draft and Final EIS’s.This review progressed to a joint public hearing with the Planning Commission on March 22, 1995.Plan, at B-2.

Nine ad hoc City Council committee meetings were held from March through June 1995.There was an open house on May 20, 1995 and two neighborhood meetings in late May, 1995.In addition, study sessions were held by the Council at which the public was allowed to listen to proposed changes to be made and at which the last fifteen minutes was reserved for public comment.Plan, at B-2 and B-4.

13.During its review process, the City Council made changes to the Draft Comprehensive Plan that was submitted by the Planning Commission.These changes included a reduction in single family neighborhoods from a maximum density of 8 dwelling units (du) per acre to a maximum density of 6 du per acre across the city.The Council also reduced development in the North Redmond annexation area to 4 du per acre in parts, with a 1 du per acre in the remainder.The average density of all residential land in Redmond as a whole was reduced from 7 to six and one half du per acre.Similarly, the potential cluster development in the Bear Creek neighborhood was reduced from 10 to 6 du per acre.In addition, the Council limited the Downtown area to buildings of five to six stories and reduced the potential dwelling units by 1,000 units.Plan at A-1-4 and A-1-5.

14.The Plan based its net new household growth on Appendix 2 of King County’s County-wide Planning Policies (CPPs).The CPP range of net new households for the City of Redmond is from 9,637 to 12,760 households calculated at 2.2 persons per household.The Plan accommodates 9,878 net new households in the next 20 years; the base year of 1993 accounted for 16,517 households calculated at 1.95 persons per household.Therefore, by the year 2012, the Plan will accommodate a total of 26,395 housing units.Plan, Findings of Fact Nos. 41 and 42, at B-7; King County Comprehensive Plan, Technical Appendix D, at D-2.

15.Redmond’s projected 2012 employment is 68,500.This is an increase of 29,500 jobs over the base year (1993) figure of 39,000.The projected figure is at the bottom of, but still within,the CPP range established for Redmond of between 29,500 to 34,750 jobs.Plan, at A-1-1 and B-7.

16.The Plan states that Redmond’s projected population by the year 2012 will be 51,470.In the 1993 base year, Redmond’s population was 38,987.The Planning Commission’s proposal contained a population target of 54,700 people for the year 2012.Plan, at A-1-1 and B-7.

17.Public notice of the Council’s July 18, 1995, hearing was published on July 5, 1995 in TheSammamish Valley News.The City issued a press release on July 10, 1995 giving the time, date and location of the hearing and announcing that copies of the proposed changes could be obtained starting on July 14, 1995.Notice of the hearing was published in two local newspapers.In addition, the date of the hearing was announced at City Council meetings and was posted in City Hall, the Redmond Post Office and the Redmond Public Library.Exhibit 539 and Plan, at B-5.

18.A final list of proposed changes was available to the public on July 14, 1995.Plan, at B-2.

19.Cosmos commented on the changes by letter dated July 18, 1995 which opposed changes to the Plan.Letter from Oscar Del Moro to Mayor and Council, Ex.830.

20.On July 18, 1995, the Council took public comment.Intervenor SKCAR commented on the changes by appearing and testifying at this hearing.The Council formally adopted the Comprehensive Plan at this meeting, as Ordinance No. 1847.The Plan became effective on July 31, 1995.Exhibit Plan, at 3 and B-2; Exhibit 12.

21.There are eleven amendments to the Plan with which the Intervenors take issue.The Intervenors list these amendments as follows:

1.Policy FV-2 was amended to reduce Redmond’s population projection from 54,600 to 51,470.

2.Policy LU-21 was amended to reduce the combined density of all primary residential Comprehensive Plan designations and zoning districts from seven to six-and-a-half du per acre;

3.Policy LU-28 was amended to reduce densities on portions of semi-rural land north of Bear and Evans Creeks and east of Avondale road from 10 to 6 du per acre;

4.Policy LU-34 was renumbered LU-30, and was amended to apply the Plan’s residential zoning densities in developed single family residential neighborhoods only when they are consistent with the neighborhood’s built densities and development pattern;

5.Policy LU-31 was amended to reduce densities for newly developing neighborhoods from six to five units per acre, and to add a new requirement that the densities must be consistent with neighborhood policies;

6. Policy LU-32 was amended to reduce densities from eight to six units per acre, and to add a new requirement that the densities must be consistent with neighborhood polices;

7.Policy LU-118 was amended to eliminate R-9 zoning and to condition R-8 zoning on being allowed by a neighborhood plan;

8.Policy LU-123 was amended to reduce base residential densities to a range of four to six units per gross acre rather than allowing six to eight units per gross acre;

9.Policy LU-124 was amended to change the range of allowable densities to a range of eight to eighteen units per gross acre, rather than allowing nine to eighteen units per gross acre;

10. Policy N-NR-8 was amended to allow only four units per acre, rather than allowing four to eight units per acre;

11. Policy N-NR-38 was deleted.If allowed to remain it would have permitted owner occupied housing in areas of six to eight units per acre using alternative housing types such as small lot single family homes and zero lot line development.Intervenors’ PHB, at 3-4.

23.The Plan contains a policy regarding Neighborhood Commercial Centers.This policy is designed to provide small-scale neighborhood centers that would include convenience goods and services to serve the needs of the surrounding community.The object of these centers is to provide a focal point for the neighborhood that would reduce the length and frequency of automobile trips.Plan, at 74.

24.The City had not adopted aTransfer of Development Rights (TDR) program, as of the date of the adoption of the Plan. At the hearing on the merits, the City stated that it had adopted a TDR program the previous evening, Tuesday, January 30, 1996.No documentary evidence of the adoption of a TDR program by the City is contained in the Board’s record.

iii. DISCUSSION AND CONCLUSIONS

A. AGRICULTURE ISSUES

Legal Issue No. 1

Petitioners’ Position

City’s Position

Amicus Curiae King County and Martin

The County also asks the Board to consider several policy reasons in support of its position.First, the area-wide approach furthers the Act’s policy of preserving agricultural land.Also, the Benaroya property is bordered by parcels that have agricultural designations.If the Benaroya property is allowed to be developed for residential or commercial purposes there will be friction because such land uses are not compatible with agricultural land uses.

Martin agrees with the County and emphasizes its argument that a parcel-by-parcel approach allows the land owner to make zoning decisions that should be made instead by local governments.

Discussion

Agricultural lands that are not already characterized by urban growth and that have long-term significance for the commercial production of food or other agricultural products;

The term “agricultural land” is defined at RCW 36.70A.030(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 byRCW 84.33.100 through 84.33.140, finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.

“Long-term commercial significance” is defined at RCW 36.70A.030(10):

“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.

RCW 36.70A.060(1) required the City to adopt development regulations on or before September 1, 1991, to assure the conservation of agricultural lands designated under RCW 36.70A.170.RCW 36.70A.060(4) provides that agricultural land of long-term significance cannot be designated within a UGA under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.

The record shows that the Benaroya property has not been primarily devoted to commercial agricultural production for many years.See Finding of Fact No. 7.Although these lands are not already characterized by urban growth, in order to be designated as agricultural lands under the GMA, they must both be primarily devoted to agricultural uses and have long-term significance for the commercial production of food or other agricultural products.The record does not reveal either.

In contrast, there is no mention in the record regarding the subject of whether the Cosmos property is presently or has been devoted to commercial agricultural production.Therefore, the Board cannot determine whether or not a portion of that property meets the Act’s definition of “agricultural lands.”However, as noted in the discussion of Legal Issue No. 2, absent a TDR program, the City was without authority to designate as agricultural land any property within a UGA, including the Cosmos property.

Conclusion No. 1

Legal Issue No. 2

Petitioners’ Position

City’s Position

At the hearing on the merits, the City asserted that it had adopted a transfer of development rights program the previous night, January 30, 1996.

Discussion

Forest land and agricultural land located within urban growth areas shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.

Policy LU-8 provides:

Redmond shall adopt a transfer of development rights program and purchase of development rights program for properties designated Agriculture.The transfer of development rights program should allow density transfers to contiguous uplands within the same ownership outside the Agriculture designation and to designated receiving areas.Receiving areas shall not be located within existing, developed single-family neighborhood.

The Benaroya and Cosmos properties are both located within a UGA.There is no dispute that the City did not have a program authorizing the transfer or purchase of development rights adopted on the date that it designated the Benaroya property and a portion of the Cosmos property as agricultural.Therefore, by the terms of RCW 36.70A.060(4), the City was without authority to designate any land within Redmond as “agricultural” at the time it adopted its Plan.

Regardless of the answer to Legal Issue No. 1 (i.e. do the Cosmos and/or Benaroya parcels meet the Act’s definition of “agricultural lands”), the Board holds that the City was without authority to make any agricultural lands designations within a UGA prior to its enactment of a program authorizing a transfer or purchase of development rights pursuant to RCW 36.70A.060(4).Because, by the City’s own admission, it did not adopt such a program until January 30, 1996, it was without authority in July of 1995 to designate any portion of the Cosmos or Benaroya properties as agricultural lands.The City may not designate any agricultural lands until and unless it complies with the requirements of RCW 36.70A.060(4).

Conclusion No. 2

Legal Issue No. 3

Discussion

Conclusion No. 3

Legal Issue No. 4

Discussion

Conclusion No. 4

B. HOUSING supply ISSUES

Legal issues 8, 14, 16 and 17 all generally address the question of how the housing provided for in the Plan complies with the GMA’s goals and requirements, the CPPs and the plans of adjacent jurisdictions.They collectively cite key sections of the Act and the CPPs.In addition, the Board has taken official notice of the King County Comprehensive Plan, specifically Technical Appendix D, which explains the genesis and the assumptions that support the household allocation made to Redmond by the CPPs.

The GMA requires cities and counties to adopt comprehensive plans which are coordinated and consistent with the comprehensive plans ofbordering counties and cities and other counties and cities with related regional issues.RCW 36.70A.100.In order to effectuate this goal, counties must adopt CPPs.RCW 36.70A.210(1).The CPPs provide a policy framework for cities within the county to ensure that the coordination and consistency mandates of RCW 36.70A.100 are met.See RCW 36.70A.210(1).The CPPs interact with the development of comprehensive plans “as part of a hierarchy of substantive and directive policy.”[4]

The Board clarified this hierarchy in Aagaard v. City of Bothell (Aagaard), CPSGMHB Case No. 94-3-0011 (1995).The Board said:

[T]he decision-making regime under GMA is a cascading hierarchy of substantive and directive policy, flowing first from the planning goals to the policy documents of counties and cities (such as CPPs, IUGAs and comprehensive plans), then between certain policy documents (such as from CPPs to IUGAs and from CPPs and IUGAs to comprehensive plans), and finally from comprehensive plans to development regulations, capital budget decisions and other activities of cities and counties.See RCW 36.70A.120.Aagaard, at 6.

In order to achieve consistent and coordinated comprehensive plans among the cities within a county, these plans must be consistent with the policy framework set forth in the CPPs.

The hierarchy of policy demonstrates the focus of GMA planning on local governments. The comprehensive plans guide specific actions of local governments by balancing local, regional and state interests in the adoption of coherent policies.Aagaard, at 7. Local governments and agencies are responsible for implementing these policy directives.Thus, “[w]ithin a framework of certain state mandates (e.g. the projected twenty-year population must be accommodated, resource and critical areas must be protected) and regional policies (i.e., CPPs and UGAs), the GMA leaves broad discretion for locally adopted comprehensive plans to reflect local choices.”Aagaard, at 7.

Legal Issue No. 8

Petitioner’s/Intervenors’ Position

The Petitioners argue that the City Council’s reduction of the density in the single-family neighborhoods and reduction of the ratio of multi-family to single-family units was inconsistent with the GMA goals to reduce sprawl and provide affordable housing.Petitioners PHB, at 31.Petitioners cited to the City Planning Director’s admonition to the Council, during its Plan review, that it was significantly reducing residential density city-wide while simultaneously increasing employment:

... every decision that’s been made of almost two days of decisions has already reduced the overall housing capacity.We’ve already reduced the capacity of single family [R-4/8 to R-4/6].I have no doubt that you’ll do more of that tonight... and now we’re reducing the capacity of multifamily.We’ve done it downtown and we’re doing it... you’re proposing this for Overlake.We don’t want the rural area to change east of us.We don’t want the rural area to change north of us.But we want to take all these jobs which raise — create tremendous demand for housing in Redmond.It just doesn’t hold together as a plan.Petitioners’ PHB, at 31-32.

The Intervenors object to the City’s use of a 1.95 person per household (PPH) factor to determine population growth for Redmond over the next 20 years. The Intervenors argue that the PPH, combined with the household target of 9,878, results in a population capacity that violates the CPPs and the Act.

The Intervenors also object to the requirement that all density designations be“consistent with the neighborhood’s built densities and development pattern.”The Intervenors refer to this provision as a “neighborhood veto” that would essentially allow neighborhoods an opportunity to reduce the City’s residential development capacity even further.See Intervenors’ PHB, at 9.

Redmond’s Position

Discussion

Even though Redmond’s Plan is facially consistent with the proposed household target range in the CPPs, the Intervenors question whether this goal will be met. The Intervenors argue that the City’s use of a 1.95 personPPH factor will cause the Plan to fail to meet the CPPs’ growth targets.They also claim that the Plan’s density capacities will be reduced to such a level that the household target will not be met because of the operation of Policies LU-30 through LU-32 that will require future zoning actions to be consistent with built neighborhood densities and future neighborhood policies.

a.Will the City’s use of a 1.95 PPH figure cause the Plan to be inconsistent with the CPP growth targets?

RCW 36.70A.110(2) requires counties to designate urban growth areas (UGAs) based on the population projection made by OFM.In order to give meaning to this process, counties must disaggregate OFM’s county-wide projection by allocating population projections to the various cities within it.See Edmonds, at 31.Counties can either allocate by numbers of people or convert the population projection to persons per household (PPH).King County elected to do the latter.See Vashon-Maury, at 20.

The outcome of this issue centers on how the County allocated these population projections.The County took its OFM population projection and converted it into households by using a 2.2 PPH factor.The County then set projected growth targets for cities in the County for the year 2012 in households.

The County’s household range for Redmond is from 9,637 to 12,760 net new households.The City’s Plan accommodates 9,878 new households by 2012 and is therefore on its face consistent with the CPPs.However, the City altered the County’s allocation by using a 1.95 PPH factor.The difference is illustrated below:

Population Projections for Redmond — Difference between 2.2 PPH & 1.95 PPH

1993 BaseProjected PopulationProjected Total

PopulationIncrease By 2012Population by 2012

The City’s population projection is inconsistent with the CPPs because of the significant difference in population numbers projected by 2012.

The Board also notes that the City’s projection is also inconsistent with its own Plan.If the City had also used its new household figure and multiplied it by the 1.95 PPH factor, then the City should have planned for 58,249[8] people instead of the lower 51,470 that was used in the Plan.The following table illustrates this:

1993 BaseProjected Population Projected Total

PopulationIncrease By 2012Population by 2012

How did the City arrive at its population projection of 51,470 people?The projection was arrived atby deflating the past and existing PPH in Redmond.This deflation is set forth in the following table and is based on the Council’s findings of fact for the Plan.

Base YearNet New PPHTotal

# of HouseholdsHouseholdsFactorPopulation

16,517+9,878x1.95=51,470

The City must comply with the County’s population allocation and, except as noted below, cannot unilaterally modify the PPH assumptions upon which it was based.This is true whether the County gives cities a range of allocations or simply one number.This is especially true here where the County gave Redmond a range of choices.A city is not without recourse, however, if it disagrees with the County’s allocation.The Board recognizes that a local jurisdiction may be able to document local circumstances to justify a PPH different from that of some other jurisdiction or the County as a whole.However, in order for such differences to be reflected in GMA planning, they must be acknowledged and agreed to by the County when it makes its population allocations.Otherwise, the County’s ability to meet its duty to appropriately size the UGA to meet the twenty-year projected population growth will be seriously impaired, if not thwarted.

The Board will remand the Plan with instruction to the City to make one of two choices.First, the City could adjust its PPH factor to 2.2 to correspond to the assumption that underlies the household allocation in the CPP.In that event, the City must also make appropriate revisions to its 2012 population and any other population-driven assumptions contained in its Plan.The City’s second choice would be to retain its 1.95 PPH assumption, and instead make an upward adjustment to the number of future households sufficient to accommodate the 21,201 to 28,072 additional people allocated to the City.

Regardless of which choice the City makes to comply with this Order, it is free to petition the County to amend the household allocation to Redmond based on “new information.” Alternatively, the City can simply wait and see if the market and other factors oblige the County to consider modification of Redmond’s allocation.The County has a statutory duty to re-calculate its CPPs/UGAs at least every ten years.RCW 36.70A.130(3).

For the Board to hold otherwise would result in a lack of the coordination and consistency among local governments that is required by RCW 36.70A.100.[10]While OFM’s twenty-year population projection to an individual county –– as well as that county’s allocation of the projected population to its cities –– can be characterized as simply “best guesses” about the future, there can be no effective growth management without such a forecasting and allocation exercise.In order for state, county and city governments to coordinate their efforts to manage growth, they must be operating from the same set of assumptions and policy directives.To determine how and by whom growth will be accommodated requires a shared understanding of how much growth is coming (i.e., the OFM projection) and where specifically it will be directed (i.e., the sub-county allocations to cities).[11]

Further, to allow the City to “under-plan” by manipulating the allocations would mean that it will not be planning for the “x” number of people that the County thinks are coming to Redmond.Redmond is free to plan for more than the allocation, possibly even beyond the high end of the allocation (see WSDF I, at 55 ) as long as it can provide for the necessary capital facilities and services; however, it may not plan for less.By lowering the PPH, it has effectively done so.

It must be remembered that the County’s duty under RCW 36.70A.110 is to accommodate the county-wide population growth projected by OFM.Expressing the projected population increase as a number (or range) of households is logical, because it is easier to relate a demand expressed in such terms to a supply of land designated at various densities.[12]Nevertheless, the record does not suggest that the County contemplated that cities would manipulate the PPH assumptions after the CPPs assigned them their household targets.[13]

The County needs to be able to rely upon cities to accommodate the population that it has allocated to them.Redmond must therefore meet the household growth target and comply with the County’s population projection.The City has met the first requirement, but fallen short of the second. To allow a city to meet the household range, but then deflate its population projection, would constitute an inconsistency between the City’s Plan and the regional framework to accommodate growth –– namely, the UGAs and CPPs adopted by the County.

The Board holds that Redmond must recalculate its persons per household figure, and therefore its city-wide population forecast, so that it complies with the assumption that underlies the County’s household allocation.Alternatively, the City may retain its PPH factor, but then must increase the number of households so that it accommodates the population implicit in the county’s household allocation.

b.Do the Plan policies that direct residential zones to be consistent with built neighborhood densities and future neighborhood policies constitute a neighborhood veto which will, in effect, enable the City to lower density beyond what is set forth in the Plan?

The City Council’s amendments to the adopted Plan policies dealing with residential densities appear on page A-1-4 to Exhibit A to Ordinance No. 1847.The Council’s revisions, shown below with underlining and strikethroughs, provide:

LU-34 30In developed single-family residential neighborhoods, residential zones shall be applied in a manner that is consistent with the neighborhood’s built densities and development pattern discourages excessive re-subdivision of built lots in existing, single-family residential neighborhoods.

LU-310 For newly developing neighborhoods, a four-unit-per-acre residential zone should be applied to areas which comply with the Low-Moderate Density Residential designation criteria, but due to land capability, public facility limitations, neighborhood policies, or other factors, are not designated for or suitable for development at a greater density.

LU- 31[14]For newly developing neighborhoods, a five six unit-per-acre residential zone should be applied to single-family residential neighborhoods that comply with the Low-Moderate Density Residential designation criteria and have public facilities and land capability that is suitable for development at an overall density of five six units per gross acre where this density is consistent with neighborhood policies.

LU-32For newly developing neighborhoods, ana sixeight-unit-per-acre residential zone should be applied to areas that meet the Low-Moderate Density Residential designation criteria, have land with the capability of being developed at sixeight units per gross acre without significant adverse environmental impacts, and can be adequately served with public facilities and services, and where such a density is consistent with neighborhood policies.(emphasis added)

In addition, policy LU-118 was amended to eliminate R-9 zoning and to condition R-8 zoning on its being “allowed by a neighborhood plan or this chapter.”

The City claims that these amendments were made by the Council to assure internal consistency in the Plan between allowed densities and to assure the preservation of existing single-family neighborhoods, as required by the 1995 amendment to RCW 36.70A.070 passed as Chapter 307, Laws of 1995.[15]

Both Cosmos and the Intervenors argue that the above cited amendments to Redmond’s policies amount to a “neighborhood veto” which would allow zoning densities to be reduced below the range provided in the Plan.For example, an area that is designated Low-Moderate DensityResidential,which allows for 4-6 du per acre, could, under the language in these policies, possibly be reduced to 3 du per acre if the City were to subsequently determine that such a reduction in density was necessary to be consistent with either “the neighborhood’s built densities and development pattern”, per LU-30, or with “neighborhood policies”, per LU-31, LU-310 and LU-32.Intervenors contend that these policies invite the City, in response to neighborhood opposition, to reduce the development potential of Redmond’s neighborhoods below what the Plan ostensibly permits and, in effect, freeze the development density of neighborhoods at their pre-GMA levels.

The language in these policies is ambiguous.It is unclear what specific policies the City may potentially apply to the zoning of residential areas and what actual effect those policies will have on the ability of neighborhoods to achieve the densities ostensibly assigned by the Plan.Are these neighborhood policies to be set forth in neighborhood plans yet to be adopted?Are these other city-wide neighborhood policies, existing or yet to be adopted?Will these policies be used to help shape the physical form and type of improvements associated with new development or are they intended to reserve the City’s discretion to lower density below the ranges already designated in the Plan?

On their face, LU-30, LU-310, LU-31, and LU-32 appear to be intended, as the City claimed, to meet the direction of RCW 36.70A.070(2) to “[ensure] the vitality and character of established residential neighborhoods” and to provide for “the preservation, improvement, and development of housing, including single-family residences...”

The Board agrees that ensuring the vitality and character of neighborhoods is a legitimate city objective — indeed, it is directed by RCW 36.70A.070(2).However, the requirement to “ensure neighborhood vitality and character” is neither a mandate, nor an excuse, to freeze neighborhood densities at their pre-GMA levels.The Act clearly contemplates that infill development and increased residential densities are desirable in areas where service capacity already exists, i.e., in urban areas — while also requiring that such growth be accommodated in such a way as to “ensure neighborhood vitality and character.”The Board’s conclusion that these GMA objectives are not mutually exclusive rests upon several fundamental cornerstones of the GMA –– that cities are to be the focal points of new urban growth,[16] that the Act contemplates well-furnished and well-designed compact urban development[17], and that the development process must be timely, predictable and equitable, to developers and residents alike.See RCW 36.70A.020(6)(7)[18]

Accordingly, the Board holds that the City may not, under the guise of RCW 36.70A.070(2), use policies LU-30 through LU-32 to lower a neighborhood density below the applicable neighborhood density range set forth in the Plan.Such an interpretation of these policies would render the Plan internally inconsistent.In other words, it would be inconsistent for the Plan to designate a density of 4 - 6 du per acre in a certain neighborhood and then invoke Policies LU-30 through LU-32 to zone that area for a density of less than 4 du per acre.Likewise, the requirements for consistency at RCW 36.70A.120[19] would preclude a permit review from yielding a unit count (of lots or dwelling units) that is below the minimum density set forth in the Plan, absent some sort of clustering, transfer of development rights or other innovative land use management technique.

The City has argued that the policies in question were not intended to operate as a “neighborhood veto.”The Board cannot and need not determine the motivation for adoption of specific policies –– the scope of our inquiry is whether the challenged policies, on their face, comply with the Act.In this instance, the Board concludes that the Act does not permit a “neighborhood veto”, whether de jure or de facto, and the policies challenged here cannot achieve such an outcome.The ultimate decision-makers in land use matters under the GMA are the elected officials of cities and counties, not neighborhood activists or neighborhood organizations.Citizens provide input to the land use decision-making process, but “citizens do not decide.”See Poulsbo, et al., v. Kitsap County (Poulsbo), CPSGMHB Case No. 92-3-0009 (1993), at 36.

The decision-making regime under GMA places great importance on the comprehensive plan.A city may choose to undertake optional neighborhood planning, pursuant to RCW 36.70A.080; however, those neighborhood plans must comply with the Plan and the requirements of the GMA.Conversely, a city cannot “pick and choose” — to adopt some and not other neighborhood plans under the authority of the GMA.

In conclusion, the amended language in the LU-30 through LU-32 can operate to lower densities below the ranges set forth in the Plan.Therefore, the Board holds that these policies do not comply with the requirements of RCW 36.70A.070 and will remand them to the City with instructions to amend the Plan to make clear that these policies cannot operate to lower the residential densities below those set forth in the Plan.

Conclusion No. 8

The Plan is internally inconsistent as to its population projection and as to the population allocation to Redmond that is implicit in the CPP’s household allocation.The Plan will therefore be remanded with instructions to the City to either adjust its PPH to correspond to the 2.2 used by the County (together with appropriate adjustment to the 2012 City population) or retain its PPH assumption and increase the number of households (i.e., dwelling units) permitted by the Plan sufficiently to accommodate the population allocation implicit in the CPPs household allocations.

The Plan’s policies at LU-30 through LU-32 do not comply with RCW 36.70A.070.They will be remanded to the City with instructions to amend the Plan to make clear that policies cannot operate to lower the residential densities below those set forth in the Plan.

Legal Issue No. 14

Petitioner’s/Intervenors’ Position

In its reply brief, Cosmos also argues that, because Redmond is providing a low number of net new households and because affordable housing is based on a percentage of this total, Redmond is not providing its fair share of housing in terms of actual households.Further, the laws of supply and demand dictate that through this low net new household figure, housing prices will be driven up by restricted supply.One way to prevent this from occurring is to increase housing density.

The Intervenors question whether the City will be able to meet those percentages of affordable housing that it has planned for.They rely on a statement in the City’s Plan which says that “[t]he Comprehensive Plan is intended to be realistic and capable of being carried out (emphasis added).” Plan, at 15.The Intervenors contend that this statement requires that Redmond show how it intends to meet the affordability percentages in the plan.

City’s Position

Discussion

Encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock.

The GMA requires comprehensive plans to include a “plan, scheme, or design” for,

(2)A housing element ensuring the vitality and character of established residential neighborhoods that: (a) Includes an inventory and analysis of existing and projected housing needs; (b) includes a statement of goals, policies, objectives and mandatory provisions for the preservation, improvement, and development of housing, including single-family residences; (c) identifies sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multifamily housing, and group homes and foster care facilities; and (d) makes adequate provisions for existing and projected needs of all economic segments of the community.RCW 36.70A.070(2).[20]

The “economic segments” clause of .070(2)(d) repeats the “affordability” element of the planning goals.In addition, county-wide planning policies must “consider the need for affordable housing, such as housing for all economic segments of the population and parameters for its distribution.”RCW 36.70A.210(3)(g).

Consistent with these GMA mandates, King County adopted the following policies in its CPPs.King County’s CPP FW-28 states:

All jurisdictions shall provide for a diversity of housing types to meet a variety of needs and provide for housing opportunities for all economic segments of the population.All jurisdictions shall cooperatively establish a process to ensure an equitable and rational distribution of low-income and affordable housing throughout the county in accordance with land use policies, transportation, and employment locations.

In addition, policies AH-1 and AH-2 require each jurisdiction within the County to plan to meet the needs of all economic segments of the population.Also, AH-2 provides that all jurisdictions share equally in the distribution of affordable housing which will meet the needs of low and moderate income residents in the County.CPP AH-2, at 61.In order to meet these goals, the City is required to have 24 percent of its new household growth affordable to households with incomes between 0 and 50 percent of the county median income. AH-2 and Appendix 3.AH-1 requires a city to:

. . . plan for a number of housing units affordable to households with incomes between 50 and 80 percent of the County median household income that is equal to 17 percent of its projected net household growth.In addition, each jurisdiction shall plan for a number of housing units affordable to households with incomes below 50 percent of median incomes that is either 20 percent or 24 percent of its projected household growth.CPP AH-2, at 63.

Given these sections, has the City done enough to satisfy the requirements of the GMA and the CPPs?The Board holds that the City has satisfied the percentage goals of affordable housing mandate in the CPPs.

What does the GMA require cities and counties to do with regard to affordable housing? The verbs used in the housing sections are: “encourage,” “ensuring,” and “consider.”Subsection 2 of RCW 36.70A.070 has the most substantive mandate.This subsection requires comprehensive plans to include a plan, scheme or design for housing.Among its other provisions (a) - (c) as quoted above, the housing element must make “adequate provisions for existing and projected needs of all economic segments of the community.”

RCW 36.70A.070(2)(d).

This requirement is a separate duty from what counties must do in the county-wide planning policies.Thus, cities are required to plan under both the GMA mandate for comprehensive plans and must also follow the mandates of the CPPs applicable to its jurisdiction.All the county-wide planning policies need do is “consider the need for affordable housing.”RCW 36.70A.210(3)(g).King County’s CPPs go beyond what the GMA demands for county-wide planning policies, by setting forth actual percentage requirements for affordable housing for each UGA.Because the CPPs are binding on the City, it must follow them.Redmond has followed this CPP requirement by requiring 24 percent of its net new households to be affordable to households with 0 to 50 percent of the county median income.

Pages 91-99 of the Plan set forth the housing element.Redmond’s Plan divides its housing element into two main sections.The “Housing Needs” section outlines the housing needs that Redmond will face in the next 20 years.It includes an analysis of existing needs as well as an explanation of the CPP requirements.In this section, the Plan also recognizes that 24 percent of Redmond’s future households must be affordable to low-income households as defined in the CPPs.In addition, this section sets forth ways in which the City may ensure affordable housing.However, this section does not include any adopted policies or procedures for carrying out these goals.

Instead, the relevant housing policies are found in the second housing section entitled “Housing Framework Policies.”Policies HO-5 through HO-34 deal with housing affordability.Each of these policies is designed to carry out the affordability goals discussed in the “Housing Needs” section as well as fulfill the GMA planning goals.For example, Policy HO-16 provides that, in order to encourage the development of affordable housing, incentives and bonuses that are intended to minimize costs to the developer or builder shall be provided by the City.Plan, at 105.

The Intervenors question whether the City will be able to fulfill these policies because of the lower density zoning directed by the Plan.The Intervenors cite the City’s own requirement that the plans be “realistic” and “capable of being carried out” and suggest that the Plan must demonstrate how its housing element is realistic and capable of being carried out.

Nothing in the GMA or the CPPs requires Redmond to show a detailed plan as to how these policies will be achieved.There is nothing in the Plan or in the record that suggests the housing affordability policies are not capable of being carried out.The Board holds that Redmond’s housing policies fulfill the GMA requirement that the comprehensive plan “make adequate provisions for affordable housing.”The Plan also satisfies the CPP requirement that 24 percent of all new households be affordable to low-income households.

Conclusion No. 14

Legal Issue No. 16

Intervenors’ Position

Legal Issue No. 17

Petitioner’s/Intervenors’ Positions

The Intervenors assert that the Plan is inconsistent because it does not promote compact urban development.In support of this assertion, the Intervenors point to language used by the Puget Sound Regional Council, the King County Comprehensive Plan and the Board which emphasizes the desirability of compact urban development.See Intervenor’s PHB, at 25.

The Intervenors’ claim that the reduction of the city’s housing-to-jobs ratio to 0.36 contributes to inefficient development because this ratio contributes to sprawl and inefficient use of transportation facilities, forces Redmond and King County out of compliance with the GMA’s housing mandates, and contributes to adverse environmental impacts.

According to the Plan, the City’s population is expected to increase by 15,674 people by 2012.Similarly, the number of employees is expected to increase to 68,500 by 2012.This represents an increase of 29,500 jobs from the base year of 1993.

Currently Redmond provides 9,480 fewer households than are demanded by employees within the City.This figure is expected to increase to 14,500 households by 2012.Plan, at 99.Thus, the Intervenors argue, the Plan will not correct this imbalance and will force these employees to live outside of the City.This, they allege, means that there will be an increase in sprawl.

City’s Position

The Board holds that up to 2.5-acre lots are urban.However, rather than adopt a maximum urban lot size, the Board instead adopts as a general rule a “bright line” at four net dwelling units per acre.Any residential pattern at that density, or higher, is clearly compact urban development and satisfies the low end of the range required by the Act.Bremerton, at 50 (emphasis in original omitted; Board emphasis added by underlining).

The City further argues that the housing and employment ranges in the Plan are within the ranges of the CPPs and are therefore consistent with the CPPs.Finally, since the CPPs provide the framework for cities planning in the County, as long as the City’s Plan is consistent with the CPPs, the City argues that it is also consistent with other cities that have related regional issues.

Discussion

All jurisdictions shall cooperate in developing comprehensive plans which are consistent with those of adjacent jurisdictions and with the countywide planning policies.

LU-37 simply parallels statutory language, as does FW-28.Turning to the specific arguments raised by the Petitioners and Intervenors under this legal issue, the Board begins with the allegation that the Plan does not encourage efficient development.The Board rejects the Intervenors’ argument that the City’s Plan is inconsistent because it does not encourage efficient development. The requirement that efficient development be encouraged is found in Planning Goal 1 in the GMA.RCW 36.70A.020(1) requires comprehensive plans to “encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner.”

The Board fails to see how the City’s Plan fails to meet this efficiency requirement, nor have the Intervenors met their burden of showing that the Plan directs development into areas where adequate public facilities cannot be provided in an efficient manner.

The Board likewise rejects the Petitioners’ argument that forcing employees to live outside the City necessarily increases sprawl.Despite the potential effects outlined by the Intervenors, the Board holds that the Plan is consistent with the CPPs.The CPPs set a proposed target range for net new employees for Redmond between 29,500 and 34,750. County CPP, Appendix 2.Redmond’s Plan accounts for 29,500 net new employees by 2012 and is within the range set forth in the CPPs.Therefore, the Plan is coordinated with the CPPs within the meaning of the GMA.

Conclusion No. 17

C. PUBLIC PARTICIPATION ISSUES

Legal Issue No. 6

Legal Issue No. 18

Petitioner’s/Intervenors’ Position

The Intervenors assert that the City has violated the GMA’s public participation requirements because the final changes that were made to the draft Plan in July did not allow for continuous participation within the meaning of RCW 36.70A.140.They also agree with Cosmos that the City fails the WSDF I public participation test.The Intervenors argue that the population projection decrease and the density reductions are substantial changes and that the City failed to “show its work,” with the result that there was insufficient analysis in the record to support the changes.

City’s Position

Yet, the City concedes that:

.. at least some of the changes made by the City Council in the Planning Commission’s recommended plan were substantial.City PHB, at 53.

Discussion

If a local legislative body wishes to make changes to the draft of a proposed comprehensive plan that, to that point, has ostensibly satisfied the public participation requirements of RCW 36.70A.020(11) and .140, it has the discretion to do so.However, if the changes which the legislative body wishes to make are substantially different from the recommendations received, its discretion is contingent on two conditions:(1) that there is sufficient information and/or analysis in the record to support the Council's new choice (e.g. SEPA disclosure was given, or the requisite financial analysis was done to meet the Act's concurrency requirements) and (2) that the public has had a reasonable opportunity to review and comment upon the contemplated change.If the first condition does not exist, additional work is first required to support the Council's subsequent exercise of discretion.If the second condition does not exist, effective public notice and reasonable time to review and comment upon the substantial changes must be afforded to the public in order to meet the Act's requirements for "early and continuous" public participation pursuant to RCW 36.70A.140.[21]Emphasis in original.WSDF I, at 76.

Application of the WSDF I Test

The changes at issue in this case are the decreased population projection,the addition of the requirement that density be consistent with neighborhood plans, and the decreased unit/acre ranges, which amounted to a reduction in the combined density of all primary residential Plan designation and zoning districts from seven to six-and-a-half units per acre.

The population projection was changed from 54,600 people to 51,470 people.The population projection of 51,470 is substantially different from the population projection in the draft of 54,600; this is a difference of 3,130 people and amounts to a 6 percent reduction. The change in the population projection is substantially different.

The changes in density that were made by the Council are as follows:

1.The combined density of all primarily residential Plan designations and zoning districts was changed from an average of seven units per gross acre to an average of six-and -a-half.Policy LU-21.

2.The maximum average density on a portion of land North of Bear and Evans Creeks and East of Avondale Road was reduced from 10 units per acre to 6.Policy LU-28

3.For newly developing neighborhoods, the 6 unit per acre designation, to be applied to single-family residential neighborhoods, was reduced to 5 units per acre.Policy LU-31.

4.A reduction from 8 to 6 units per acre was made for areas that meet the Low-Moderate Density Residential designation criteria, that have the land capacity to meet this requirement without significant adverse environmental impacts, and that can be adequately served with public facilities.Policy LU-32.

5.The Moderate Density Residential density category was amended to eliminate R-9 zoning.Policy LU-118.Also, the residential density range for this category was reduced from 9 - 18 units per gross acre to 8 - 18 units per gross acre.Policy LU-124.

6.The Low-Moderate Density Residential base residential densities range was reduced from 4 - 8 units per gross acre to 4 - 6 units per gross acre. Policy LU 123.

The Board holds that these density changes in the Plan, taken as a whole, are substantially different from the recommendations received.Because these changes are substantially different, we move to the next part of the WSDF I public participation test which asks whether there is sufficient information and/or analysis in the record to support the new choices.

The Board can find no information in the record which supports these changes in density or which provides analysis of the consequences of the reductions.In addition, the City has not provided information or noted any analysis in the record that would demonstrate that the new changes were supported by facts and analysis in the record.Under the WSDF I test, the substantial changes made by the City Council must be supported by facts and analysis in the record.Absent such facts and analysis, the Council cannot wield its discretion to depart from the recommendations it received, recommendations that were supported by facts and analysis.

Since the Board concludes that substantial changes were made to the Plan without sufficient supporting analysis, it need not determine whether the public had a reasonable opportunity to review and comment upon the contemplated change.

The Board holds that the Council’s changes in the final Plan lowering residential densities were substantial and were not supported by information and analysis in the record.Therefore, the Board holds that the City did not comply with the requirements of RCW 36.70A.140.

Conclusion No. 18

D. COSMOS PROPERTY ISSUES

Discussion

The Board rejects the Cosmos argument that the City has failed to comply with the requirement for 4 du per acre within the UGA.The Board has not said that anything less than 4 du per acre is not urban –– rather, the Bremerton holding cited by Cosmos simply identifies a “bright line” net density threshold, at or above which, the Board concluded, residential development would clearly constitute urban development.The consequence of a plan including a density designation below 4 du per acre on some portion of a city’s land area is simply increased Board scrutiny to determine if there was adequate justification, such as the presence of environmentally sensitive features.

With regard to the claim that the City impermissibly calculated the urban density for the Cosmos property using the entire property, the Board finds no inconsistency between the City’s action and the meaning of “net density”.As applied to GMA planning exercises, “net” has the same general meaning as “buildable.”Most cities within King County determined what their “net” land supply was for purposes of the County’s UGA allocation exercise.From the record in Vashon-Maury, the Board is aware that various cities in King County deducted, for example, public rights-of-way and environmentally sensitive lands in order to determine the “net supply” of buildable land.Generally speaking, the concept of “net” remains the same when applied to a specific parcel of land — that portion which is encumbered with rights-of-way or certain critical areas would not be available for the placement of housing, for example.

In the present instance, the Cosmos property has been given several different density designations, giving rise to a claim that the City did not achieve a “localized” 4 du/acre density on every portion of the ownership.The Board distinguishes here between the “net density” and “average net density,” the latter of which equals the average density of a property with multiple land use designations.For example, on a 60 acre residential ownership consisting of three 20 acre portions designated for 2 du/acre, 4 du/acre and 6 du/acre, the average density equals 4 du/acre:

In determining whether a given property is designated by the City for an appropriate urban density, it is necessary to look at this “average net density.”Obviously, this is more of an issue with larger sites that are capable of more than one density designation.There is no need to average a 12,500 square foot parcel.

The Board holds that, on parcels large enough to have more than one density designation, the Board will look at the average net density of that entire ownership.If the average net density of a parcel is 4 du/acre or greater, that collective designation is clearly urban, and requires no further Board inquiry.This would permit a city to have clustered heavy density on a large parcel, but still allow for lower densities elsewhere on the property for environmental reasons (e.g., a stream running through it) or for buffering of adjacent less intense land uses.

Having set forth the above holding, the Board now applies it to the Plan’s designations for the Cosmos Property.

Cosmos contends that the average density on the larger 65.4-acre portion of the site is 2.3 du/acre, which falls below the Board’s “bright line” of 4 du/acre or more in urban areas.Cosmos PHB, at 6 and 36.The City counters by pointing out that Cosmos failed to include the 8.65-acre portion of the site, and that Cosmos’ calculation was based on gross rather than net acres.The City contends that the average net density of the parcel is 5.5 du/acre, well within the standard urban densities.

The Board concurs with the City that the acreage of an entire parcel must be calculated.Therefore, Cosmos erred by not including the 8.65-acre portion of the site in its calculations.Thus, the gross acreage at issue here was 74.0 acres and not 65.4 as suggested by Cosmos.

The Board also concurs with the City that acreage that is unbuildable must be deducted in order to obtain the net acreage of a site.The City claims that the site contains 44 net developable acres but does not cite specific provisions in the record for support of this claim.City’s PHB, at 34.

The Board has reviewed the record and found conflicting information.On the one hand, City staff member Tim Trohimovich indicated that “...35 acres is in agriculture and slopes...” when asked how much land is not buildable.Ex. 491, at 4.Assuming that this is correct information, we calculate that:

Of the 39 net acres, 8.65 acres are permitted a maximum density of 12 du/acre (assuming the bonus density applied).

The remaining 30.35 acres (39 acres - 8.65 acres) can have a maximum density of 4 du/acre.

The record further indicates that of the 35 acres of nondevelopable land referenced by Mr. Trohimovich, 20 acres were agricultural and 15 acres were steep slopes.According to Planning Director Lewandowski, this was land “... we do not want them to build on.” See Ex. 491, at 10.

The conflict arises because the record also indicates that low density residential development of 1 du/20 acres was permitted on a portion of the Cosmos site designated agricultural.The Board notes the following exchange between a Council member and a staff member as follows:

Misner:O.K.In the agriculture, do they get any development potential?

Trohimovich:Sure, they get 1 unit per 20 acres.Ex. 491, at 4.See also, City’s PHB, at 34.

Accordingly, the Board assumes that the lower 20 acres of the site was designated agriculture and the residential density permitted was 1 du/20 acres.Therefore, the City cannot deduct 20 acres because development is permitted, albeit at an extremely low density.

As a result, only 15 acres of the site are completely non-developable:

Of the 59 net acres, 8.65 acres have a maximum of 104 dwelling units; 20 acres have a density of 1 du/ 20 acres; and the remaining 30.35 acres (59 - 8.65 acres, - 20 acres) can have a maximum density of 4 du/acre.

Thus, when 35 acres of the entire parcel are not developable, the average net density is 5.7 du/acre.However, when only 15 acres are considered not buildable, the average net density is 3.8 du/acre.This latter density falls below the 4 du or greater/acre “bright line” urban density.Although the Board normally, under the physical circumstances of the Cosmos site, would have concluded that a density just below 4 du/acre was permitted, here the Board cannot reach such a result.It is the City’s designation of twenty acres of agricultural land that reduces the site’s overall net density, assuming as the record indicates, that residential structures are permitted on agricultural lands.As previously held, the City was not authorized to designate any lands within a UGA as agricultural.Therefore, the Board will remand the Cosmos site designation matter.[22]

With regard to other points raised in Cosmos’ arguments, the Board concludes that the Petitioner has not met its burden to show how the City violated the Act.A city has broad discretion in its comprehensive plan to make many specific choices about how growth is to be accommodated.See Aagaard, at 9.

Conclusion

With regard to Legal Issues Nos. 5, 7, 9, 10, 11, 12 and 13,[23] in light of the holding above and Finding of Fact 8, the Petitioner has not met its burden to show how the City failed to comply with the requirements of the Act in its land use designations for the Cosmos property.

E. OTHER ISSUES

Legal Issue No. 15

Discussion

The fact that certain infrastructure may exist near a parcel does not mean that high intensity urban development at the site within the 20-year horizon of the comprehensive plan is a foregone conclusion.Robison, at 19.

Here the City selected an alternative for the Cosmos property which provided for a combination of densities, in recognition of the high intensity uses on one side of the property and the low intensity residential uses on the other side.The Cosmos site designations have been remanded for other reasons. When the City takes further action on the Cosmos property pursuant to the Board’s remand, it retains discretion to locate and configure growth within its urban growth boundaries.The Act does not require the City to designate the Cosmos property for the highest intensity uses simply because infrastructure already may exist that is capable of supporting urban growth.

Conclusion No. 15

Legal Issue No. 19

Legal Issue No. 19 was dismissed with prejudice by the Order on Dispositive Motions and Motion to Intervene entered by the Board on January 9, 1996.

iV. ORDER

1)The Plan’s agricultural land designations are remanded with instructions for the City to re-designate these lands, until and unless the City adopts a program authorizing transfer of purchase of development rights pursuant to RCW 36.70A.060(4).

2)The Plan’s agricultural land designation of the Benaroya property is remanded with instructions for the City to re-designate the property consistent with the Act. 

3)The Plan’s new household allocation and population projections for the year 2012 are remanded with instructions for the City to make them internally consistent and consistent with the King County County-wide Planning Policies.

4)The Plan’s policies at LU-30 through LU-32 are remanded with instructions to bring them into compliance with the Act and the Board’s findings and conclusions as set forth in this Order.

5)The Plan’s designation of the Cosmos property is remanded with instructions for the City to bring the average net density of the property within urban densities.

6)The amendments made to the Plan as listed in the discussion of Legal Issue No. 18 are remanded with instructions to the City to provide additional information and analysis to support the changes and to provide the public with a reasonable opportunity to review and comment upon the changes prior to any subsequent re-adoption.

7)Pursuant to RCW 36.70A.300(1)(b), the City is given until 4:00 p.m. on Monday, September 23, 1996 to bring its comprehensive into compliance with the Board’s Final Decision and Order and the requirements of the Act.

8)The City shall file by 4:00 p.m. on Monday, September 30, 1996 one original and three copies with the Board and serve a copy on each of the other parties of a statement of actions taken to comply with the Final Decision and Order.The Board will then promptly schedule a compliance hearing to determine whether the County has procedurally complied with this Order.If the Plan is amended, substantive compliance will not be determined until and unless new petitions for review are filed within 60 days of publication of notice of adoption of such Plan amendments.

So ordered this 25th day of March, 1996.

CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD

__________________________________________

M. Peter Philley

Board Member

__________________________________________

Joseph W. Tovar, AICP

Board Member

__________________________________________

Chris Smith Towne

Board Member

Note:This Final Decision and Order constitutes a final order as specified by RCW 36.70A.300 unless a party files a Petition for Reconsideration pursuant to WAC 242-02-830.