GROWTH MANAGEMENT
HEARINGS BOARD
FOR EASTERN
WASHINGTON
|
CITY
OF MOSES LAKE,
Petitioner, vs. GRANTCOUNTY, Respondent |
)
) ) ) ) ) ) ) ) ) |
Case
No.99-1-0016
ORDER
ON PETITIONER'S MOTION FOR
RECONSIDERATION |
On
November 30, 1999, the City of Moses Lake, by and through its counsel,
Katherine Kenison, of LeMargie and Whitaker, filed a Petition for Review
of Grant County’s action adopting its Comprehensive Land Use Plan (CP)
(Ordinance 99-158-CC).
A hearing on the merits was held on April 27, 2000.After hearing arguments on the merits from the parties, a Final Decision and Order was entered on the 23rd day of May 2000, finding the County out of compliance.
On June 5, 2000, the Respondent Grant County moved this Board for reconsideration and/or clarification of the Final Decision and Order.This motion has been addressed in a separate order.
On June 7, 2000, the Petitioner City of Moses Lake moved this Board for reconsideration/clarification of Final Decision and Order.
A hearing was held on July 11, 2000 in Ephrata, Washington to hear the arguments of the parties on the motions seeking clarification or reconsideration.
II. Introduction
The
Petitioner has moved the Board to reconsider/clarify certain portions of
the Final Decision and Order issued herein.The
issues the Petitioner is seeking to have clarified or reconsidered will
be reviewed below.
/
A.Does
the Plan’s creation of an Urban Reserve area at densities of one dwelling
unit (du) per five acres adjacent to city UGAs (Urban Growth Areas) prevent
the logical extension of such UGA and development at urban densities?
Petitioner’s
Position:The
Petitioner contends the zoning, which allows 1du/5 acres adjacent to Moses
Lake’s UGA, presents significant growth issues for the future expansion
of UGA boundaries.Experiences in
Oregon and Florida were cited and showed that 1du/5 acres adjacent to UGAs
is the death knell for efficient transition and expansion of UGAs and that
they promote leap-frogging of urban development and inefficient expansion
of public services/utilities.
Respondent’s
Position:The
County points out there is only one area designated as “Urban Reserve”
at 1 unit per 5 acres and it is located immediately east of the Moses Lake
UGA and south of the Wheeler Corridor area. The County believes the one
Urban Reserve Zone will cause no problems and was created with the City’s
active encouragement.The area is
designated as a joint planning area.It
is essentially an island area surrounded on three sides by the Moses Lake
UGA and is bisected by Interstate 90 with interchanges at each end.
The
County also contends the GMA directs the County to have a variety of rural
densities.Without the 5-acre lot,
the County points out there would be a limited variety of densities in
the rural portion of the county.
Discussion:Generally
5-acre lots in rural areas would be more difficult to justify, especially
if large number of such lots exist.Where
the lot size is less than 10 acres in rural areas of a county, the Board
must more carefully examine the number, location and configuration of those
lots.It must determine whether such
lots constitute urban growth; presents an undue threat to large-scale natural
resource lands; thwarts the long-term flexibility to expand the UGA; or,
will otherwise be inconsistent with the goals and requirements of the Act.
The
Plan has only one area where this lot size would exist.This
area is bordered on three sides by the UGA for Moses Lake and bisected
by Interstate 90.While this size
lot does not facilitate an easy expansion of the UGA, the area is limited
and is a joint planning area.It
is expected this area will have a different land-use designation after
the joint planning takes place.This
designation is also not threatening resource lands due to its location.
The
City has not shown the County’s actions are clearly erroneous.By
working together with the County, many of the feared consequences could
be avoided.
Conclusion:The
Board finds the City has not carried its burden and the establishment of
an Urban Reserve Zone with 5-acre lots is not clearly erroneous in this
case.
B.The
City has cited a number of internal inconsistencies.Some
of these will be addressed below.
1.The
County failed to encourage and direct growth into urban areas.
Petitioner’s
Position:The
City contends that the actions and inactions of the County do not encourage
or direct population growth into urban areas.The
size of the UGA itself is not enough if the other policies adopted by the
County make it easier to locate in the rural areas.
Respondent’s
Position:The
County points out that the UGAs were, with the concurrence of the affected
cities, sized to encourage significant new growth therein.Specifically,
the UGAs are of such a size that the economics have been shifted to favor
the cities, in terms of the cost of vacant land.Having
received the large UGA it desired, the County believes the City is now
silent as to the Comprehensive Plan strategy on this point.
Discussion:The
County’s choices regarding the manner in which they have designed the Comprehensive
Plan (CP) is presumed to be correct, even if someone else believes it would
have an effect different than stated.The
City has not convinced the Board that the County was clearly erroneous
in their actions.They have not carried
their burden.
Conclusion:The
County is in compliance on this issue.
2.The
City contends there is 296,135 acres of “unclassified” land for which no
land-uses were identified.
Petitioner’s
Position:The
City contends there is 296,135 acres of “unclassified land” which have
no land-use designation.
Respondent’s
Position:The
County denies this allegation and states that all lands have been classified.The
County points out that the Future Land Use Map depicts all future land
use designations. Gross areas for future land-use designations are tabulated
in Table 5-4, CP Page 5-5.The designations
are accurately drawn and areas calculated and totaled accurately.
The
existing land use inventory is said to have been taken from the Grant County
Assessor’s parcel database.Data
regarding land-use is not recorded for every parcel of land in that database,
such that not all parcels were categorized in the seven classifications
listed in the table.The County
is moving forward in implementing their GIS program and will integrate
this data into future updates of the CP.
Discussion:The
County contends the land-use for these acres is essentially reflected on
both the present land use map and the future land use maps.This
has not been refuted.The uses have
been identified, as best they can, with the understanding that it will
be shortly improved.The present
level of identification is adequate.
Conclusion:The
Petitioner has not carried their burden of proof and the County is not
out of compliance on this issue.
3.The
County has failed to provide for any parks and recreation facilities.
Petitioner’s
Position:The
City contends the County is out of compliance with the GMA because it has
not established a single park or recreational area within the county.Because
many more people are expected to be settling in the rural area, the City
believes it is important to establish parks and recreational lands.
Respondent’s
Position:The
County contends they are not required to provide parks and recreational
facilities.Grant County is rich
in recreational amenities and parks.Grant
County owns no parks, yet has vast areas of open space and an abundance
of natural outdoors recreation opportunities.There
are numerous state parks in the County and privately owned resorts and
recreational destinations associated with the water bodies and other outdoor
opportunities in the County.
Discussion:RCW
36.70A.070(1) requires each county to “designate the general distribution
and general location and extent of the uses of land, where appropriate,
for…recreation…” The County is not required to develop parks and recreational
areas where not necessary.Here
the County believes there are sufficient recreation resources available.The
Petitioner believes there will be many more people in the rural areas than
planned for and they will require more recreational opportunities.This
speculation does not prove the County is clearly erroneous.
Conclusion:The
Petitioner has not carried their burden of proof and the County is not
found to be out of compliance in this matter.
4.The
County’s designation of a 1du/40acre lot size for dry land farms when the
CP states that the average size of dry land farms is 640 acres is inconsistent.
Petitioner’s
Position:The
City contends that it is a conflict or inconsistency in the Plan where
dry land farms are declared to be an average size of 640 acres and the
County still allows a 40-acre minimum lot size for these agriculture resource
lands.
Respondent’s
Position:The
County points out that the City cites no authority for such a requirement
and that a minimum lot size of 640 would be unreasonable and unprecedented.
Discussion:There
is no requirement that the minimum lot size in agriculture resource lands
be the average size of farms existing there.The
establishing of a 40-acre lot size minimum is not unreasonable and is an
appropriate lot size in the County’s effort to protect the farmland from
loss or damage.
Conclusion:The
minimum 40-acre lot size in agriculture resource lands is not contrary
to the GMA and the County is not out of compliance on this issue.
C.Did
the County violate the GMA by their failure to provide specific policies
to guide the development of master planned resorts as is required by statute?
Petitioner’s
position:The
City contends the County failed to comply with RCW 36.70A.360, which permits
counties to designate master planned resorts “only if the CP specifically
identifies policies to guide the development of master planned resorts.”The
City also points out that RCW 36.70A.362 requires a restriction “ that
preclude new urban or suburban land uses” and to find consistency with
the Critical Area Ordinance and environmental review.
Respondent’s
Position:The
County contends the Comprehensive Plan specifies a process for review and
approval of master planned resorts, contrary to the allegations of the
City.5RU-20 through 5RU-22 specifies
a process for review and approval of Master Planned Resorts (Master Planned
Resorts).Draft development regulations
prepared by the County to implement the goals and policies of the CP include
additional specificity regarding designation of MPRs through future CP
amendments.
Discussion:The
Comprehensive Plan does have approval Criteria to guide the development
of MPRs.While these are not in great
detail, they do cover the required areas touched on by the Petitioner.Regulations
are being developed for more detail.It
must be recognized that the GMA is the controlling law.Upon
the application for the development of a MPR, each of the limitations found
in the law will need to be complied with.
Conclusion:The
County is not out of compliance with the GMA with their Master Planned
Resorts provision.
D.Is
the Capital Facilities element out of compliance due to a number of
deficiencies
listed below?
Petitioner’s
Position:The
Petitioner challenged the CP’s Capital facilities element (CFP) on several
grounds.First, the Comprehensive
Plan acknowledged an existing deficiency in parks and law enforcement but
made no attempt to correct such deficiencies.Second,
the CP identified ground/surface water pollutant problems and failing septic
tanks, but failed to identify or adopt any Level of Services (LOSs) or
conduct adequate environmental review. Third, the CFP element failed to
address capital facilities issues on a 20-year cycle and instead used a
6-year cycle.
Respondent’s
Position:
The County contends that the GMA does not require the county to provide
parks and recreational facilities. (See B (3) above).
The
County points out that they operate no utilities, except for the interim
operation of the Marine View Heights water system.Therefore,
they established no level-of-service standards for utilities except for
the solid waste management system.Also
local and state rules regarding on-site individual wastewater treatment
and groundwater withdrawal are expected to mitigate the impacts of rural
residential development at the densities provided in the plan. (FEIS, Page
156).
The
County also contends that the Capital Facilities Plan was not appealed
and therefore the issue is not before the Board.However,
Grant County points out that RCW 36.70A.070(3) requires comprehensive plans
to contain a “capital facilities element” that includes a six-year plan
for financing those capital facilities.Grant
County’s Plan is claimed to satisfy these requirements.
The
County believes that concurrency requires steps to ensure that the capital
facilities and services it has identified as being necessary to support
development are adequate and available to serve development.They
believe that those steps, other than for transportation facilities, need
not be in the form of a specific concurrency ordinance that prohibits development
approval if the development causes LOSs to decline.They
also believe that what is required to satisfy the concurrency requirement
is a locally devised methodology to ensure adequate public facilities.No
“specific ordinance” need be adopted.
Discussion:RCW
36.70A.070(3) requires a capital facilities plan element consisting of:
a)An
inventory of existing capital facilities owned by public entities, showing
the locations and capacities of the capital facilities;
b)A
forecast of the future needs for such capital facilities;
c)The
proposed location and capacities of expanded or new capital facilities;
d)At
least a six-year plan that will finance such capital facilities within
projected funding capacities an clearly identifies sources of public money
for such purposes; and
e)A
requirement to reassess the land use element if probable funding falls
short of meeting existing needs and to ensure that the land use element,
capital facilities plan element, and financing plan within the capital
facilities plan element are coordinated and consistent.
For
purposes of conducting the inventory required by RCW 36.70A.070(3)(a),
“public facilities” as defined at RCW 36.70A.030(12) are synonymous with
“capital facilities owned by public entities.” See West
Seattle Defense Fund v. City of Seattle,
CPSGMHB Case No. 94-3-0016, Final Decision and Order (April 4, 1995), at
43.
RCW
36.70A.030(12) defines public facilities as "streets, roads, highways,
sidewalks, street and road lighting systems, traffic signals, domestic
water supply systems, storm and sanitary sewer systems, parks and recreation
facilities and schools."
Regarding
RCW 36.70A.070(3)(a) and (b), the GMA requires counties and cities to include
an inventory and needs analysis of existing publicly-owned capital facilities,
regardless of ownership, in their Capital Facilities Elements.
Regarding
RCW 36.70A.070(3)(c) and (d), it is recognized that if a county does not
own or operate a facility, it should not be required to include the location
or financing information in its Capital Facilities Element, since these
decisions are beyond its authority.
However,
when the jurisdiction that owns and/or operates a specified capital facility
cooperates with the county and discloses information pertaining to location
and financing, the county should include such information in its Capital
Facilities Element (per RCW 36.70A.070(3)(c) and (d)). Indeed, aside from
being sound growth management and public policy, it may be a necessary
prerequisite to access a new funding source - e.g., impact fees.
RCW
36.70A.070(3)(e) requires the planning entity’s commitment to reassess
the Land Use Element in certain situations and bolsters the internal consistency
requirements.
It
is within this context that we review Grant County’s Comprehensive Plan
– Chapter 9: Capital Facilities Element (CFE) and Chapter 10: Utilities
Element.
The
Capital Facilities Plan addresses the following categories of public facilities:
County-owned capital facilities at 9-10; Administrative Offices at 9-10;
Law Enforcement (sheriff’s Department) at 9-15; Corrections Facilities
at 9-16; Juvenile Detention Facility at 9-18; County Parks at 9-19; and
Storm water Management at 9-20. Other Regional Capital Facilities at 9-20;
Schools at 9-20; Vocational Training Facilities/Higher Learning at 9-22;
Library System at 9-23; Fire protection at 9-23 and Hospital System at
9-24.
The
Utilities Element addresses Public Utilities at 10-5, which include Electricity
at 10-5; Water Supply Systems at 10-8; and Sewer Systems at 10-10.Private
Utilities at 10-12 which includes Natural Gas at 10-12; Telecommunications
at 10-13; Telephone at 1013; Cellular Telephone at 10-13 and Cable Television
at 10-14.Special Districts at 10-14
including Port Districts at 10-14 and Columbia Basin Project and irrigation
Districts at 10-15.
Upon
review of these portions of the CFE and Utilities Element, the Board finds
the requisite inventories and needs assessments for existing publicly owned
capital facilities are included as is required by RCW 36. 70A.070(3)(a)
and (b) and includes the required categories of public facilities defined
by RCW 36.70A.030(12).
The
Board’s review of the CFE in light of the requirements of RCW 36.70A.070(3)(c)
and (d) indicated that generally, the County has noted the location of,
the needed new or expanded facilities and included a six-year financing
plan for County-owned or operated facilities. Thus, the County has included,
for facilities owned and operated by the County, the necessary location
and financing information.
The
County has admitted it has no parks or recreational facilities.However
they contend there are adequate facilities already provided by the State
Government, Federal Government and private parties.Planning
for more is unnecessary if there are already adequate facilities.
The
County has also performed environmental reviews and found it unnecessary
to develop Levels of Service due to the fact they did not operate utilities
and were developing alternative non capital programs.
Although
OFM’s population projections and those used in countywide planning policies
have a 20-year time frame, the Act at a minimum requires only a six-year
capital facilities plan.The County
provides for this.
Conclusion:The
City has not shown that the actions of the County were clearly erroneous
and thus has failed in its burden of proof on this issue.
D.The
County failed to include a shoreline master program as required by the
statute.
Petitioner’s
position:The
City asserts that the County contains no Shoreline Master Program.This
failure is noncompliant with the GMA requirement relating to shoreline
master programs and is insufficient to carry out the CP’s goals of protecting
the County’s shorelines.
Respondent’s
position:The
County recognizes that the GMA requires counties with a shoreline master
program to include the goals and policies of such program in the county’s
comprehensive plan.The Grant County
Shoreline Master Program was adopted in 1975 and needs revision.The
County intends to update the Shoreline Master Program following the adoption
of unified development regulations and resolution of the various appeals
to the CP.Therefore rather than
include the goals and policies of the 1975 SMP in the CP, the County adopted
the goals and policies in the Natural Setting Element of the CP to guide
the Update of the SMP.
Discussion:RCW
36.70A.480(1) provides as follows:
(1)For
shorelines of the state, the goals and policies of the shoreline management
act as set forth in RCW 90.58.020 are added as one of the goals of this
chapter as set forth in RCW 36.70A.020.The
goals and policies of a shoreline master program for a county or city approved
under chapter 90.58 RCW shall be considered an element of the county or
city’s comprehensive plan.All other
portions of the shoreline master program for a county or city adopted under
chapter 90.58 RCW, including use regulations, shall be considered a part
of the county or city’s development regulations.
This
inclusion is automatic.The goals
and policies and regulations “shall be considered a part of the county
or city’s development regulations.” (Supra).The
same statute provides that the shoreline master program shall be adopted
pursuant to the procedures of chapter 90.58 RCW, rather than the procedures
set forth in the GMA.The County’s
Shoreline Master Program is already an element of the CP as provided by
law.Its amendment will be pursuant
to 90.58 RCW.
Conclusion:The
County is not out of compliance on this issue.
/
/
E. Is
the County in violation of the GMA for its failure to map the critical
aquifer recharge areas?
Petitioner’s
Position:The
City points out that page 13-14 of the CP acknowledges that although potable
water is an “essential life-sustaining element” and most of it comes from
“groundwater and surface water supplies,” and aquifer recharge areas are
“highly vulnerable to ground water contamination” and “groundwater is the
primary source of drinking water” for Grant County residents, “mapping
of critical aquifer recharge areas has not been completed by the County.”The
goals and policies to protect this crucial supply of drinking water cannot
be effectuated when these critical areas have not even been identified
or located.
Respondent’s
Position:The
County responds by pointing out that the County’s Critical Areas Ordinance
(CAO) identifies aquifer recharge areas and provides protection standards
for them.Provisions are included
in the CAO to review development applications for the presence of critical
aquifers.Grant County acknowledges
that such aquifers are not mapped (see Goal NS-3.1 which states that they
should be identified).Developers
are required to prove that their proposal will not adversely affect such
aquifers; development that could substantially and negatively impact them
shall not be allowed (NS-3.5 and NS-3.6, Page 13-23.
Discussion:RCW
36.70A.170(1)(d) requires, “where appropriate” to designate critical areas.Critical
areas include “areas with a critical recharging effect on aquifers used
for potable water.” RCW 36.70A.030(5).The
County must designate these critical areas and protect them from degradation.The
County contends they have identified these areas in their CAO.They
also state they have established a system of identifying other such areas
unknown at this time by using the development process for reviewing each
area sought to be developed.If an
aquifer recharge area exists where the development is to occur, the developer
is required to prove that their proposal will not adversely affect the
aquifer; development that could substantially or negatively impact them
will not be allowed.
Conclusion:The
County has identified aquifer recharge areas and provided a system to identify
other unknown recharge areas.The
County is not found to be out of compliance on this issue.
F.Has
the County failed to use the best available science in the designation
and protection of Critical Areas?
Petitioner’s
Position:The
Petitioner asks that the Board reconsider its findings regarding the claimed
failure of the County to user best available science.
Respondent’s
Position:The
County indicates that it is not aware that this allegation was specifically
briefed or argued. Therefore they believe the Board should ignore this
allegation.However, the County contends
there are a number of instances, which address the “best available science.”There
is no showing by the City that Grant County has failed to comply with the
procedural requirements of the GMA as to the BAS standard.
Discussion:The
Petitioner, with only the citation of the statute, RCW 36.70A.170, raised
the issue of Best Available Science.There
was little or no argument on this issue by either party.The
Petitioner has not provided sufficient argument or evidence to carry their
burden of proof as required by the GMA.Clearly
there was little if any information on this subject before the Board.
Conclusion:The
Petitioner has not shown the County’s action was clearly erroneous.The
County is not found out of compliance on this issue.
G.Does
the plan fail to adequately perform an environment review and review of
drainage, flooding and storm water run-off and provide guidance for corrective
actions to mitigate or cleanse those discharges that pollute waters of
the State as required by RCW 36.70A.070(1) and SEPA?
Petitioner’s
Position:The
City contends the CP policies to protect the environment, protect and conserve
ground water and aquifers, and coordinate growth with appropriate levels
of service for public services is inconsistent and lacking.They
further contend there was no adequate review of drainage, flood and storm
water run-off with guidance for corrective action to mitigate or cleanse
those discharges that pollute the waters of the state.They
also contend the plan fails to comply with SEPA review in that it fails
to provide environmental review in sufficient detail and rigor to resolve
potential impacts upon the plan’s adoption, and that it acknowledges insufficient
environmental review has been conducted because of lack of public funding
for such review.
The
City also contends the plan failed to comply with the GMA and SEPA review
in that it admittedly fails to analyze or review any cumulative impacts
of the development permitted under the plan, including any analysis of
the cumulative impact of private wells and septic systems or adoption of
any levels of service standards for individual septic systems, private
wells or storm water control.
Respondent’s
Position:The
County contends an environmental review was conducted in accordance with
SEPA rules and presented in the DEIS.Also,
the county contends that no appeal to the County’s SEPA Notice of Action
was made by Petitioner.Adequate
non-project programmatic environmental review was incorporated into the
Draft CP/DEIS.Three alternatives
were prepared and evaluated, significant environmental impacts addressed,
and measures were presented to mitigate unavoidable adverse impacts of
the land use alternatives. (CP Chapter 14).
The
County believes the RAIDs established in the CP will increase the opportunities
for community sewer systems, and thereby minimize potential groundwater
contamination.Low rural density
will minimize impacts in rural lands.
Water
quality issues related to rural residential development for each of three
alternatives have been evaluated in the EIS.Local
and state rules regarding on-site individual wastewater treatment and groundwater
withdrawal are expected to mitigate the impacts of rural residential development
at the densities provided in the Plan.
Discussion:The
County has complied with the SEPA requirements hereunder and has at least
minimally addressed the concerns raised by the City.
Conclusion:The
City has failed to show that the actions of the County were clearly erroneous.
H.The
County is out of compliance with the GMA in its failure to include any
information on small existing lots in the agriculture zones, (e.g. spin
offs, segregations, and variances).
Petitioner’s
Position:The
City believes the County’s failure to list or include information on small
existing lots in the agriculture resource zone is a violation of the GMA
and an inconsistency.
Respondent’s
Position:The
County denies there is no information as to the existing lots.Grant
County asserts it had information of existing lots when it adopted its
Comprehensive Plan. (Appendix C, Board of County Commissioners Findings
of Fact No. 4.2.)The County has
already limited development of historic lots, requiring that these nonconforming
lots meet current densities specified in the Plan.No
variances are allowed for lot densities or uses.
Discussion:The
County has limited development of historic plats. The County’s interim
zoning applies the new CP densities.Any
new building permit or plat requests will be under the requirements of
the CP.The vested permits or plats
hopefully are small in number, as contended by the County. All other non-conforming
lots must meet current zoning.
Conclusion:The
City has not carried its burden of proof and the Board does not find the
county’s actions on this issue are clearly erroneous.The
City is not out of compliance on this issue.
Now,
therefore, the Board hereby enters the following
ORDER
Issue
A:The
Board finds the City has not carried its burden and the establishment of
an Urban Reserve Zone with 5-acre lots is not clearly erroneous in this case.
Issue
B-1.The County is in compliance on
this issue.
Issue
B-2.The Petitioner has not carried
their burden of proof and the County is not out
of compliance on this issue.
Issue
B-3.The Petitioner has not carried
their burden of proof and the County is not found
to be out of compliance in this matter.
Issue
B-4.The minimum 40-acre lot size
in agriculture resource lands is not contrary to
the GMA and the County is not out of compliance on this issue
Issue
C.The County is not out of compliance
with the GMA at this time with their Master
Planned Resorts provision.
Issue
D.The
City has not shown that the actions of the County were clearly erroneous
and thus has failed in its burden
of proof on this issue.
Issue
E.The County is not out of compliance
on this issue.
Issue
F.The
County has identified aquifer recharge areas and provided a system to identify
other unknown recharge areas.The
County is not found to be out of
compliance on this issue.
Issue
G.The
Petitioner has not shown the County’s action was clearly erroneous.The
County is not found out of compliance on this issue.
IssueH.The
City has failed to show that the actions of the County were clearly erroneous.
Issue
I.The
City has not carried its burden of proof and the Board does not find the
County’s actions on this issue are clearly erroneous.The
City is not out
of compliance on this issue.
Pursuant
to WAC 242-02-832(4),this is a final
order for purposes of judicial review.
SO
ORDERED this
16th of August, 2000.
EASTERN WASHINGTON
GROWTH MANAGEMENT HEARINGS
BOARD
Dennis A. Dellwo, Board
Member
Judy Wall, Board Member,
Board Member
D. E. “Skip” Chilberg,
Board Member