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Home / Washington Business - November/December 2007 / Legal Matters: Fairness, common sense needed to balance transportation and growth management |
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Legal Matters: Fairness, common sense needed to balance transportation and growth management |
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Written On: November/December 2007 |
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Written By: by Chris McCabe, AWB Governmental Affairs Director |
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As a child, do you remember using the "that's-not-fair" argument with your parents? How did that work for you? When I tried it, my mother would counter that if I wanted fair, I should do the Puyallup.
Fairness—equity and balance—are the core concepts underlying our entire system of law and justice. But fairness often ends up being subjective depending on whose lens it is viewed through. Like beauty, it's in the eye of the beholder.
Perhaps the best example of this is Washington's Growth Management Act, enacted in 1990. It provides the state's framework for land use and growth planning. In no particular order of priority, the GMA outlines 13 wide-ranging goals. Among these are concentrating growth in urban areas, reducing sprawl, encouraging multi-use transportation, protecting private property, and protecting natural resources and the environment.
At its inception, the GMA promised to balance sometimes conflicting goals—weighing property rights against restraints on sprawl, for example. That balance has largely disappeared over the past 17 years. Instead, the scales have tilted heavily in favor of environmental protection. From regulatory property takings to an outright moratorium on development, property owners, developers and business owners have seen the GMA used as a tool to prevent growth, not manage it.
Consider what's happened to the GMA requirement that transportation infrastructure and land development take place concurrently. This law states that local governments must adopt and enforce laws that prohibit development approval if the development causes traffic levels of service to fall below locally adopted standards. But over the past 10 years, many local governments—often at the urging of special interest groups—have set levels of service so high that any new development would violate the standards.
As a result, development is being driven outward to where levels of service are lower. This leapfrogging pushes development to the outer limits of the Urban Growth Area, the region where urban development is allowed to occur. In some instances, developers are being pushed to the other side of the growth line. This is in direct conflict with at least six of the 13 GMA goals, including: Encouraging development in urban areas, reducing sprawl, encouraging the development of affordable of housing, encouraging economic development, protecting private property rights, and affecting the timely and fair processing of permits.
The unintended consequence of overly restrictive local concurrency ordinances is the proliferation of patchwork development in areas the GMA sought to protect. It pushes up the cost of doing business and frustrates efforts at public-private collaboration, abandoning any pretense of balance or equity.
Here's a true story: A family in Issaquah owned a piece of commercially-zoned land for 45 years. The land included existing structures in dire need of renovation, and could also accommodate additional structures. For 20 years, the owners paid their fair share of two major local improvement district projects. Then, they wanted to build a small building to house an ATM machine and applied to the city for a concurrency certificate. The city said it would issue the certificate as long as no more than 4.5 vehicles use the machine during peak traffic periods—otherwise, existing levels of service would be disrupted. If the owners couldn't meet this standard, they would have to fund the entire construction of two new left-turn lanes on based on concurrency law. Guess what? After a three-year moratorium and an appeal to the hearings examiner, no improvements have been made and no new structures have been built.
As recently as 2002, the courts have upheld the ability of local governments to deny development based on GMA concurrency law. The Washington State Court of Appeals has said that transportation concurrency is "action forcing" and "its purpose is to assure that development permits are denied unless there is concurrent provision for transportation impact."
Somebody recognized this problem as early as 1992 when a new concurrency rule was adopted acknowledging that "Setting levels of service too high could, under some regulatory strategies, result in no growth. As a deliberate policy, this would be contrary to the act."
Seems like common sense. Unfortunately, the concurrency law trumps this administrative rule.
Of course, one could counter that it's only fair that property owners pay for development that causes transportation levels to be affected. Problem is, developers are already tagged with impact fees for infrastructure items like streets and roads. And unlike impact fees, concurrency is often an all-or-nothing approach where individual developers are stuck with a bill that is in no way proportional to the size of the development.
Here's a reality check: In the next 10 years, census reports project that 1 million people will move into the Puget Sound region. We cannot keep saying no to development within urban centers. That's where growth belongs under the GMA. We must restore some common sense and balance to the GMA so that it can be used as a tool to manage growth, not prevent it.
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