Oregon and Washington: A Comparison of State Mandated Land Use Planning Programs

1. Oregon and Washington:A Comparison of State Mandated Land Use Planning Programs Richard H. Carson, director Clark County Department of Community Development Vancouver, Washington Presented by:

2. In the beginning: Oregon adopted “Statewide Planning Goals” in 1973 (SB 100) - required of all 36 Oregon counties and 212 cities. Washington adopted the “Growth Management Act” (GMA) in 1990 - mandated for only 29 “growth” counties of 39 and the cities within the growth counties. Other counties may voluntarily participate.

3. Washington has 13 state planning goals 8. Natural resource industries 9. Open space & recreation 10. Environment 11. Citizen participation 12. Public facilities 13. Historic preservation - RCW 36.70A.020 1. Urban growth 2. Reduce sprawl 3. Transportation 4. Housing 5. Economic development 6. Property rights 7. Permits

4. Oregon has 19 state planning goals 1. Citizen involvement 2. Land use planning 3. Agricultural lands 4. Forest lands 5. Open spaces, historic areas, natural resources 6. Air, water & land quality 7. Natural hazards 8. Recreational needs 9. Economic development 10. Housing 11. Public facilities 12. Transportation 13. Energy 14. Urbanization 15. Willamette Greenway 16-19. Coastal goals - OAR 660-015-0010-4

5. Goals are not created equal... Washington’s planning goals are not all required in the section that lists the elements of a comprehensive plan.* - RCW 36.70A.070 Oregon’s goals are all required to be addressed in a comprehensive plan, but some have specific requirements and others don’t. (*Example: Property rights is not a requirement)

6. Planning similarities • 20-year comprehensive plans and zoning that need to be updated periodically. • 20-year capital facility plans and 6-year capital improvement plans. • Urban growth areas inside urban growth boundaries (UGBs) must accommodate a 20-year population projection. • Growth should pay for itself.

7. More planning similarities . . . • Cities/counties adopt comprehensive plans. • Compact urban growth form that optimizes the provision and cost of infrastructure. • Plan monitoring and documenting performance before expanding UGBs. • Permits are to be processed in 120 days. • Up-zone urban areas. Down-zone rural areas with 5, 10, 20, 40, 80 acre minimum lot size. (Washington does not mandate minimum lot sizes)

8. State oversight authority Washington: State legislature retains all policy-making authority which is balanced by the Governor’s veto. Oregon: Land Conservation and Develop- ment Commission is appointed by Governor and has strong administrative rule making authority delegated by state legislature.

9. State oversight agency Washington: Office of Community Development is a weak encouragement agency with no ability to sanction. State does not approve/deny final adopted plans. Oregon: Department of Land Conservation and Development is a strong enforcement agency with fiscal and legal sanctions. State approves/denies final adopted plans

10. Enforcement powers Washington: Individuals or government agencies can take a local jurisdiction to court to force compliance with state land use laws. Governor can withhold state funds. Oregon: Same as Washington, but LCDC can also use their “Enforcement Order” process in lieu of an appeal or withhold state funds.

11. Who can appeal a decision? Washington and Oregon: Individuals, organizations or government agencies can take a local jurisdiction to a specialized hearing board to force compliance with state land use laws. Both states have a 1,000 Friends organization. Appellants must have “standing” and had participated in the public hearing.

12. Who hears the appeal? Washington: Comprehensive plan appeals go to one of the 3 regional Hearings Boards who are appointed by the Governor. Results in more inconsistent, but tailored local decisions. Development approvals go to Superior Court following the LUPA process (Land Use Petition Act). Final appeal to Court of Appeals with discretionary review by state Supreme Court and the U.S. Supreme Court.

13. Who hears the appeal? Oregon: All appeals go to one state Land Use Board of Appeals (LUBA) with referees who are appointed by the Governor. Results in more consistent decisions, but they are “one-size-fits-all” decisions. Final appeal: both go to Court of Appeals with discretionary review by state Supreme Court and the U.S. Supreme Court.

14. Environmental protection -Washington Washington has: • GMA “critical area” requirements. • Shoreline Management Act. • State Environmental Protection Act (SEPA). SEPA is unpredictable and occurs after the development application is made. Local government could require an expensive and time consuming environmental impact statement. Oregon deliberately rejected the SEPA process.

15. Environmental protection -Oregon Oregon has: • Goal 5 - Open Spaces and Natural Areas • Goal 6 - Air, Water & Land Resources Quality • Goal 7 - Natural Disasters and Hazards • Goal 15- Willamette Greenway Goal • Goals 16-19 Coastal Goals Goals result in a more predictable planning requirement that are built into the front end of development project applications.

16. Annexation policies Washington: Annexation of land within a UGB not required in order to get urban services and develop. Recent court decisions have made election annexations highly unlikely. Oregon: Annexation of land within a UGB is encouraged in order to get urban services and before development is allowed (unless a city cannot deliver such services).

17. Voter annexation Voter annexation is a legal requirement that land can only be annexed to a city with the approval of the majority of the voters in the city. Oregon: Allows local voters to enact voter annexation laws for cities by initiative. Washington: Only charter counties can have a local initiative process, but state does not have (or allow?) voter-annexation .

18. Property compensation Washington: property compensation requires a higher burden of proof (basically a government decision would have to render the property valueless). Oregon: Measure 7 would have lowered the burden of proof and most government devaluations would have been compensated. Measure overturned, Oregon now the same.

19. Paying the cost of growth Washington: Four (4) “impact fees” allowed to be collected only for roads, park and schools. Fire impact fees are allowed in cities, but not outside in fire districts. Oregon: Five (5) “system development charges” (SDC) allowed to be collected only for roads, parks, water, sewer and stormwater.

20. Concurrency (Washington) • Results in a land use denial if level-of-service is not deemed “adequate.” • Possible development moratoriums. • Reduction in the level-of-service standard for the public facility is the only legal relief. • Transportation facilities must be reasonably funded within 6 years of impact fee charged.

21. Concurrency? (Oregon) • There is no “concurrency” requirement in Oregon. • Possible development moratoriums only if there is no service is available. • Results in a denial of application only if level-of-service is deemed in “failure.” (as in no water available, no sewer capacity or traffic safety is compromised).

22. Transportation Concurrency Washington has “transportation concurrency” which is quantitative, but unpredictable (I.e., determined after application and developer investment). Oregon has “transportation planning rule” with is more qualitative (design driven) and more predictable.

23. Development moratorium Washington: Concurrency means a development moratorium may be triggered by an inadequate level-of-service. Oregon: development moratorium is triggered by a failure in level-of-service (as in no water available or no sewer capacity).

24. Vesting rights Washington: Land use applications are vested under the existing regulations at the time the application is deemed “complete.” But impact fees are not vested. Oregon: Land use applications are not vested unless land lawfully approved and physically committed to land use and being developed.

25. Summary Washington has a more decentralized planning system that allows for more local control. It also has less uniform local government and court decisions statewide. Oregon has a centralized, “one-size-fits-all” planning system, with less local control. It also creates more uniform local government and court decisions statewide.