By Duncan Greene
The role of Washington's three regional Growth Management Hearings Boards (Boards) is inherently conflicted. The Boards are torn between their duty to interpret the Growth Management Act (GMA) with some degree of consistency and the GMA mandate for deference to local planning actions. The statute itself, due to its scope and complexity, is filled with gaps (some likely intentional) and apparently contradictory mandates.
In the nearly twenty years since the adoption of the GMA, the Boards have articulated a number of "bright line" rules in an effort to fill perceived gaps in the statute and provide guidance to local governments striving to comply with the Act. The most controversial of these rules have attempted to define the terms "urban densities" and "rural densities," which are used in the GMA to prevent sprawl by concentrating residential growth in urban areas. Bright line rules for residential densities (expressed in terms of dwelling units per acre, or "du/acre") have become the subject of an ongoing debate over the proper level of deference to local government. This debate has been played out in Board proceedings, in appeals of Board decisions to court under the Administrative Procedure Act (APA), and in the Legislature.
This article will discuss the Boards' articulation of bright line rules for urban and rural densities and the Washington Supreme Courts discussion of those rules in Viking Properties v. Holm, 155 Wn.2d 112, 118 P.3d 322 (2005), where the Court called into question the Boards authority to impose bright line rules. The following sections present a chronology of the debate over bright line rules for residential densities, beginning with an overview of the original GMA framework (Section II) and several early Board decisions (Section III). Section IV describes 1997 amendments to the GMA that strengthened the deference given to local decisions, and Section V reviews Board decisions following the 1997 amendments. Section VI discusses several Washington court decisions leading up to Viking Properties, and Section VII reviews Board and court decisions that followed Viking Properties.
This article originally appeared in the April 2008 edition of the newsletter of the Environmental & Land Use Law section of the Washington State Bar Association. View the full article here.