New Legislation Aids Environmental Planning/Development

May 10, 2013

The Washington State legislature recently passed a bill that incentivizes upfront environmental planning by local governments and increases SEPA predictability for developers.  This legislation will help ensure infrastructure is installed in a timely manner, consistent with adopted standards, and will add clarity for both the developer and the city on the limits and requirements of recovering costs through latecomer agreements.

The two elements of this bill are important because they improve the development process by first   increasing predictability of SEPA review for certain development types and second, it provides new rules for who builds and who pays for required water and sewer infrastructure. 

The first aspect expands the ability of local governments to recover costs associated with preparing environmental impact statements (EISs).  RCW 43.21C.420 currently authorizes a city to ask a developer to pay a share of the cost of a nonproject EISs for certain types of planning in mixed-use or urban centers.  ESHB 1717 will expand this concept so it applies to planned action EISs (RCW 43.21C.440), as well as nonproject EISs for categorically exempt infill development (RCW 43.21C.229). 

Under the Washington State Growth Management Act a planned action is a specific development or redevelopment described by a comprehensive plan, subarea plan, or master planned resort plan for which environmental review is conducted early in the planning stages, instead of at the time of permitting.  The planned action is adopted by the local government and when development or redevelopment is proposed consistent with the planned action, no new environmental review is necessary.  A nonproject EIS is prepared for a governmental action involving decisions on policies, plans, and programs.  Completion of a nonproject EIS helps the local government see the “big picture” and can expedite decisions later on. The GMA allows local governments to set a policy where certain kinds of infill development are exempt from SEPA review; however this policy decision can only be made after completion of a nonproject EIS.

The steep cost of preparing an EIS often prevents local governments from undertaking planned action and nonproject EISs.  However, investing in this type of early planning can improve the quality of community development and increase predictability for project developers.  By allowing local governments to assess fees to developers benefitting from the EISs –similar to the concept of a “latecomer agreement”—the local government can recoup its investment and the project developer is able to save time during the permitting process. 

The second aspect of the bill revises the state law covering latecomer agreements (RCW 35.91.020).  Upon the developer’s request, the local government must enter into a contract to construct water and sewer facilities required for the development by local ordinance.  The developer agrees to pay the local government for the cost of construction, and is still able to pass the cost of these improvements onto future property owners through a latecomer agreement (for a specified number of years).  If the local government contributes to the financing of the new infrastructure, it is entitled to a pro rata share of latecomer fees collected by the developer. 

The bill passed both chambers of the legislature without opposition.