News & Info

Who Knows Best?

Mark Bigelow
Government Affairs Associate

As can be imagined, since beginning work at Olympia Master Builders (OMB) I have exponentially increased my knowledge.  Unfortunately for you, the builder, most of this knowledge stems from a law and its interpretation thereof that has greatly hindered development in Washington State.  The law that I am referring to is the Growth Management Act (GMA) of Washington State.

The goal of the law is in and of itself noble and good - develop cities wisely while protecting farmland, forests, and habitat.  No problems there.  What I am finding, however, is that the problems occur when local officials, planning commissions, special interest groups, and state agencies choose to ignore a section of the law that states "that because circumstances vary from county to county and city to city, local jurisdictions should be given the power to implement the GMA according to local circumstances." A definite problem.

Currently, Lewis County and Ocean Shores are in the process of adopting a new Critical Area Ordinance (required by GMA) for their local jurisdictions. While OMB does not agree with some of the provisions (increased buffers) set forth in the proposed drafts, OMB is willing to work with locales in producing a document that adequately balances environmental protection with protecting property rights.  Unfortunately, others aren't quite as sensible.  Despite the adoption of many Department of Ecology (DOE) and Washington Department of Fish and Wildlife (WDFW) recommendations in the proposed drafts, including increased buffers and setbacks, these agencies continue to believe that the drafted CAOs does not go far enough to "protect" wetlands and wildlife habitat.

I would like to reference them to a fairly recent Washington State Supreme Court decision involving Skagit County, Swinomish Indian Tribal Community and Washington Environmental Council v. Skagit County.  The Swinomish Tribe and the Washington Environmental Council challenged Skagit County's CAO ordinance arguing Skagit County should do more than required by state law to protect and enhance critical areas - specifically that the County was required to impose restrictive buffer zones around salmon-bearing streams and enhancing fisheries and wildlife habitat.

These requirements are not imposed by the Growth Management Act and if implemented would have far-reaching impacts on the county's economy and local control over land use.  The Supreme Court ruled that Skagit County's "no harm" standard satisfied the Growth Management Act's requirement to protect the environment.  Theses requirements do not obligate local jurisdiction to impose measures to restore or enhance the environment, such as mandatory buffers.  Restorative measures like these go beyond the mandate of the Act.
 
Never has it been more apparent that regard should be given to local jurisdictions when proposing comprehensive planning and development of regulations, such as a Critical Area Ordinance (CAO), than in the cases of Ocean Shores and Lewis County.  Both jurisdictions have unique geographical and economical features which set them apart from other Washington cities and counties and require special consideration when planning for the future. 

Lewis County has an abundance of agricultural land that will inevitably play an important role in its economic development in the future.  However, because of GMA regulations, there are currently 44,000 acres of agricultural land that has been designated by the GMA growth board as invalid for development because it falls "outside of the urban growth zone and might have a long-term significance of for the commercial production of food or other agricultural products."  Lewis County desperately needs the invalidity order to be lifted so they can have local control over which lands can be rezoned for development in the future.  Without this land there is a worry that the county will not have enough land to adequately provide for future growth.  Although this example isn't directly related with the current proposed CAO, it shows what can happen when the decision making authority is taken from local jurisdictions and given to the state.  

Ocean Shores is geographically unique because it as it essentially one big wetland in between two large bodies of water.  To build the city it required creating a vast network of canals so that the water could drain and dry land could be created.  Therefore, if the city were to implement the recommendations from the DOE and WDFW into their proposed CAO and increase buffer widths the majority of the city's land would fall within the buffer limit and as result much of the future development of Ocean Shores would be put in jeopardy . Furthermore, the city would have to compensate those land owners whose land would be designated as undevelopable because of the new regulation. 

As can be seen, the "one size fits all approach" does not work for many of the cities and counties when trying to comply with government regulation.  Local jurisdictions need to be given deference when implementing GMA regulations, such as a CAO, to ensure that the regulation is accordance with local circumstances and economic goals.