Unpopular but Necessary: What Exactly Is an Essential Public Facility?

The Growth Management Act (GMA) requires local governments that plan under the GMA to have a process for identifying and siting “essential public facilities.” RCW 36.70A.200(1)(a) states that essential public facilities includes those facilities that “are typically difficult to site” and lists examples. The statute also provides that “no local comprehensive plan or development regulation may preclude the siting of essential public facilities.”

That may seem straightforward, but it is not. A recent Washington Court of Appeals case, Homeward Bound in Puyallup v. Central Puget Sound Growth Management Hearings Board, provides helpful insight on the nuances of essential public facilities and the requirements that they bring to development regulations.

Background

Are day use centers and overnight shelters for people experiencing homelessness essential public facilities?

The City of Puyallup (City) adopted ordinances that restricted the location of day use centers and overnight shelters to certain industrial, commercial, business, and medical zones. Homeward Bound in Puyallup (Homeward), a nonprofit entity providing services to individuals experiencing homelessness in the City, filed a petition with the Growth Management Hearings Board (GMHB) claiming (among other things) that day use centers and overnight shelters are essential public facilities. Significantly, Homeward did not ask the City to incorporate these uses into its local definition of essential public facility. Rather, it argued that day use centers and overnight shelters are essential public facilities as a matter of state law.

The GMHB found that the City’s regulations are consistent with the GMA and the court upheld the GMHB’s decision. Here are a few takeaways from the decision:

Definition of Essential Public Facility

There is a list of essential public facilities in RCW 36.70A.200(1)(a):

Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, community facilities as defined in RCW 72.05.020, and secure community transition facilities as defined in RCW 71.09.020.

The use of the term “such as” indicates that this list is illustrative and not exhaustive. But what about essential public facilities that are not on the list?

Homeward argued that day use facilities and shelters are essential public facilities because they are “typically difficult to site.” While the City asserted that it is up to local governments, and not the GMHB or the courts, to determine whether facilities not listed in RCW 36.70A.200(1)(a) should be essential public facilities, Homeward claimed this view was too narrow and pointed to WAC 365-196-550(4)(b) which states that “counties and cities should take a broad view of what constitutes a public facility.”

The GMHB and the court agreed with the City. RCW 36.70A.200(1)(a) lists the facilities that cities and counties are required to treat as essential public facilities. Beyond that, counties and cities are encouraged to identify additional types of essential public facilities. But, as noted in WAC 365-196-030(2), the Washington State Department of Commerce provisions encouraging a broader view do not have regulatory effect:

Compliance with the procedural criteria is not a prerequisite for compliance with the [GMA]. This chapter makes recommendations for meeting the requirements of the [GMA], it does not set a minimum list of actions or criteria that a county or city must take. Counties and cities can achieve compliance with the goals and requirements of the [GMA] by adopting other approaches.

Process for Designating Essential Public Facilities

RCW 36.70A.200(1)(a) requires that cities have “a process for identifying and siting essential public facilities.” The City did not have a specific process for identifying essential public facilities, a fact which “dismayed” the court. Nevertheless, the court observed that Homeward could have petitioned the City to designate day use centers and overnight shelters and appealed any denial to the GMHB. The court stated that for facilities not listed in RCW 36.70A.200(1)(a), the statute required the plaintiff to ask the City to identify day use facilities and overnight shelters as essential public facilities and the plaintiff had not done so. The court noted that Homeward:

...does not convincingly argue that, as a matter of law rather than as a matter of local discretion, shelters and day use centers for people experiencing homelessness must be identified as essential public facilities under the statutory language. To do so would encroach on local authority that the legislature specifically granted to cities and counties. 

Here are a few examples of essential public facility (EPF) regulations and policies from Washington local governments:

• Jefferson County Comprehensive Plan, Essential Public Facilities: Includes a list of EPF types and county goals and policies for establishing EPFs.
• Monroe Municipal Code Chapter 22.38 – Essential Public Facilities: Includes EPF types, siting for both local and state EPFs, and processing guidelines.
• SeaTac Municipal Code Section 15.115.040 – Essential Public Facilities: Includes list of existing facilities, review processes, and application procedures. 
• University Place Municipal Code Chapter 19.40 – Essential Public Facilities: Details processes for listed and unlisted facilities, including facility review process for establishing an EPF.

Understanding the Competing Interests in Essential Public Facility Policy Discussions

The court acknowledged that local governments must frequently balance mutually competing goals and that the role of the GMHB and reviewing courts is not to second-guess a local government’s reasonable choices under the GMA. If more than one appropriate planning choice exists, then the GMHB must defer to the local government’s discretion. A reviewing court does not determine the correct planning decision, it simply determines if the GMHB decision is supported under the relevant standard of review.

The court was also frank about the competing political interests in play with respect to facilities that serve individuals experiencing homelessness. It recognized that some local governments may be tempted to make their locality an unappealing place for individuals experiencing homelessness to settle. It also acknowledged that there may be “strong incentives to appease businesses and local residents by moving services for people experiencing homelessness out of business districts and downtown cores.” It concluded:

In sum, we recognize that local legislative bodies, as well as advocates who want to provide services for people experiencing homelessness in a city, will often have to navigate a difficult local process, but that is the system that the legislature currently contemplates. It is the legislature, not the Board, that must expand the statutory list of essential public facilities if it wishes to establish overnight shelters and day use centers are essential public facilities as a matter of law, removing discretion from local governments. The legislature has otherwise left the identification of facilities that are not expressly identified in the statute to local government discretion.

Conclusion

Although the essential public facility provisions in state law are a limitation on the zoning authority of local governments, cities and counties still retain significant discretion to identify and define essential public facilities beyond those listed in RCW 36.70A.200(1)(a). Having procedures in place for identifying additional essential public facilities helps counties and cities navigate the competing interests that may arise when a request is made.