2020 Legislative Outcomes for Planning and Land Use-Related Issues

The following is a summary of the major planning and land use-related bills that were passed during the most recent Washington State legislative session and signed into law by the governor.

Timing of Comprehensive Plan and Shoreline Master Program Updates

ESHB 2342 aligns the timing of comprehensive plan updates required by the Growth Management Act (GMA) with the timing of shoreline master program updates required by the Shoreline Management Act. One result is that deadline for each set of updates has been extended by one year, with Shoreline Master Program updates to be adopted four years after a comprehensive plan update.

The law contains four different groupings of update schedules: the new comprehensive plan update schedule will be 2024, 2025, 2026, and 2027 and the new shoreline management plan update schedule will be 2028, 2029, 2030, and 2031. Once the upcoming cycle has been concluded, each set of documents (i.e., comprehensive plans and Shoreline Master Programs/Plans) will need to be updated every eight years thereafter. Another change is that Kitsap County and the cities within it are now in the first category of scheduled updates. 

SEPA Exemptions for Infill Development 

SHB 2673 adds an exemption for infill development under the Washington State Environmental Policy Act (SEPA) by allowing development to be exempt from SEPA review in areas where current density and intensity of use is roughly equal to or lower than projections in a local government's comprehensive plan. Prior to passage of this bill, a categorical “infill development” exemption was only for areas where the current land use density/intensity was lower than the planned growth levels contained in a local comprehensive plan.

Certificate of Compliance for Marijuana Businesses 

The Liquor and Cannabis Board will now be required, as of June 11, 2020, to issue a certificate of compliance to a marijuana business if its premises meet the statutory minimum distance requirements on the date of its application. This certificate of compliance allows the licensee to operate the business at the proposed location unless a disqualifying factor occurs after the certificate has been issued. See SSB 6206 for more details. 

Off-Street Parking for Accessory Dwelling Units  

Under SSB 6617, by July 1, 2021, the development regulations of any city that sits within a GMA-planning county cannot require off-street parking for an Attached Dwelling Unit (ADU) located within a quarter (0.25) mile of a major transit stop. There are a couple of “exceptions,” however, to this requirement:

1. A GMA-planning city that has adopted or substantively amended its ADU regulations within the previous four years is exempt. 
2. All other covered cities may still require the provision of off-street parking for an ADU located within 0.25 mile of a major transit stop if the city determines the ADU is in an area with a lack of access to street parking capacity or that on-street parking is infeasible due to limitations, such as physical space impediments. 

Actions to Expand Housing Supply 

SHB 2343 covers several different issues related to increasing the state’s housing supply and expands upon HB 1923, which was passed during the 2019 legislative session. This bill modifies the list of planning actions that certain cities are encouraged to take to increase residential development capacity, which include but are not limited to the following:

• Allowance of duplexes, triplexes, quadplexes, sixplexes, stacked flats, townhouses, or courtyard apartments in one or more single-family zoning districts or in zones where they are not currently authorized;
• Maximum allowable SEPA exemptions for certain types of new minor construction;
• Administrative review and approval of preliminary and/or final plats;
• Creation of one or more “medium-density” zoning districts in which individual lots may be no larger than 3,500 square feet and single-family residences may be no larger than 1,200 square feet;
• Permit process improvements;
• Elimination of conditional-use permits for all housing types (except for essential public facilities);
• Flexible on-street and off-street parking standards for developments with private roads;
• Several ADU-related incentives; and
• Local programs that offer financing, design, permitting, or construction for homeowners to convert a single-family home into a duplex, triplex, or quadplex where such housing is authorized, with the option for the city to impose an affordability requirement for home ownership or when renting the unit.

A complete listing of potential actions may be found in the session law. The date by which certain planning actions must be taken in order for them to be exempt from administrative or judicial appeal under the Growth Management Act and the State Environmental Policy Act (SEPA) was changed from April 1, 2021, to April 1, 2023.

This bill also opens eligibility of state housing grants to all cities by eliminating the prior minimum population requirement. In addition, the appeals protections from the GMA and SEPA were extended by two years — until 2023 —  and the definition of Permanent Supportive Housing has been modified. 

Private Detention Facilities are Not Essential Public Facilities

HB 2640 originated as a legislative solution to a conflict faced by the City of Tacoma. The city was as odds with a private operator of a detention facility that is holding people on behalf of its client, the U.S. Immigration and Customs Enforcement agency. The operator wanted to expand the facility in a designated seismic hazard and tsunami zone area, and the existing facility was located in a zoning district that no longer allowed private detention facility use (i.e., the current use could continue but not be expanded). This conflict ended up being bounced back and forth between the Growth Management Hearing Board and a state superior court on the question of whether private detention facilities are “essential public facilities” (EPFs) under the GMA.

The new law states that essential public facilities do not include: 

(F)acilities that are operated by a private entity in which persons are detained in custody under process of law pending the outcome of legal proceedings but are not used for punishment, correction, counseling, or rehabilitation following the conviction of a criminal offense. Facilities included under this subsection (1)(b) shall not include facilities detaining persons under RCW 71.09.020 (6) or (15) 10.77 71.05 RCW. 

In other words, such facilities are not “protected” by the GMA’s EPF provisions and, therefore, can be restricted or prohibited by a local zoning code. 

Once the bill became law, it took effect on March 25, 2020, and applies retroactively to land-use actions imposed prior to January 1, 2018, as well as prospectively. While this law was initiated to address Tacoma’s quandary, it applies to all GMA-planning communities. If a community wants to regulate the siting or expansion of a detention facility within its borders, it should consider reviewing and revising any EPF-related comprehensive plan policies and zoning code provisions. 

Multi-Family Tax Exemption (MFTE)  

SHB 2950 extends until December 31, 2021, the 12-year property tax exemption for certain residential development properties (those with a minimum 20% affordable housing component). This bill also convened a workgroup to study the multi-family tax exemption program (MFTE) but Governor Inslee line-item vetoed that study effort when he signed the operating budget due to concerns about COVID-19-related revenue declines.  

Author's Note: I want to thank MRSC’s Laura Crandall, Public Policy Consultant and Finance Analyst; Steve Gross, Legal Consultant; and Aly Jones, Public Policy Intern, for their assistance with this blog post.