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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. It,
For Meeting of: 5/21/2013
ITEM TITLE: Response to City Council's request from the May 7, 2013
meeting for a report regarding comprehensive plan
amendments.
SUBMITTED BY: Steve Osguthorpe, AICP
Community Development Director
(509) 575 -3533
SUMMARY EXPLANATION:
At the Council business meeting of May 7, 2013, City Council requested a report regarding
comprehensive plan amendments. See attached report.
Resolution:
Other (Specify):
Contract:
Start Date:
Item Budgeted:
Funding Source /Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Mail to:
Phone:
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
Ordinance:
Contract Term:
End Date:
Amount:
Improve the Built Environment
City Manager
ATTACHMENTS:
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F-I Report on Potential Comp Plan Amendment Requests Memo - Response re Comp Plan
May 21 2013_rvsd.pdf Amendment Requests
0 Memo COMP PLAN AMENDMENT PROCESS May 16 2013 REVISED.docx memo
COMMUNITY did VELOI1AIENTDEPARTMENT
129 North ,Se con d Sireet, 2nd Floor, Yakima, Washingilm 98901
Phone (509) 575-6113 - Fax (509) 576-6576
www.yakimawa.gov
From: Steve Osguthorpe, AICP
Community Development Director I
Subject: Report on Potential Comprehensive Plan Amendment Requests
IMMUL
this year that needed comprehensive plan amendments.
Yakima
Code Administration (509) 575-6126 Planning (509)5,75-65183 Office ofNeighborhood & Development Semi es (509) 575-6101
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MEMORANDUM
May 6, 2013
TO: Honorable Mayor and City Council
Tony O'Rourke, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Comprehensive Plan —Amendment Process
The Washington State Growth Management Act ( "GMA ") requires those cities and
counties subject to the Act to develop and adopt comprehensive plans. These
comprehensive plans are considered the "master planning" documents intended to
guide cities and counties into planned growth, stewardship of natural resources,
avoidance of "urban sprawl," protection of property rights, economic development,
promotion of housing and transportation, open space and creation, planned expansion
of public services and historic preservation. RCW 36.70A.020.
Comprehensive plans must address key "mandatory elements." These include a land
use element, capital facilities plan element, housing element, utilities element, rural
element (counties), transportation element, economic development element, park and
recreation element. RCW 36.70A.070.
A. Review of Comprehensive Plans — State Law.
Comprehensive plans are subject to mandatory review and amendment deadlines. In
2012, the deadline for cities within Yakima County was extended to June 30, 2017:
(5) Except as otherwise provided in subsections (6) and (8) of this section, following the review of
comprehensive plans and development regulations required by subsection (4) of this section,
counties and cities shall take action to review and, if needed, revise their comprehensive plans
and development regulations to ensure the plan and regulations comply with the requirements of
this chapter as follows:
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 2
(c) On or before June 30, 2017, and every eight years thereafter, for Benton, Chelan, Cowlitz,
Douglas, Kittitas, Lewis, Skamania, Spokane, and Yakima counties and the cities within those
counties;...
RCW 36.70A.130(5)(c) (Emphasis added). Thus the mandatory review for the City of
Yakima must occur by June 30, 2017 for the current cycle, and every eight (8) years
thereafter.
Aside from the "mandatory" review /amendment process in RCW 36.70A.130, the GMA
envisions a "continuing review and evaluation." RCW 36.70A.130(1) and (2) provide:
(1)(a) Each comprehensive land use plan and development regulations shall be subject to
continuing review and evaluation by the county or city that adopted them. Except as otherwise
provided, a county or city shall take legislative action to review and, if needed, revise its
comprehensive land use plan and development regulations to ensure the plan and regulations
comply with the requirements of this chapter according to the deadlines in subsections (4) and (5)
of this section....
(2)(a) Each county and city shall establish and broadly disseminate to the public a public
participation program consistent with RCW 36.70A.035 and 36.70A.140 that identifies procedures
and schedules whereby updates, proposed amendments, or revisions of the comprehensive plan
are considered by the governing body of the county or city no more frequently than once every
year, except that, until December 31, 2015, the program shall provide for consideration of
amendments of an urban growth area in accordance with RCW 36.70A.1301 [apples to counties
between 100,000 and 200,000 in eastern Washington] once every year. "Updates" means to
review and revise, if needed, according to subsection (1) of this section, and the deadlines in
subsections (4) and (5) of this section or in accordance with the provisions of subsection (6) of
this section. Amendments may be considered more frequently than once per year under the
following circumstances:
(i) The initial adoption of a subarea plan. Subarea plans adopted under this subsection
(2)(a)(i) must clarify, supplement, or implement jurisdiction -wide comprehensive plan policies, and
may only be adopted if the cumulative impacts of the proposed plan are addressed by
appropriate environmental review under chapter 43.21 C RCW;
(ii) The development of an initial subarea plan for economic development located outside
' "Every eight years thereafter" is inconsistent with the current "five year" mandate in existing YMC
16.10.060. As explained below, the "five year" cycle was enacted when the City adopted YMC 16.10.060
in 2003. The provisions of RCW 36.70A.130 have been amended several times since then, with the last
amendment occurring in 2012 (Laws of 2012, Chapter 191, section 1).
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 3
of the one hundred year floodplain in a county that has completed a state - funded pilot project that
is based on watershed characterization and local habitat assessment;
(iii) The adoption or amendment of a shoreline master program under the procedures set
forth in chapter 90.58 RCW;
(iv) The amendment of the capital facilities element of a comprehensive plan that occurs
concurrently with the adoption or amendment of a county or city budget; or
(v) The adoption of comprehensive plan amendments necessary to enact a planned
action under *RCW 43.21 C.031(2), provided that amendments are considered in accordance with
the public participation program established by the county or city under this subsection (2)(a) and
all persons who have requested notice of a comprehensive plan update are given notice of the
amendments and an opportunity to comment.
(b) Except as otherwise provided in (a) of this subsection, all proposals shall be considered by the
governing body concurrently so the cumulative effect of the various proposals can be
ascertained. However, after appropriate public participation a county or city may adopt
amendments or revisions to its comprehensive plan that conform with this chapter whenever an
emergency exists or to resolve an appeal of a comprehensive plan filed with the growth
management hearings board or with the court.
(Emphasis added).
Thus, bottom line, state statute mandates review (and amendment of any matter
deemed warranted) of the City of Yakima's comprehensive plan by June 30, 2017 — and
every eight years thereafter.
There is no mandate in state law that requires the city to initiate the review process
each year. As observed by the Western Washington Growth Management Hearings
Board in 1000 Friends of Washington and Pro - Whatcom v. Whatcom County, 2004 WL
2094936 (August 2, 2004):
We look to RCW 36.70.130 to determine what is required for an update. This provision of the
GMA (RCW 36.70.130) contains two major kinds of revision requirements for comprehensive
plans and development regulations. First, comprehensive plans and development regulations
adopted pursuant to Ch. 36.70A RCW are subject to "continuing review and evaluation ". While
there is no express requirement that this be done every year, this type of review is usually done in
an annual comprehensive amendment cycle, RCW 36.70A.1 30(2)(a)....
(Emphasis added). Even the requirement that the comprehensive plan be reviewed
"every eight years" is not a requirement that the comprehensive plan be amended. In
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 4
Thurston County v. Western Washington Growth Management Hearings Board, 164
Wash.2d 329, 343 -44, 190 P.3d 98 (2008), the court held:
Futurewise argues it should be able to challenge all aspects of a comprehensive plan following a
seven year update, regardless of whether a comprehensive plan is revised. The County argues a
party may challenge revisions made during an update but may not challenge a county's failure to
revise a comprehensive plan. The Court of Appeals agreed with Futurewise, holding a GMHB has
jurisdiction to hear a challenge brought within 60 days of publication of a county's updates to its
comprehensive plan, including those portions not amended during the update process. Thurston
County, 137 Wash.App. at 796, 154 P.3d 959. The Court of Appeals reasoned any limitation on
the type of challenge that may be brought against an update "would undermine the purpose of
requiring periodic reviews." Id. at 794, 154 P.3d 959. The court recognized the importance of
finality in land use decisions but noted the legislature, by requiring the seven year update,
determined "the benefits to the public of keeping abreast of changes in the law outweigh the
benefits of finality to landowners." Id. at 794 -95, 154 P.3d 959. We disagree.
Former RCW 36.70A.130(1)(a) does not explicitly define which aspects of a comprehensive plan
must be updated, nor does it delineate the scope of challenges that may be brought against a
comprehensive plan. The GMA clearly does not require a county to reenact a new
comprehensive plan every seven years. It simply mandates a county "review and, if needed,
revise its comprehensive land use plan and development regulations." Former RCW
36.70A.130(1)(a). A county must review its entire comprehensive plan every seven years.
However, the GMA does not explicitly require a county to revise every aspect of its
comprehensive plan and we refuse to imply such an onerous requirement in the absence of an
explicit GMA provision to the contrary.
We hold a party may challenge a county's failure to revise a comprehensive plan only with
respect to those provisions that are directly affected by new or recently amended GMA
provisions, meaning those provisions related to mandatory elements of a comprehensive plan
that have been adopted or substantively amended since the previous comprehensive plan was
adopted or updated, following a seven year update. This rule provides a means to ensure a
comprehensive plan complies with recent GMA amendments, recognizes the original plan was
legally deemed compliant with the GMA, and preserves some degree of finality.
B. Review of Comprehensive Plan — City of Yakima Municipal Code.
Provisions in the Yakima Municipal Code pertaining to the comprehensive plan review
and amendment process are found in two chapters. Chapter 1.42 YMC describes the
functions of the City of Yakima Planning Commission, and Chapter 16.10 YMC defines
the comprehensive plan review procedures. YMC 1.42.070 provides:
urban 1.42.070 Yakima ■ ■ plan—Adoption an■ amendment procedures.
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 5
A. Plan Adoption. The Yakima urban area comprehensive plan ( "the plan ") shall consist of Yakima
Urban Area Comprehensive Plan 2025, adopted by Ordinance No. 2006 -62 on December 15, 2006,
the Terrace Heights Neighborhood Plan adopted on June 4, 1999, and the West Valley Neighborhood
Plan, as adopted. The plan and its elements and plans including those incorporated by reference are
hereby adopted as the official comprehensive land use plan for the city of Yakima, as required by
Chapter 36.70A RCW.
B. Plan Amendments. Requests for amendments to the Yakima urban area comprehensive plan may
be submitted in accord with YMC 16.10.030, and will be docketed for review and acted upon once per
year as required by RCW 36.70A.130. Proposed amendments shall be considered concurrently to
ascertain the cumulative effect of the various proposals. Initial adoption of subarea plans and the
adoption or amendment of a shoreline master program are not subject to the docketing requirement,
and may be considered independently of the annual amendment process. Amendments to the plan
may also be considered whenever an emergency exists, or to resolve an appeal of the plan filed with
the Eastern Washington Growth Management Hearings Board, following appropriate public
participation.
C. Amendment Review Process. Proposed amendments to the plan shall be submitted to the city of
Yakima department of community and economic development, along with the required application fee,
for review by the city planning commission. The city planning commission shall hold at least one public
hearing to receive public testimony on proposed amendments, and shall forward its recommendation
regarding proposed amendments to the city council. The city council shall hold at least one public
hearing on the city planning commission's recommendation. The city council may refer any proposed
amendment back to the city planning commission for further consideration and recommendation. The
city council may amend the plan or reject any proposed amendments subsequent to the city council
public hearing.
D. Existing Land Use Regulatory Ordinances Remain in Effect. All existing land use regulatory
ordinances and land use controls shall remain in effect, including Title 15, Yakima Urban Area Zoning
Ordinance; city of Yakima official zoning map; Title 14, Subdivisions; YMC Chapter 6.88,
Environmental Policy; and YMC Chapter 11.58, Flood Damage Prevention, until such time that these
ordinances are amended. Future land use decisions shall be based upon these ordinances, as
periodically amended.
E. Severability. If any section, sentence, clause or phrase of the adopted Yakima urban area
comprehensive plan should be held to be invalid or unconstitutional by any body or court with authority
and jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of
any other section, clause or phrase of the adopted Yakima urban area comprehensive plan.
F. Revival of 1997 Plan upon Invalidation. In the event that the 2006 Yakima urban area
comprehensive plan, or any portion thereof, is invalidated by the Eastern Washington Growth
Management Hearings Board, or any other body or court with authority and jurisdiction, the 1997
Yakima urban area comprehensive plan, or the relevant portions thereof, shall be revived and shall be
in effect until a new comprehensive plan, or new relevant portions, are established.
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 6
(Ord. 2011 -10 § 2, 2011; Ord. 2010 -22 § 1 (part), 2010: Ord. 99 -33 § 1, 1999; Ord. 97 -22 § 2, 1997:
Ord. 2579 § 1, 1981: Ord. 972 § 1, 1967: Ord. 779 §§ 1, 2, 1966).
(Emphasis added).
The sections in Chapter 16.10 YMC include the following:
16.10.030 Procedures.
(1) Annually, the city council shall open the comprehensive plan amendment process and the
city planning commission shall hold a public meeting in February to announce that the
comprehensive plan amendment process is open to accept applications. At that time, the city
planning commission will invite public comments and suggestions regarding proposed changes to
the comprehensive plan.
16.10.060 Timing of amendments.
(1) The comprehensive plan shall be amended no more often than once per year and no less often
than once every five years in accordance with the time periods and procedures established in this
chapter except in the circumstances described in YMC 16.10.020(2).2
(Emphasis added). As noted in the above discussion, nothing in state law mandates an
"annual review." The law contains only a directive that review and evaluation be
ongoing, and that the process shall not be opened by for possible amendment more
than once per year — except in circumstances mirroring the City's exceptions as stated
in YMC 16.10.035. RCW 36.70A. 1 30(2)(a).
The two City code sections quoted above seemingly present conflicting requirements.
However, when faced with apparently conflicting provisions, courts apply the following
"rule of statutory construction." This rule has been stated as follows:
It is a well - established tenet of statutory construction that "[s]tatutes must be interpreted and
construed so that all the language used is given effect, with no portion rendered meaningless or
2 YMC 16.10.020 refers to the exceptions in YMC 16.10.035, which allow amendments to the
comprehensive plan at any time upon a showing of emergency, adoption of a shoreline master program,
subarea plan, or amendment of the capital facilities element of the comprehensive plan.
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 7
superfluous." Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303
(1996).
Clallam County v. Dry Creek Coalition, 161 Wash.App. 366, 388 -89, 255 P.3d 709
(2011). State law and City code provisions "mandate" a review at least (a) by June 30,
2017 and every eight years thereafter (state law); or (b) "no less than once every five
years" (City code). The words in YMC 16.10.030(1) stating that, "Annually, the city
council shall..." can logically be interpreted to mean that in those years where the
review /amendment process is to be opened, the city council shall cause the process to
be opened. The review process must be opened "no less than once every five years."
The "directive" in YMC 16.10.030 thus has more to do with how the process is opened
rather than serving as a mandate that it be opened every year.
This construction was also affirmed by Municipal Research and Services Center
(MRSC), as recently printed in an article in the Yakima Herald. It was noted by the
MRSC spokesman that many cities do not open the review annually, and that the once -
in- five -year mandate was common.
Likewise, the wording of YMC 1.42.070(8) simply states that "Requests for
amendments to the Yakima urban area comprehensive plan may be submitted in
accord with YMC 16.10.030, and will be docketed for review and acted upon once per
year as required by RCW 36.70A.130." In this section, requests for amendments "may
be submitted in accord with YMC 16.10.030." If the process for review is opened in any
year by the city council, such requests "will be docketed for review and acted upon."
C. Conclusions.
Based on the provisions and requirements of state law, and applying rules of statutory
construction to existing City code provisions, it is my conclusion that the provisions of
both can be construed to retain the meaning and applicability of each. In summary,
under the amended provisions of RCW 36.70A.130, the City of Yakima is mandated to
complete a review (with possible amendments) on or before June 30, 2017. The City
Council retains the right to open the review process no more than once annually to
consider requested amendments. However, it is under no mandate to do so, and may
forego the annual "opening of the review process" in any year it deems prudent or
advisable — so long as the mandated provisions requiring review at least once in five
years (or eight years per state statute).
Memorandum to Honorable Mayor and Members of the City Council
May 16, 2013
Page 8
It should also be noted that the provisions of Chapter 16.10 YMC (and corresponding
provisions of Chapter 1.42 YMC) should be amended to (a) correspond to amendments
to the applicable state law, and (b) to remove any confusion concerning the City
Council's ability to forego opening the process in any year deemed necessary or
appropriate,