The Growth Management Act's Sprawl Loophole

Washington state’s Growth Management Act (GMA) was created to concentrate the growth of cities and counties into urban areas; protecting farms, shorelines, and natural resource lands from the effects of urban sprawl.

Under the GMA, highly-populated or fast-growing counties are required to establish urban growth areas (UGAs)—areas where “urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature”. These counties are responsible for designating, expanding, and reducing UGA boundaries as necessary to meet their projected population growth.

If a county decides to open up more land to urban development, it needs to either expand the boundary of a UGA or de-designate farmland. When this happens, the GMA provides a legal pathway for individuals or organizations to appeal the decision if they think it is unnecessary or non-compliant with the GMA. These legal appeals are heard by a Growth Management Hearings Board—a special judicial body created to resolve challenges concerning the GMA.

This appeal process provides a clear process for resolving legal disputes. Unfortunately, there are several ways that counties can (legally) side-step it altogether.

The first way involves vesting—a legal term that means a property owner’s development rights are secured and cannot be changed retroactively. The loophole works like this: a county expands a UGA and then an appeal is filed disputing the legality of the expansion; but before the GMHB can decide the case, property owners secure development permits that legally vest their right to develop the land.

The second way involves annexation: a county expands a UGA and an appeal is filed, but then a city or town annexes the land inside the new UGA expansion before the GMHB reaches a decision on the appeal case. By annexing the land, the city or town converts the UGA expansion from unincorporated county land to part of an incorporated city or town (which are all, by definition, urban growth areas) and circumvents the appeal process.

Both of these tactics allow cities and counties to exploit a legal loophole: regardless of the decision reached by the GMHB, the UGA expansions persist because the development rights of the property owners or the incorporated areas cannot be rescinded once they have been legally established. Development in the UGA expansion areas, which often unnecessarily destroys farmlands and forests or otherwise impacts rural landscapes, have been allowed to proceed without legal recourse.

This loophole is problematic for several reasons:

1. It undermines the intent of the GMA to prevent urban sprawl and protect forests, farmlands and critical habitats
2. It subverts the power of the GMHB to hold counties accountable to complying with the GMA
3. It results in  unnecessary development on forests, farmland, and other rural habitats
4. It puts a strain on local jurisdictions to provide adequate facilities and services

So what have the impacts of this sprawl loophole actually been on Washington? Let’s take a look at a few case studies.

The map below introduces a few places where counties and cities have exploited the sprawl loophole.

Q&A with Sue Marshall, Friends of Clark County Board Member

Can you give a little background on yourself and your connection to Clark County?

We moved out to our now 4th generation family farm 6 years ago in Ridgefield, 29 acres former pear orchard now predominantly hazelnuts with a remainder of assorted pear and apple trees, also direct market cut flowers and some produce. Prior to moving out to and taking over the farm, my career in Oregon was as a nonprofit director and environmental public policy consultant aka lobbyist. In 2016 I joined and then became president of Friends of Clark County at the final stages of the county's adoption of their 2016 comprehensive plan update.

How were you involved in the 2016 Ridgefield/La Center expansions and appeal?

FOCC with Futurewise appealed these expansions as they promoted sprawl and converted active farmland.

In your opinion, why were the expansions problematic?

These expansions were problematic because they would allow for sprawl that would erode our county’s agricultural land base.

How did the community feel about it?

For folks who live in more rural areas, especially if they are involved in farming and forestry working lands activities, encroaching urban residential feels threatening as it will ultimately undermine the viability of working lands. Also, further urban development impacts and diminishes open space, wildlife habitat, and inevitably undermines water quality.

What have the impacts been on your community?

Loss of farmland and further parcelization of resource lands undermines local food production. It creates uncertainty among resource lands managers and undermines confidence to continue to invest in one's operation if it will inevitably come into an urban growth area or you will be surrounded by residential development that creates too many conflicts to continue farming.

Do you think the sprawl loophole in the GMA is problematic? Why?

It is a work around the law, the Growth Management Act, and undermines the protection of farmland, which in Clark County is the primary land target of developers to expand onto because it is generally flat and soils drain well, which is also what makes it ideal for farming.

The loophole undermines the intent of the GMA and threatens the long-term economic viability of local food production, which will become ever more vital as the climate crisis worsens.

Q&A with Kathy Miotke, Neighborhood Alliance of Spokane County

How were you involved with this case?

First, there were several people who lived on Five Mile who welcomed the Growth Management Act, many of us were on planning committees with the City and the County all through the process of completing the Comprehensive Plans and Policies. We understood and respected the value of having the Growth Management Hearings Board. We still do and we call it “The People's Court.”

The Neighborhood-Alliance signed on to this case when the Five Mile Prairie Neighborhood Association/Council with myself as Agent, appealed a County UGA Expansion of Five Mile Prairie consisting of 229 acres of land at the request of 5 developers. The expansion was done without joint planning with the City, without a Capital Facilities Plan supporting urban services both direct and indirect, without a population analysis or land quantity analysis. Keep in mind Five Mile Prairie is a CARA (critical aquifer recharge area), a geological hazardous area and a wildlife corridor. Despite this, the State Environmental Policy Act (SEPA) Environmental Impacts Assessment (EIA) that was issued was a determination of nonsignificance (DNS) - in other words there aren’t any impacts to the environment.

Can you describe the case and the implications?

The implications for Five Mile were huge. Here you have a one of a kind basalt mesa, somewhat circular in design with steep slopes rising about 500 ft on the outskirts of the city. We sit on 4 perched aquifers and underground springs are everywhere. We have or had “dryland farming”. Ground water below the surface with Class 1 and Class 2 soils on top of the Prairie and around the edge and down the slopes is forested land.  

A neighborhood plan for Five Mile Prairie won an award from the State in the middle 70's and was very precise, due to dryland farming and steep slopes, the plan was for rural development with single family homes along the ridge to capture the views and farming and orchards in the center. At the time of this appeal we already had some urban development along the south slope and it was done with blasting the basalt which caused 86 wells to go dry and created creeks and streams of water where none had been before. Many of the first homes that were built with basements had water in them. So you can see that when we appealed the expansion, we were thinking of all that had happened before.  

We were confident that we would win the GMHB Appeal, what we didn't know was that during the time the expansion was first announced but before it was published (we couldn't start our appeal until it was published) the County was holding work meetings with the developers to vest their properties. And during the time it took for the GMHB's decision, more time for developers to vest. We recently learned there were two properties totaling 88 acres that could not vest but one County Commissioner granted them a development agreement that basically said they could build out to urban densities whenever they wanted to do so and there were no time constraints or sunset clauses. That was in 2006 and they started building within urban reserve zoning last month. So even though we won, we lost!

So the County vested the property of the developers that they did the expansion for, but they couldn't provide services or make the population analysis or land quantity analysis work out in their favor and the City was bringing a suit against them for no joint planning efforts that left the City with providing services that they did not plan for. In 2007 the County decided to put the 229 acres back into UR zoning, which is a rural category. That way they did not have to provide urban services even to the islands of urban development they created by allowing vesting to go forward and they could use the 229 acres of (now rural zoning) in their revised land quantity analysis which suggests they need more land for urban expansion. The County did a similar reversal on the West Plains of the McHugh Appeal.

The two cases, Five Mile and West Plains were appealed to the Eastern Washington GMHB, this time for reversing the zoning, again without joint planning, without a Capital Facilities Plan to remedy what was now on the ground. Without a new SEPA EIA to address environmental concerns. They just used their old SEPA EIA assessment with the DNS. They thought this would lift the order of invalidity. Instead, we again won our appeal. The County has not provided anything other than rural services here on Five Mile and it's been 15 years.

In Your Opinion, why is this loophole harmful?

The loophole is harmful because it allows Counties to take active steps to subvert the appeals process through vested property rights or annexations, even when they know that a probable order of invalidity is coming their way. It creates sprawl, it creates pockets of urban development among prime farmland, berries, small orchards. It creates a huge problem for Cities who are expected to service these pockets of development when there was no joint planning, leaving city taxpayers holding the bill. It creates division with your neighbors. One pocket of development is getting urban services and it sits right next door to a rural zone that gets nothing. This is a far cry from what the State Award Neighborhood Plan for Five Mile envisioned. The storm water situation, the water, sewer, all urban services are more expensive on the edge of the City, 500 feet in the air.

We understand this bill is not going to stop the lenient vesting for the State of Washington, but it will allow a legal appeals process to go forward and we won't have illegal expansions of UGAs. It will not obligate the City and City taxpayers to grant sewer and water until the appeals process is completed and it is determined that the County is compliant with GMA. We have approached the County Commissioners several times about voluntarily stopping the vesting while an appeal is in process and the time period between the admission of expanding the UGA and the actual publishing of the expansion, which can be several weeks. Their answer has been consistent: “if you want to change it, take it to Olympia and do it”. And that's what we have been trying to do since 2005.

Henry Lippek: Attorney for Respondent Stillaguamish Flood Control District in the Island Crossing Dwayne Lane litigation. (Answers elicited from a phone conversation with Lippek, as well as from the text of a supplemental brief authored by Lippek on behalf of the Stillaguamish Flood Control District in the Dwayne Lane litigation.)

The issue with the proposed de-designation:

The area of the proposed agricultural land de-designation was in the Stillaguamish River floodplain, one of the most fertile and productive agricultural areas in the world. Periodic flooding greatly benefits agricultural production, if floodwaters are promptly drained, because floodwaters deposit fertile topsoils from the upstream watershed. On the other hand, intense urban residential, commercial or industrial development sustains unacceptable damages if inundated with floodwaters.

Island Crossing floods with some frequency. The historic practice of raising the height of urban development in floodplains above the expected elevation of flood waters with fill is unacceptable because it reduces the flood plains’ flood water storage capability, increases the elevation and duration of floods for others and triggers demands for raising levees and dikes that further increase the damages of flooding and the destruction of fish and wildlife habitat.

Why the ruling was problematic:

The Court of Appeals decision in Dwayne Lane II severely, if not fatally, weakened the GMA mandate to conserve agricultural lands. It essentially affirmed the ability of local governments’ to make agricultural de-designation decisions irrespective of the outcome of review by both the Growth Boards and the courts.

What has the impact been on the land within the de-designated area?

Since the ruling, a truck stop and car lot have been developed in this area. Both are built on engineered fill, so they’re above the floodplain. This is like having bricks in a baking pan and makes the flooding worse for the remaining land around the development.

Why the ‘sprawl loophole’ is harmful:

The Growth Management Act, among other things, was intended to halt such dysfunctional development. It has not worked as well as expected. Local government officials, going through the pretext of complying with the Growth Management Act’s requirements, often approve ill-conceived development proposals. The Growth Management Hearings Boards, intended to be the guardians of the Growth Management Act, have been battered by relentless litigation and undercut by appellate court decisions.

All of the Island Crossing litigation that the flood plain district was involved in for 25 years was about one issue: how much deference should the court give to the GMHB’s expertise. Ultimately in the State Supreme Court ruling on Island Crossing, they didn’t give the GMHB much deference at all. In many ways, the GMHB has become irrelevant in cases like this, they can do what they want but it often doesn’t make much difference. The big picture here is that ultimately the Growth Management Act is not working to prevent sprawl and protect rural landscapes, as it was intended to.

This loophole undermines the intent of the GMA by allowing counties to subvert the Growth Management Hearing Board appeals process to non-compliant build sprawling developments that gobble up farmlands, forests, and critical habitats, put a financial strain on jurisdictions to provide adequate infrastructure, facilities, and services to new developments.

Our state continues to attract new residents and based on recent projections, we know that growth is going to continue to occur in Washington. So as long as this loophole exists, there will be people who exploit it for irresponsible development on lands that we desperately need to protect.

Futurewise has been working to close this loophole since 2008 with a simple legislative solution.  SB5042  would ensure that controversial land use changes by counties are allowed to be reviewed by the Growth Management Hearings Board before going into effect. If the GMHB rules against the land use change (for example expansion of the urban growth boundary or removing designations for agricultural lands), the change won’t be allowed to go into effect, and the protections will continue.

Essentially, this amendment to the GMA would prevent counties from issuing permits to developers until after the GMHB has had the opportunity to review whether their proposed action is compliant with the GMA.

March 2022, An update from the Washington Can't Wait campaign team:

14 years later, the GMA’s ‘Sprawl Loophole’ is finally closed! First introduced in 2008, SB5042 is finally on its way to the Governor’s desk. By closing the sprawl loophole, SB 5042 will ensure that new development will stay concentrated in designated urban growth areas, places where homes are easily connected with transit, jobs, and public services. Words can hardly express how excited we are to see this bill pass! Many thanks to all of the organizations, individuals, and legislators who have rallied tirelessly for so many years to get this critical legislation over the finish line.

Learn more about this issue:

•  Watch a recording of our GMA Sprawl Loophole Panel 

Read our 3-part series of articles about the loophole, published in The Urbanist:

•  Goodbye Farmland, Hello Mega-Mansions 
•  How the GMA’s Sprawl Loophole Works in Practice 
•  What it Will Take to Close the Loophole in 2022