February 2, 2011

Court Clarifies SEPA Planned Action Provision that Expedites Sustainable Communities

Building sustainable communities is a state planning goal and a key strategy to reduce greenhouse gas emissions.1 Ironically, the Environmental Policy Act (Chapter 43.21C RCW, “SEPA”), which was intended to be a protective shield for the environment, has been the primary tool used by project opponents to delay or even stop sustainable communities. In order to address this unintended consequence, the Washington Legislature has amended SEPA to dispense qualifying projects from SEPA review at the project level if a non-project environmental impact statement (EIS) has been previously completed at the planning level. For example, in 1995 the Legislature authorized “planned actions” by amending RCW 43.21C.031. Planned actions provide greater regulatory efficiency and certainty for urban developers by precluding SEPA challenges, at the project level, for proposed development meeting statutory criteria.

Since 1995 a number of cities have effectively used planned actions to encourage infill and economic development. Recently, the Washington State Court of Appeals, Division 1, ruled on the state’s first challenge to a planned action ordinance: Davidson Serles & Associates v. City of Kirkland, --- Wn. App. --- (2011) Westlaw: 198618. The court’s ruling clarified several planned action provisions and addressed SEPA and Growth Management Act jurisdictional questions:

 

  • The parties to the appeal agreed (and so the court did not decide) that the Growth Management Hearings Board did not have jurisdiction to review the challenge to the planned action ordinance because it was adopted under SEPA instead of under the Growth Management Act. 
     
  • The court held that SEPA review was not required for the ordinance that adopts a planned action because an EIS must already have been prepared for the comprehensive plan, subarea plan, fully contained community, master planned resort, master planned development, or phased project that the actions identified in the planned action ordinance will be consistent with or implement. Because the planned action’s impacts are already identified by a previous EIS, “it would be unnecessarily duplicative to require an additional EIS in order to enact the planned action ordinance.” 
     
  • The Growth Management Hearings Board has exclusive jurisdiction to review challenges to the EIS for the comprehensive plan, subarea plan, or other plan or regulation that is the basis for the planned action ordinance.

 

Court Also Notes the Legal Vulnerabilities of Planned Actions

Because a planned action ordinance does not itself require an EIS, the Court rejected the argument challenging the adequacy of the EIS for the planned action ordinance. However, the Court noted that projects identified in a planned action ordinance are vulnerable to SEPA-based challenges at the project level: if (1) the project does not meet the requirements of the planned action ordinance or (2) where the earlier-completed EIS does not adequately address all probable significant adverse impacts of a particular proposed project (WAC 197-11-172(2)(b)). In effect, this provision authorizes a project opponent, instead of challenging the EIS years earlier when it was prepared, to “second guess” the EIS at the project level, undermining the purpose of SEPA’s planned action provision to streamline the development of desired projects.

In contrast, RCW 43.21C.420, adopted last year, explicitly immunizes certain transit-oriented projects from SEPA appeals if a non-project EIS was previously prepared in accordance with statutory procedures. Foster Pepper attorneys assisted in drafting RCW 43.21C.420.

Cities seeking to encourage sustainable communities should closely review the available forms of upfront SEPA, including planned actions, optional local infill exemptions (RCW 43.21C.229; WAC 197-11-800(1)), utilization of regulatory requirements in lieu of SEPA review, and RCW 43.21C.420. Each tool is unique, with its associated benefits and issues. Additionally, urban developers relying on such provisions should determine whether their project remains vulnerable to a SEPA-based challenge and develop a strategic plan to minimize the cost and delay of defending their project should such a challenge arise.

For additional information on “upfront SEPA,” please contact Dick Settle (206.447.8980), Pat Schneider (206.447.2905). or Jeremy Eckert (206.447.6284).

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1 See, RCW 36.70A.020(1); Climate Advisory Team, Leading the way: A comprehensive approach to reducing greenhouse gases in Washington State, Washington State Department of Ecology (2008).

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