8. Local Project Review Act
The Local Project Review Act was part of the Land Use Regulatory Reform Act signed into law in 1995 (ESHB 1724, codified in Chapter 36.70B RCW). It requires all counties and cities to combine permit review and environmental review, and to consolidate administrative appeals of permit and SEPA decisions. Integrated project review provides a more streamlined permit and environmental review process by reducing duplication and paperwork.
The Legislature recognized that counties and cities planning under the Growth Management Act (GMA) must rely on their comprehensive plans and development regulations as the building blocks for land use regulatory reform. GMA planning decisions provide "the means to effectively combine certainty for development decisions, reasonable environmental protection, long-range planning for cost-effective infrastructure, and orderly growth and development [ESHB 1724, Section 1]." Land use decisions made during the GMA planning process should not be revisited at the project level. At the same time, environmental impacts that were studied as part of the GMA planning process should not be reanalyzed at the project level.
All counties and cities are required to develop an integrated project review process that: combines both procedural and substantive environmental review with permit review; and allows only one open record hearing and one closed record appeal in an administrative appeal process [RCW 36.70B.050].
Chapter 36.70B RCW has no specific requirements for how non-GMA counties and cities are to integrate their processes, except for administrative appeals (see Appeals section).
Counties and cities planning under GMA have additional requirements that must be adopted by ordinance or resolution. The following steps must be included in their project review process:
There have been a number of questions on whether the project review requirements in Chapter 36.70B RCW apply to comprehensive plan or development regulation amendments, such as rezones. Comprehensive plan and development regulation amendments are nonproject actions and therefore not subject to project review requirements. Amendments to the comprehensive plan and development regulations are nonproject regardless of whether they are initiated by the county or city or by citizen request, however, in all instances they remain subject to SEPA and GMA requirements for public review and comment.
Non-GMA cities and counties may also choose to follow this process for integrating their permit and environmental review procedures.
Project review normally begins when an applicant submits a permit application (usually accompanied by a SEPA environmental checklist). However, project review can begin earlier if a process is offered or required by the local jurisdiction. Counties and cities are not required to provide a pre-application process, but many do.
A pre-application process can be beneficial to the applicant and to reviewing agencies. The process usually involves a meeting between the applicant, various county or city departments, and other agencies that issue permits. A pre-application meeting allows the applicant to discuss the project and gather information on what studies and mitigation may be required. The county or city has an opportunity to inform the applicant whether the project appears to be consistent with the development regulations and/or comprehensive plan, and to identify any environmental studies or mitigation that may be required. (Also see Section 2.2. on providing a pre-application process under SEPA Environmental Review.)
Counties and cities planning under GMA are required to determine whether an application is complete enough to begin processing within 28 days of submittal [RCW 36.70B.070]. If the application is determined complete, it is documented in a "determination of completeness" and sent to the applicant.
If the application is not complete, the GMA county or city may request additional information from the applicant. Once this information is submitted, the agency has 14 days to determine whether the application is now complete and to notify the applicant in writing.
Even though a county or city has determined an application to be complete, it is not precluded from later requesting additional information or studies [RCW 36.70B.070(2)].
The issuance of the determination of completeness also starts the "120-day clock." Once the determination of completeness is issued, the GMA county or city has 120 days to issue the notice of decision.
The determination of completeness may include the following optional information:
SEPA Considerations at this stage of project review
Is SEPA review required? If this is the first permit application submitted for a proposal, the county or city will also determine whether the proposal is categorically exempt (or whether SEPA has already been completed). If SEPA review is not required, the county or city must still comply with the requirements of the Local Project Review Act [Projects exempt from SEPA may be exempt from the NOA requirement. See RCW 36.70B.110(5)].
Who is lead agency? In most instances, the county or city will be the lead agency. However, the county or city will not be the lead agency when another agency is the proponent or is designated lead under the SEPA Rules for a specific type of proposal (see WAC 197-11-938). If the county or city is not the lead agency, it will still analyze the consistency of the project with applicable development regulations and/or comprehensive plan policies. That information should be provided to the lead agency.
What if the lead agency is also the project proponent? When there is a public proposal, such as a road project or sewer system, the proponent is usually the SEPA lead agency. Public proposals often take several years to plan and implement. The public agency proponent usually does its environmental review under SEPA months or years prior to submitting a permit application to the county or city. The Local Project Review Act and SEPA were amended in 1997 to allow a public agency that is funding or implementing a proposal to conduct its environmental review and complete procedural appeals under SEPA prior to submitting a permit application [RCW 36.70B.110(1) and to SEPA (43.21C.075(3)(b)(iii)].
Other issues to consider
Issues that should be considered during initial project review by GMA counties or cities include the following:
Is the project description complete? Is the project properly defined? Have all interdependent pieces of the project been identified? (See WAC 197-11-060(3))
Is the project consistent with the development regulations, or in the absence of applicable development regulations, the comprehensive plan? (See RCW 36.70B.030 and 040, and the section below on Analyzing Consistency.)
Are specific studies needed under the development regulations and/or SEPA environmental review, or by other local, state, or federal regulations (e.g., a wetland study, transportation study, etc.)?
What are the environmental impacts of the proposal? Have they been addressed by existing environmental documents (for example, an EIS on the comprehensive plan or an EIS on a similar project or located in a similar geographic area)?
Table 4 shows a general overview of how local project review integrates permit and environmental review processes when the GMA city or county is the SEPA lead agency for a project proposal and an environmental impact statement is required. See Table 5 for the typical integrated project review with the use of the optional DNS process.
Will mitigation/conditions be required by the development regulations; or other local, state, or federal regulations?
Are there environmental impacts that have not been addressed by the regulations?
It may not be possible to answer all of these questions during the initial review phase, but it is important to consider them as early in the review process as possible.
GMA counties and cities are required to issue a notice of application (NOA) within 14 days after determining the permit application is complete (with some exceptions, see RCW 36.70B.110(5)) and at least 15 days prior to any required open record public hearing for project permits [RCW 36.70B.110].
The notice of application must include the following information:
GMA counties and cities are required to use reasonable methods to distribute the NOA to the public and other agencies, and may use different types of notice for different types of permits. The notice requirements are similar to those required under SEPA and are specified by adopted agency ordinance or resolution. (See RCW 36.70B.110(4).)
SEPA steps at this stage of project review:
The determination of significance (DS/Scoping notice) is combined with the NOA if a GMA county or city is also lead agency under SEPA and has determined an EIS is needed at the time it issues the notice of application. The county or city may also issue the DS and scoping notice prior to issuing the notice of application [RCW 36.70B.110(1)], or they may wait to consider comments received on the NOA before making a threshold determination.
An ambiguity in the law makes it unclear whether a determination of nonsignificance can be issued with the notice of application. [The 1997 Legislature passed two bills amending RCW 36.70B.110 in relation to the timing of the threshold determination and the notice of application: 1) SSB 5462 allows the threshold determination to be issued with the notice of application with a combined comment period; and 2) ESB 6094 amended the same section, but still prohibits a determination of nonsignificance from being issued prior to the close of the comment period on the notice of application.]
Although Ecology recommends that agencies wait to issue a DNS until after the close of the comment period on the NOA, new legislation may be needed to resolve the conflict. In the meantime, when the GMA city or county is also the SEPA lead agency, they may choose to use the "optional DNS process" [WAC 197-11-355]. The optional DNS process, when used, uses the comment period for the NOA to obtain comments on environmental issues, eliminating the need to require a second comment period on the DNS when it is issued. (See Section 8.3 on the Optional DNS process.)
Once the public comment period on the notice of application ends, the agency will review the comments and complete the project review process, including environmental analysis. At the end of the review, a notice of final decision on the permit is issued [RCW 36.70B.090 -- scheduled to expire June 30, 2000, current legislation should be checked]. The county or city may include permit conditions in the notice of decision based on the development regulations or under the jurisdiction’s SEPA substantive authority. (See Using SEPA in Decision Making section.)
The notice of decision must be issued within 120 days of the determination of completeness. However, certain periods of time are excluded from the 120 days. The 120-day clock stops when:
The time limit does not apply if the proposed project:
The 120-day limit may also be extended by agency and proponent agreement.
As previously discussed, GMA counties and cities may not issue a DNS before the close of the public comment period on a notice of application (14 to 30 days) under RCW 36.70B.110(6) [RCW 36.70B.110]. Although a comment period is not always required on a DNS, when it is required, this restriction results in two separate public comment periods. For minor projects, the requirement for two comment periods causes delay with little or no benefit.
When the GMA city or county is the SEPA lead agency for a proposal and they have completed their environmental review at the time they will issue the NOA, they may choose to use the optional DNS process. It is appropriate to use the optional DNS process when the GMA county/city has enough information at the time it issues the NOA to be reasonably certain that there are no significant impacts associated with a project. The optional DNS process may also be used when mitigation measures have been identified that will reduce all impacts to a nonsignificant level.
This table shows a general overview of how local project review integrates permit and SEPA review processes when the GMA city or county is the SEPA lead agency for a project proposal and has completed environmental review at the time the notice of application (NOA) is to be issued
* If likely significant adverse impacts have been identified the lead agency may instead issue a DS/Scoping notice and proceed with the EIS process as shown in Table4.
With the optional DNS process, the agency solicits comments on environmental issues during the NOA comment period. Reviewing agencies and the public are warned that they may have only the one opportunity to comment on the proposal. Later, when the DNS is formally issued at the end of the NOA comment period, the lead agency is not required to provide a second comment period. The optional DNS process gives GMA counties and cities the flexibility to reduce duplication and delays when appropriate.
A GMA county or city should consider the following points before deciding to use the optional DNS process:
The county or city must state on the first page of the NOA that:
After the close of the comment period on the NOA, the agency reviews any comments on the environmental impacts of the project and decides whether to proceed with issuing a DNS. The choices at this point are:
The lead agency is required to circulate the DNS, if issued, to the Department of Ecology, agencies with jurisdiction, anyone who commented on the NOA, and anyone requesting a copy.
If the lead agency uses the optional DNS process, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application [WAC 197-11-355(3)]. (See Assumption of Lead Agency Status.)
GMA counties and cities often incorporate considerable environmental analysis and mitigation measures into the development of comprehensive plans and development regulations. In the past, review of proposed projects had been used to reopen land-use planning decisions made through the comprehensive planning process. The Local Project Review Act encourages GMA counties and cities to rely on applicable development regulations and/or comprehensive plan policies to analyze and address environmental impacts. Project review should not be used to reconsider planning decisions already made.
The Legislature intended that proposed projects continue to receive environmental review, but the review would be integrated with and not duplicate other local, state and federal requirements. Agencies should only require studies or use their SEPA substantive authority to condition a project’s impacts when the impacts cannot be adequately addressed by other regulations.
The Local Project Review Act requires GMA counties and cities to analyze the consistency of a proposed project with the applicable development regulations or, in the absence of applicable regulations, the adopted comprehensive plan. Conducting a consistency analysis and completing environmental review under SEPA involves asking many of the same questions and, thus, referring to many of the same studies and analyses [RCW 36.70B.030 and 040, and RCW 43.21C.240].
All local jurisdictions routinely review projects for consistency with applicable regulations. However, RCW 36.70B.040 requires that at minimum GMA counties and cities must consider four factors found in their development regulations, or in the absence of applicable development regulations the comprehensive plan:
This uniform approach is based upon existing project review practices and should not place an additional burden on applicants or local government. Consistency analysis is largely a matter of code checking for most projects that are simple or routine. More complex projects may require more analysis of these factors, including possible studies. (See CTED’s Consistency Rules for more information on consistency criteria and analysis)
Project review focuses on the project's compliance with the development regulations (e.g. critical area ordinances, building codes, street development standards). If the project is not consistent with the development regulations and comprehensive plan, the project can be conditioned to make it consistent, or denied [RCW 36.70B.030 and 040].
If the project is found to be consistent with the type of land use, the density of residential development in urban growth areas, and the availability and adequacy of public facilities [RCW 36.70B.030(3) and 36.70B.040(2)], the GMA county or city cannot reexamine alternatives to or hear appeals on these decisions. This limitation also applies to any subsequent reviewing body, such as the court. Once these planning decisions have been made, they cannot be reconsidered during project review. They can only be reconsidered in an amendment to the comprehensive plan and/or development regulations.
Please note, the factors that cannot be reconsidered during project review are more narrowly defined than the four factors considered in consistency analysis. For example, GMA cities and counties have not been precluded from reconsidering characteristics of development, or levels of development measures other than residential density within the urban growth area (e.g., residential density outside the urban growth area, or commercial building density in any area).
There are no requirements for the documenting of consistency, no set procedures for the consideration of consistency, and no restrictions to prevent an agency from requesting more information related to the four categories of consistency. Agencies are strongly encouraged, however, to begin analyzing a project for consistency early in the project review process and to provide some method to document that analysis, as they deem appropriate. The documentation then provides support for the final permit decision issued by the county or city.
The primary role of SEPA in GMA project review is to focus on those environmental impacts that have not been addressed by the GMA county’s or city’s development regulations and/or comprehensive plan, or other local, state and federal laws and regulations. SEPA substantive authority should only be used when a project’s environmental impacts cannot be adequately addressed by existing laws.
"Adequately addressed" is defined as having identified the impacts and avoided, otherwise mitigated, or designated as acceptable the impacts associated with certain levels of service, land use designations, development standards, or other land use planning decisions required or allowed under the GMA [RCW 43.21C.240(4)]. Examples include: [These examples are greatly simplified and are intended to be illustrative only and should not be applied to a more specific project application. The facts of an individual application and the applicable regulations will govern the outcome of any determination by the county or city.]
Once a determination has been made that an impact has been adequately addressed, the jurisdiction may not require additional mitigation for that particular impact under its SEPA substantive authority. However, the jurisdiction may find that its development regulations address some, but not all, of a project’s impacts.
In the grocery store example, the jurisdiction may still need to rely on SEPA substantive authority to address transportation site-specific impacts such as safety, on-site traffic circulation, and direct access to the site if the transportation element and development regulations only dealt with impacts to the transportation system.
In the wetland example, the critical areas ordinance may prohibit filling the wetland, but does not address the stormwater run-off impacts of the proposed development’s parking lot on the wetland’s water quality. SEPA substantive authority could be used to avoid or mitigate the stormwater impacts.
Integration of permit review and environmental review is intended to eliminate duplicative processes and requirements. Consistency analysis and environmental review involve many of the same studies and analyses. Thus, through the project review process:
For example, a proposed project has a wetland on site. The city’s critical areas ordinance requires that a wetlands study be done for the project so the city would not need to use its SEPA authority to require the study. Based upon the study, the city determines that stormwater runoff from the development will impact the wetland. However, the requirements of the critical areas or stormwater ordinance address the stormwater impacts by requiring that the developer reduce the amount of impervious surface and create a swale to filter runoff going into the wetland. Again, SEPA would not be required to address this impact. The city would only need to use its SEPA authority if there were other impacts to the wetland that were not addressed by the critical areas ordinance (or other laws).
All of the examples described above illustrate how good environmental analysis in the GMA planning process can streamline project review, but it will not eliminate the need for environmental review at the project level. Environmental review under SEPA at the plan and regulation level should address system-wide cumulative impacts and some site-specific impacts. However, some site-specific impacts can still only be addressed through SEPA at the project level. SEPA is the safety net for those impacts that cannot be easily anticipated in plans and regulations. SEPA also provides the flexibility to address those site-specific impacts that are better dealt with on a project-by-project basis.
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