A key premise of SB 5148 is that there is no accountability for local governments that are not following state law when they update their housing-related aspects of their comprehensive plans and development regulations under the Growth Management Act (GMA). Our system of government is based on division of power and checks and balances—the GMA is no exception.

Under existing law, cities and counties are required to submit their draft comprehensive plans and development regulations to the Department of Commerce (Commerce) 60 days prior to adoption. Under RCW 36. 70A.106, “the department may provide comments to the county or city on the proposed comprehensive plan, or proposed development regulations, during the public review process prior to adoption (emphasis added).” According to bill testimony by Commerce, sometimes the agency does and sometimes they don’t—cities  confirm this experience with the agency. It seems a simple solution is to direct the agency to comment on all submittals. The executive branch can do that.

For those that contend there is nothing that provides a check on cities that aren’t complying with state law, existing law also instructs Commerce, in its review under the statute above to do a compliance review. A city can ask for an expedited agency review when making changes to its plan or regulations, and “the department may grant expedited review if the department determines that expedited review does not compromise the state's ability to provide timely comments related to compliance with the goals and requirements of this chapter (emphasis added), ” It was the intent of the Legislature that the agency should be providing a compliance review. Those comments are public record.

For the cities that disregard comments relating to compliance, the Growth Management Hearings Board is the second level of checks and balances. And as stated in testimony and below, by both Commerce and AWC, less than 1% of plans and regulations are found to be noncompliant when challenged. SB 5148 is unnecessary.

If the House Housing Committee does want to advance the bill, AWC has requested to revert to the voluntary approval with audits approach that was reflected in the bill before the Senate floor amendment was adopted—which then required all cities to go through this new, additional process.

Date to remember

SB 5148 is scheduled for a vote in the House Housing Committee on Wednesday, March 26 at 4 pm.

The Housing Accountability Act advances

February 28, 2025

Dubbed the Housing Accountability Act, SB 5148 intends to ensure cities are complying with the Growth Management Act’s requirements for a housing element by having the Department of Commerce deem them legally valid before they go into effect. The original bill required cities to submit to this agency approval, but the amended version includes this an option available to cities unless certain criteria are not met.

The amended version that passed out of its fiscal committee also includes the following changes:

• Requires Commerce to meet the clearly erroneous standard if deciding a city’s Housing Element and development regulations do not comply with the GMA.
• Clarifies that a city or county shall not be required to submit their housing element/regulations as a condition of eligibility or prioritization of funds.
• For cities that choose the optional approval process, requires Commerce to defend a city’s housing element regulations if challenged to the Growth Management Hearings Board.
• Cities must submit to the approval process if, presumably all of (although it’s not clear), the following are true:
  (A) Has not planned for and accommodated for their portion of the countywide housing need determined by the county;
  (B) Housing production is less than 50 percent of the annual housing being produced within the county or regional council area, as applicable, adjusted by population; (AND?)
  (C) Housing production consists of greater than 80 percent single-family homes aimed at primarily households whose income is at or greater than 120 percent of the median household income adjusted
• Commerce then selects no more than 10 of those “noncompliant” jurisdictions to review and determine if they comply.

It’s worth pointing out that cities don’t control either (B) nor (C) in that list. For example, what option would a city have if builders wanted to build only market rate single-family homes in their jurisdiction? They couldn’t deny a valid application once production passed the 80% threshold.

Another state review of GMA housing elements is proposed

January 20, 2025

Companion bills, that assume cities are adopting Growth Management Act (GMA) housing elements that violate the law, would require the state Department of Commerce to make a legal determination of compliance. Unfortunately, as written this would actually delay the very housing policy updates the state has mandated cities adopt.

HB 1235, sponsored by Rep. Strom Peterson (D–Edmonds), and SB 5148, sponsored by Sen. Jessica Bateman (D–Olympia), would prevent housing development regulations and housing elements from being adopted until Commerce completes its review and makes a determination of legality. Setting aside the fact that Commerce does not employ attorneys, has recently misinterpreted state housing law, and already has the authority to review and comment on plan and development regulations under the GMA, this new process would delay housing development by delaying local plans and ordinances from going into effect.

Another challenging element of the proposal is the concept of having a state agency staffer, with no responsibility to participate in the community processes that generated policy approaches, to certify that one GMA element is compliant.  As we know the GMA is structured and intends a balancing of interests across a broad spectrum of community needs and goals – so evaluating one in isolation is problematic.

Overall, the bill adds an unnecessary bureaucratic process for what is shown to be almost a non-issue – less than 1% of local government plans and regulations are found to be noncompliant when challenged. The GMA presumes plans are valid once adopted and for good reason—civil servants, elected officials, and members of the public who participate in the process of developing comprehensive plans aim to follow the law.

Date to remember

HB 1235 will be heard in the House Housing Committee on Tuesday, January 21 at 4 pm.

SB 5148 will be heard in the Senate Housing Committee on Friday, January 24 at 10:30 am.