New "Upfront SEPA" Law Provides A Voluntary Tool To Encourage Infill Development
The 2010 Washington State Legislature amended the State Environmental Policy Act (“SEPA”) to provide cities with a new voluntary tool to encourage urban infill development. This tool, or as many call it, “upfront SEPA,” encourages urban infill by providing greater regulatory certainty for infill development. The 2010 amendment bars administrative and judicial appeals of SEPA compliance for infill development when a city prepares a nonproject Environmental Impact Statement (“EIS”) that analyzes the environmental impacts of future infill development at the planning stage. This is the Legislature’s latest attempt to accommodate projected population growth in urban areas in order to avoid rural sprawl and the conversion of forest and agricultural resource lands.
Although SEPA already contained several provisions designed to facilitate infill development, the 2010 SEPA amendment, RCW 43.21C.420, improves upon the previous measures. Specifically, the amendment:
- Eliminates all SEPA-based appeals for infill development projects if: (1) the city completes a nonproject EIS for comprehensive or subarea plan policies and the development regulations designed to accommodate such infill development; (2) the infill development is consistent with these comprehensive or subarea plan policies and development regulations; and (3) an application sufficient to vest the project is submitted within a period specified by the city, not to exceed ten years.
- Explicitly authorizes cities to charge a late-comers fee to recoup the costs associated with preparing the nonproject EIS.
- Requires increased public notice to encourage early public participation in the planning and nonproject SEPA review processes.
Only cities meeting statutorily defined eligibility requirements may exercise the authority granted by the 2010 SEPA amendment. Eligibility extends to any city with a population over 5,000, located in counties governed by the Growth Management Act, that has a designated mixed-use or urban center subarea, or meets specified urban transit criteria. In Eastern Washington, different transit-oriented eligibility criteria apply to cities located outside of Spokane County.
If a city elects to invoke the 2010 amendment, the city is subject to several requirements:
- The city must establish comprehensive or subarea plan policies and development regulations that allow and encourage high density infill.
- The city must complete a nonproject EIS for the plan policies and development regulations that analyzes the environmental impacts of development consistent with the policies and regulations.
- The city must consider establishing a program for the transfer of development rights from county-designated agricultural and forest resource land to the area targeted for infill.
- The city must hold a public meeting before a scoping notice is issued for the nonproject EIS. Notice of the meeting and notice of the scoping must be mailed to all property owners within the subarea and other interested parties outside of the subarea.
The amendment is lengthy, containing numerous detailed provisions governing eligible cities, authority to recoup the nonproject EIS preparation costs, and immunity from SEPA-based appeals. Some of these provisions vary for local governments depending on population and region of the State. Nonetheless, the 2010 SEPA amendment provides cities with an effective voluntary tool to encourage urban infill development.
For additional information on the amendment, please contact Jeremy Eckert (eckej@foster.com; 206.447.6284) or Dick Settle (settr@foster.com; 206.447.8980).*
* Foster Pepper land use attorneys, Pat Schneider, Tayloe Washburn, Dick Settle, and Jeremy Eckert, were deeply involved in drafting the 2010 SEPA amendment (ESHB 2538, 2010; RCW 43.21C.420). The legislation was endorsed by the Climate Action Team, received unanimous approval from the State Senate, and nearly received unanimous approval in the State House.
