wa-law.org > bill > 2023-24 > HB 2113 > Second Substitute
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Within six months after each comprehensive plan update due under RCW 36.70A.130, a county or city that is required or chooses to plan under RCW 36.70A.040 must submit any housing development regulations adopted or amended after the effective date of this section to the department for a determination of compliance with the laws and regulations identified in subsection (5) of this section. Where the department has previously issued a determination of compliance for a county's or city's housing development regulation, no further review or approval is required under this section except that any final action to amend, repeal, or replace the housing development regulation shall be subject to review and approval under this section. For the purposes of this section, "housing development regulations" means any development regulations related to the housing element requirements under RCW 36.70A.070(2) including, but not limited to, development regulations related to permanent supportive housing, emergency housing, emergency shelters, middle housing, and accessory dwelling units, and any zoning maps and zoning districts.
Housing development regulations adopted by a county or city subject to the requirements in this section do not take effect until the department issues a final decision determining that the housing development regulations comply with the laws and regulations identified in subsection (5) of this section.
The adoption of any housing development regulations by a county or city subject to the requirements in this section may not be appealed until the department issues a final decision on compliance. Any appeal of the department's final decision must comply with subsection (6) of this section. For any ordinance sent to the department for certification, the final decision for the purpose of RCW 36.70A.290 shall be the date the department publishes its final decision under this section.
Notice of intent to apply. (a) Not less than 120 days prior to applying for a determination of compliance, the county or city must notify the department in writing that it intends to apply.
The department shall promptly publish notice in the Washington State Register that a city or county has notified the department of its intent to apply for a determination of compliance, and the department shall post a copy of the notice on the department's website.
The department shall review the proposed housing development regulations prior to final adoption by the county or city and advise the county or city of the actions necessary to receive a determination of compliance.
The department may consult with other relevant state agencies in making its determination.
Application procedures. (a) After taking final action to adopt any housing development regulations, a city or county subject to the requirements in this section must apply for a determination of compliance. A city or county must submit its application to the department within 10 days of taking final action.
An application must include, at a minimum, the following:
A cover letter from the legislative authority requesting a determination of compliance;
A copy of the adopted ordinance or resolution taking the legislative action or actions required to adopt the housing development regulations;
A statement explaining how the adopted housing development regulations comply with the laws and regulations identified in subsection (5) of this section; and
A copy of the record developed by the city or county at any public meetings or public hearings at which action was taken on the housing development regulations.
For purposes of this subsection, "action" and "meeting" have the same definitions as in RCW 42.30.020.
Review procedures. (a) Within 180 days of the date of receipt of an application, the department shall strive to issue a final decision determining whether the housing development regulations comply with the laws and regulations identified in subsection (5) of this section.
The department must issue its final decision in the form of a written statement, including findings of fact and conclusions, and noting the date of the issuance of its decision. The department's issued decision must conspicuously and plainly state that it is the department's final decision.
The department shall promptly publish its final decision as follows:
Notify the city or county in writing of its decision;
Publish a notice of action in the Washington State Register;
Post a notice of its decision on the agency website; and
Notify other relevant state agencies regarding the decision.
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The department shall issue a determination of compliance unless it determines that the housing development regulations are not consistent with any of the following:
The housing planning goal set forth in RCW 36.70A.020(4);
The housing element requirements set forth in RCW 36.70A.070(2);
Any relevant rules adopted by the department;
Any relevant state environmental policy act requirements in chapter 43.21C RCW;
The county's or city's comprehensive plan, including the housing element; or
The department's final decision may be appealed according to the following provisions:
The department's final decision may be appealed to the growth management hearings board by filing a petition as provided in RCW 36.70A.290.
A decision of the growth management hearings board concerning an appeal of the department's final decision must be based solely on whether the housing development regulations comply with the laws and regulations identified in subsection (5) of this section.
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The department shall publish and regularly update a local government compliance list that includes, at minimum, the following information for each city or county subject to the requirements in this section:
Whether the city or county has applied for a determination of compliance and, if so, the date of the application; and
Whether the department has issued a final decision on compliance for the city or county and, if so, the nature of the decision, the date that the decision was issued, and the status or outcome of any appeals.
The local government compliance list may also include the following information:
Whether a city or county has submitted its housing element for approval under section 2 of this act and, if so, the date of the application; and
Whether the department has issued a final decision on the city's or county's application for housing element approval and, if so, the nature of the decision, the date that the decision was issued, and the status or outcome of any appeals.
The local government compliance list must be made publicly available on the department's website.
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A city or county subject to the requirements in this section may not deny an affordable or moderate-income housing development, or approve an affordable or moderate-income housing development with conditions or restrictions that have a substantial adverse impact on the viability of the development or the degree of affordability of the development, if the developer has agreed to enforceable restrictions committing to provide affordable or moderate-income housing development units for a minimum 50-year period, unless at least one of the following conditions is met:
The city or county has received a final decision from the department, the growth management hearings board, or a court of competent jurisdiction determining that the relevant housing development regulations cited in a denial comply with the laws and regulations identified in subsection (5) of this section by the deadlines in RCW 36.70A.130;
The denial of the affordable or moderate-income housing development, or the approval of the affordable or moderate-income housing development with conditions or restrictions that have a substantial adverse impact on the viability of the development or the degree of affordability of the development, is required in order to comply with specific state or federal law;
The affordable or moderate-income housing development or proposed development site is located outside an urban growth area, in a critical area, critical area buffer, or in an area where residential uses are not allowed by the applicable shoreline master program;
The affordable or moderate-income housing development or proposed development site is located in an area where neither the local jurisdiction's comprehensive plan nor zoning ordinance permits residential or mixed uses; or
The county or city has adopted an impact fee exemption for low-income housing as authorized by RCW 82.02.060 and the conditions for approval of the affordable or moderate-income housing development were adopted by ordinance prior to the date a complete application was submitted for land use or building permits for the affordable or moderate-income housing development.
For the purposes of this subsection, "affordable or moderate-income housing development" means a residential housing development where:
At least 20 percent of the units are for rental housing with monthly costs that do not exceed 30 percent of the monthly income of a household whose income is at 60 percent of the median household income adjusted for household size, for the county where the household is located, as reported by the United States department of housing and urban development;
At least 20 percent of the units are for owner-occupied housing with monthly costs that do not exceed 30 percent of the monthly income of a household whose income is at 80 percent of the median household income adjusted for household size, for the county where the household is located, as reported by the United States department of housing and urban development;
All of the units are for rental housing with monthly costs that do not exceed 30 percent of the monthly income of a household whose income is at 100 percent of the median household income adjusted for household size, for the county where the household is located, as reported by the United States department of housing and urban development; or
All of the units are for owner-occupied housing with monthly costs that do not exceed 30 percent of the monthly income of a household whose income is at 120 percent of the median household income adjusted for household size, for the county where the household is located, as reported by the United States department of housing and urban development.
The county or city must require enforceable restrictions to ensure the measures of affordability in (b) of this subsection are met for a minimum 50-year period. The county or city must periodically audit compliance with the restrictions, or provide another mechanism to ensure the units committed to affordable or moderate-income housing meet the measures in (b) of this subsection during the agreed term.
The department may adopt any rules necessary to implement this section.
A county or city required to complete a housing element under RCW 36.70A.070(2) may submit the housing element to the department for approval. When submitted to the department for approval, the housing element becomes effective when approved by the department as provided in this section. Where the department has previously approved a county's or city's housing element, no further review or approval is required under this section except that any final action to amend, repeal, or replace the housing element shall be subject to review and approval under this section.
Notice of intent to apply for approval. (a) Not less than 120 days prior to applying for approval of a housing element, the county or city must notify the department in writing that it intends to apply for approval.
The department may consult with other relevant state agencies in making its determination.
The department shall publish notice in the Washington State Register that a city or county has notified the department of its intent to apply for approval and the department shall post a copy of the notice on the department website.
Procedures for an application for approval. (a) After taking final action to adopt a housing element, a city or county may apply to the department for approval. A city or county must submit its application to the department within 10 days of taking final action.
An application for approval must include, at a minimum, the following:
A cover letter from the legislative authority requesting approval;
A copy of the adopted ordinance or resolution taking the legislative action or actions required to adopt the housing element;
A statement explaining how the adopted housing element complies with the provisions of this chapter; and
A copy of the record developed by the city or county at any public meetings or public hearings at which action was taken on the housing element.
For purposes of this subsection, "action" and "meeting" have the same definitions as in RCW 42.30.020.
Approval procedures. (a) The department shall strive to achieve final action to approve or deny an application within 180 days of the date of receipt of the application.
The department must issue its decision in the form of a written statement, including findings of fact and conclusions, and noting the date of the issuance of its decision. The department's issued decision must conspicuously and plainly state that it is the department's final decision and that there will be no further modifications to the proposed housing element.
The department must promptly publish its decision on the application for approval as follows:
Notify the city or county in writing of its determination;
Publish a notice of action in the Washington State Register;
Post a notice of its decision on the agency website; and
Notify other relevant state agencies regarding the approval decision.
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The department shall approve a housing element unless it determines that the housing element is not consistent with any of the following:
The housing planning goal set forth in RCW 36.70A.020(4);
The housing element requirements set forth in RCW 36.70A.070(2);
The requirements related to transitional housing, permanent supportive housing, emergency shelters, and emergency housing in RCW 35.21.683 and 35A.21.430;
Any relevant rules adopted by the department;
Any relevant state environmental policy act requirements in chapter 43.21C RCW; or
The department's final decision to approve or reject a housing element may be appealed according to the following provisions:
The department's final decision to approve or reject a housing element may be appealed to the growth management hearings board by filing a petition as provided in RCW 36.70A.290.
A decision of the growth management hearings board concerning an appeal of the department's final decision to approve or reject a housing element must be based solely on whether or not the housing element complies with the laws and regulations identified in subsection (5) of this section.
(1) The growth management hearings board shall hear and determine only those petitions alleging either:
All requests for review to the growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board. The board shall render written decisions articulating the basis for its holdings. The board shall not issue advisory opinions on issues not presented to the board in the statement of issues, as modified by any prehearing order.
All petitions relating to whether or not an adopted comprehensive plan, development regulation, or permanent amendment thereto, is in compliance with the goals and requirements of this chapter or chapter 90.58 or 43.21C RCW must be filed within sixty days after publication as provided in (a) through (d) of this subsection.
Except as provided in (c) and (d) of this subsection, the date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published.
Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
Except as provided in (c) and (d) of this subsection, for purposes of this section the date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
c. For local governments planning under RCW 36.70A.040, promptly after approval or disapproval of a local government's shoreline master program or amendment thereto by the department of ecology as provided in RCW 90.58.090, the department of ecology shall publish a notice that the shoreline master program or amendment thereto has been approved or disapproved. For purposes of this section, the date of publication for the adoption or amendment of a shoreline master program is the date the department of ecology publishes notice that the shoreline master program or amendment thereto has been approved or disapproved.
d. For purposes of this section, the date of publication for a housing element submitted to the department for approval under section 2 of this act is the date the department publishes its approval decision in the Washington State Register or on the department's website, whichever is later. The date of publication for any housing development regulations subject to the determination of compliance requirements in section 1 of this act is the date the department publishes its final decision determining compliance in the Washington State Register or on the department's website, whichever is later.
All petitions relating to whether the department's final decision on a housing element under section 1 of this act or any housing development regulations under section 2 of this act are clearly erroneous must be filed within 60 days after the department publishes its final decision in the Washington State Register or on the department's website, whichever is later.
Unless the board dismisses the petition as frivolous or finds that the person filing the petition lacks standing, or the parties have filed an agreement to have the case heard in superior court as provided in RCW 36.70A.295, the board shall, within ten days of receipt of the petition, set a time for hearing the matter.
The board shall base its decision on the record developed by the city, county, or the state and supplemented with additional evidence if the board determines that such additional evidence would be necessary or of substantial assistance to the board in reaching its decision.
The board, shall consolidate, when appropriate, all petitions involving the review of the same comprehensive plan or the same development regulation or regulations.
Except as provided in subsections (5) through (7) of this section, comprehensive plans and development regulations, and amendments thereto, adopted under this chapter are presumed valid upon adoption.
Except as otherwise provided in subsection (4) of this section, the burden is on the petitioner to demonstrate that any action taken by a state agency, county, or city under this chapter is not in compliance with the requirements of this chapter.
In any petition under this chapter, the board, after full consideration of the petition, shall determine whether there is compliance with the requirements of this chapter. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). The board shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter.
A county or city subject to a determination of invalidity made under RCW 36.70A.300 or 36.70A.302 has the burden of demonstrating that the ordinance or resolution it has enacted in response to the determination of invalidity will no longer substantially interfere with the fulfillment of the goals of this chapter under the standard in RCW 36.70A.302(1).
The shoreline element of a comprehensive plan and the applicable development regulations adopted by a county or city shall take effect as provided in chapter 90.58 RCW.
The greenhouse gas emissions reduction subelement required by RCW 36.70A.070 shall take effect as provided in RCW 36.70A.096.
The housing element required by RCW 36.70A.070(2) takes effect as provided in section 2(1) of this act. Any housing development regulations subject to the requirements in section 1 of this act take effect as provided in section 1(1) of this act.
(1)(a) Each comprehensive land use plan and development regulations shall be subject to continuing review and evaluation by the county or city that adopted them. Except as otherwise provided, a county or city shall take legislative action to review and, if needed, revise its comprehensive land use plan and development regulations to ensure the plan and regulations comply with the requirements of this chapter according to the deadlines in subsections (4) and (5) of this section.
(1) Adoption of ordinances, development regulations and amendments to such regulations, and other nonproject actions taken by a city to implement: The actions specified in section 2, chapter 246, Laws of 2022 unless the adoption of such ordinances, development regulations and amendments to such regulations, or other nonproject actions has a probable significant adverse impact on fish habitat; and the increased residential building capacity actions identified in RCW 36.70A.600(1), with the exception of the action specified in RCW 36.70A.600(1)(f), are not subject to administrative or judicial appeals under this chapter.
This act may be known and cited as the housing accountability act.
If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2024, in the omnibus appropriations act, this act is null and void.