Homeward Bound in Puyallup v. Cent. Puget Sound Growth Mgmt. Hearings Bd.

• Decision Date: 27 September 2022
• Docket Number: 55560-3-II
• Citation: 517 P.3d 1098
• Parties: HOMEWARD BOUND IN PUYALLUP, Appellant, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD ; and City of Puyallup, Respondents.
• Court: Washington Court of Appeals

517 P.3d 1098

HOMEWARD BOUND IN PUYALLUP, Appellant,

v.CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD ; and City of Puyallup, Respondents.

No. 55560-3-II

Court of Appeals of Washington, Division 2.

Filed September 27, 2022

John Charles Purbaugh, Northwest Justice Project, 715 Tacoma Ave., S., Tacoma, WA, 98402-2206, for Appellant.

Peter J. Eglick, Joshua Adam Whited, Eglick & Whited PLLC, 1000 2nd Ave., Ste. 3130, Seattle, WA, 98104-1046, Joseph N. Beck, Shawn Arthur, City of Puyallup, 333 S. Meridian, Puyallup, WA, 98371-5904, for Respondents.

William Theodore Lynn, Margaret Yvonne Archer, Attorney at Law, 1201 Pacific Ave., Ste. 2100, Tacoma, WA, 98402-4314, Reuben Schutz, Gordon Thomas Honeywell, 1201 Pacific Ave., Ste. 2100, Tacoma, WA, 98402-4314, for Amici Curiae on behalf of Tacoma-Pierce County Affordable Housing Consortium and The National Law Center On Homelessness & Poverty.

Lisa M. Petersen, WA. State Attorney General's Office (LAL), 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.

PUBLISHED OPINION

Glasgow, C.J.

¶ 1 In 2018, the city of Puyallup adopted Puyallup Municipal Ordinance (PMO) 3179, which established a new chapter of the Puyallup Municipal Code—chapter 20.72 (PMC 20.72). This new code chapter restricted the siting of day use centers and overnight shelters serving people experiencing homelessness within the City. The ordinance permitted such centers and shelters only in industrial zones in a small corner of the City that was distant from any services and had almost no access to transit. Siting anywhere else in the City required approval from a majority of Puyallup's city council.

¶ 2 Homeward Bound in Puyallup, which already operated one drop-in center, petitioned for review of the ordinance. Homeward Bound argued that PMC 20.72 was inconsistent with multiple policies in Puyallup's comprehensive growth management plan and violated several provisions of the Growth Management Act (GMA), chapter 36.70A RCW. In part, Homeward Bound asserted that PMC 20.72 violated the GMA's prohibition on development regulations that preclude the siting of essential public facilities.

¶ 3 The Central Puget Sound Growth Management Hearings Board ruled that the GMA did not require day use centers and overnight shelters serving people experiencing homelessness to be identified as essential public facilities under the GMA as a matter of law but that the City had discretion to do so. The Board ruled that PMC 20.72 did not substantially interfere with any GMA goal. But the Board ruled that PMC 20.72 was inconsistent with several comprehensive plan policies, and the City had to come into compliance with the plan.

¶ 4 In response, the City adopted a second ordinance, PMO 3195, to amend PMC 20.72, expanding the zoning districts where day use centers and overnight shelters could be sited to include areas with improved transit access. The Board then found the amended version of PMC 20.72 complied with the comprehensive plan.

¶ 5 Homeward Bound appeals both Board decisions. It argues that the Board erred in ruling that centers and shelters serving people experiencing homelessness are not essential public facilities under the GMA. It contends that PMC 20.72 improperly precludes the siting of such facilities. Homeward Bound also asserts the Board should have concluded that even after the amendments in PMO 3195, PMC 20.72 remained inconsistent with the comprehensive plan.

¶ 6 We affirm both of the Board's orders. We hold that the Board did not have authority to rule that centers and shelters serving people experiencing homelessness constitute essential public facilities as a matter of law when the facilities were not expressly included in the GMA's statutory list. But the City could conclude that such centers and shelters are essential public facilities after applying a process for identifying additional essential public facilities not expressly named in the GMA's statutory list. We also hold that the Board had no obligation to define "centers and shelters" as essential public facilities under the City's comprehensive plan when Homeward Bound argued solely under the statutory definition. And even if such centers and shelters constitute essential public facilities, PMC 20.72 does not preclude their siting. We further agree with the Board that the amendments to the municipal code adopted in PMO 3195 brought the municipal code into compliance with the comprehensive plan.

FACTS

¶ 7 Twenty-nine counties, including Pierce County, currently plan under the GMA, which means that the cities within those counties must also comply with the GMA. RCW 36.70A.040(2)(a). Among other requirements, any city planning under the GMA must "adopt a comprehensive plan under this chapter" as well as "development regulations that are consistent with and implement the comprehensive plan." RCW 36.70A.040(3)(d).

¶ 8 Under the GMA, counties and cities must include a process "for identifying and siting essential public facilities" in their comprehensive plans. RCW 36.70A.200(1)(a). And the GMA prohibits comprehensive plans and development regulations like the PMC from precluding the siting of essential public facilities. RCW 36.70A.200(5).

Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities ... regional transit authority facilities ... state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities.

Former RCW 36.70A.200(1) (2013) (emphasis added).¹ "[E]ssential public facilities may be large or small, many or few, and may be either capital projects (e.g., airports and prisons) or uses of land and existing structures (e.g., mental health facilities and group homes)." Childs. All. & Low Income Hous. Inst. v. City of Bellevue , No. 95-3-0011, 1995 WL 903168, at *6 (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. July 25, 1995). "The characteristic they share is that they are essential to the common good, but their local siting has traditionally been thwarted by exclusionary land use policies, regulations, or practices." Id.

¶ 9 Growth management hearings boards "have exclusive jurisdiction to review petitions alleging a [local government] did not comply with the GMA in adopting or amending its comprehensive plan or development regulations." Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. , 176 Wash. App. 555, 569, 309 P.3d 673 (2013) ; see also RCW 36.70A.280(1)(a). If a board finds that a city is not compliant with the GMA, "the board shall remand the matter" to the city and "shall specify a reasonable time" for the city to comply with the GMA. RCW 36.70A.300(3)(b). Once the time to comply has expired, the board shall set a hearing to determine whether the city has achieved compliance. RCW 36.70A.330(1).

A. The Initial Adoption of PMC 20.72 in PMO 3179

¶ 10 In March 2016, Puyallup imposed a 180-day moratorium on accepting, processing, or issuing any permits for "uses or activities associated with the operation of emergency shelters, drop-in centers, and any and all other similar land uses that provide social services to persons that are homeless." Clerk's Papers (CP) at 464; PMO 3109. It renewed the moratorium at least four times.

¶ 11 Then in October 2018, Puyallup adopted PMO 3179, which added a new chapter to the city's municipal code—PMC 20.72. The new chapter regulated day use centers and overnight shelters that provided services and single-night accommodations for people experiencing homelessness. Former PMC 20.72.020 (2018). The municipal code defined both facilities:

(1) "Daytime drop-in center" means a center which has a primary purpose of serving homeless individuals, whose clientele may spend time during day or evening hours, but with no overnight stays. Services may include counseling and/or medication monitoring on a formal or informal basis, personal hygiene supplies, facilities for showering, shaving, napping, laundering clothes, making necessary telephone calls and other basic supportive services. Centers may also provide meals or facilities for cooking.

(2) "Overnight shelter" means a facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter for the homeless in general or for specific populations of the homeless. Temporary shelter facilities associated with disaster relief are excluded from this use category. Homeless drop-in center services may also be provided on the same site during daytime hours.

Id. ; CP at 86-87. The ordinance enacted strict regulations on the siting and permit process for such facilities. It did not regulate longer-term transitional or permanent housing facilities. Former PMC 20.72.020(2).

¶ 12 Under the new code chapter, someone wishing to establish one of the regulated facilities had to seek out a conditional use permit or a development agreement. Former PMC 20.72.030(2) (2018). Facilities seeking a conditional use permit could be sited only in limited manufacturing districts. Former PMC 20.72.040 (2018). And buffer setbacks required that no portion of any facility could be "located within 1000 feet of a parcel containing" a list of "sensitive uses" that included noncollege schools, public parks and trails, public libraries, day care or preschool facilities, "[s]pecial needs senior housing," and "[a]ny residentially-zoned parcel." CP at 89; former PMC 20.72.050(2) (2018). As a result, less than 200 acres of land across 42 parcels was available for conditional use permit siting for day use centers and overnight shelters, almost all of it clustered in an industrial area in the northwest of the City, separated from the downtown core by the Puyallup River. Most of the available land had poor access to mass transit and was accessible only by major arterial roads that had few or no...