Build Up, Not Out

​​A UGA is not supposed to be one big parking lot

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In the big picture, the BAR Holdings developers are pushing a false idea that has long been pushed by developers across the state. That is the idea that UGAs are supposed to be one big parking lot. Developers want people to think that UGAs are supposed to be completely covered over in development.

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Developers claim that back when UGAs were invented, nobody knew about critical areas. According to this false narrative, now that we know about all these areas that can't be built up to urban densities, we need to swap them out of the UGA so that that UGA capacity is maximized and nothing is wasted.

 

This is wrong for a couple reasons. First, critical areas were invented in 1970. UGAs were invented in 1990. So it's the opposite of what the developers are saying. When UGAs came on line, people already knew about wetlands and critical areas and those got included in UGAs from the get-go.

 

The buildable lands report is what that tells us how big to make a UGA. The buildable lands report doesn't count critical areas and other unbuildable areas as buildable. Instead, the size of the UGA is larger to accommodate these unbuildable lands.

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Here is the most important part. The statute that governs UGAs expressly states that UGAs must have greenbelts and open spaces: "Each urban growth area shall permit urban densities and shall include greenbelt and open space areas." See RCW 36.70A.110(2); WAC 365-196-310(2)(e).

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Every UGA swap must comply with the 2024 UGA swap law

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There are two UGA swap laws. One was passed in 2022 and the other was passed in 2024. They are very similar. The 2024 law has all the same requirement as the 2022 law plus more. The 2024 law added stronger protections for the environment, farmlands, and groundwater. (To see a comparison of the two swap laws, click here).

 

Unlike the 2022 UGA swap law, the 2024 UGA swap law says that a swap cannot happen if it would result in an increase in development capacity inside the UGA. The county’s hydrology report has found that the BAR Holdings swap would result in an increase in development capacity. In other words, the BAR Holdings swap would violate the 2024 swap law.

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Because of these problems with BAR Holdings’ proposed swap, developers know that the 2024 swap law is not their friend. And so their attorney simply wrote a policy that would allow them to evade the 2024 swap law (see page 2 here). Their attorney used legal hocus pocus to make it look like the 2024 swap law does not apply to all swaps in all years. She did this by using these three legal terms of art in a misleading way: “annual review,” “amendments,” and “updates.”

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To see through the scheme, one must understand what those three terms mean.

 

Comprehensive plan changes can be big changes or little changes. Big changes are analogous to passage of a budget. Little changes are analogous to passage of budget amendments. The big changes happen once a decade. Those are called “updates.” The little changes happen during the interim years and those are called “amendments.” Both are described in RCW 36.70A.130(2), which we’ll call “.130(2)” for short.

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There is a third term that means either one: “annual review.” It simply refers to the fact that on an annual basis, a jurisdiction is going to be considering changes to its comprehensive plan. Those changes could be the once-every-decade updates or they could be the amendments that happen annually during the interim years.  Whatever the change being considered, it is an “annual review.” The term “annual review” is also described in .130(2).

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But .130(2) should not be confused with .130(3), which is the subsection dealing solely with updates (i.e., the big changes that happen every ten years). And .130(3) is also the subsection where the 2022 swap law exists in statute. That is why the 2022 swap law applies only to swaps that happen during the update years that happen every ten years.

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In contrast, the 2024 swap law appears in a different statute altogether: RCW 36.70A.110(8), which we’ll call “.110(8)” for short. Notably, .110(8) cross-references .130(2), which, remember, is the section that describes all types of changes to a comprehensive plan (both updates and amendments) and that calls them generally “annual reviews.” This is why we know that the 2024 swap law applies to all swaps during all years—it is in the statute that applies to both updates and amendments.

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The final bill report for the 2024 swap law summarizes the 2024 swap law this way: a county may, as part of its "annual review" of "proposed" (1) amendments, (2) updates, or (3) revisions of its comprehensive plan, "review … the patterns of development…within each UGA," and do a swap if all requirements of the swap law are met.

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Unfortunately, the term “annual review” is vulnerable to being misconstrued. This is because the term “annual” makes one think of the amendments that happen every year during interim years. But there is no such thing as an “annual amendment.” Amendments to comprehensive plans are not truly annual because they do not happen every year: they skip the update years.

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Now that you hopefully understand the meaning of those terms, let’s look at how they were used by the attorney for BAR Holdings to mislead people. The consultant for BAR Holdings introduced the draft policy in a letter in August 2024. (Heather Burgess is the attorney for BAR Holdings, and she presumably wrote the consultant David Toyer's letter).

 

His letter claims that the 2024 swap law “established criteria by which UGA swaps could be considered during annual reviews of comprehensive plan amendments.” This phrasing is sleight of hand. There is no such thing as an “annual review of a comprehensive plan amendment.” Rather, there are annual reviews of the comprehensive plan. And these annual reviews can be big changes (i.e., updates) or little changes (i.e., amendments).

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Next, his letter states, “The criteria for swaps considered during an annual amendment cycle (in .110[8]) differ from those used for review of swaps proposed during periodic updates (in .130[3]) . . . .” (Emphasis added). This is another sleight of hand. There is no such thing as an “annual amendment cycle.” That’s a made-up phrase.

Recall that .110(8) pertains to any type of change to the comprehensive plan, whether it’s big changes (updates) or little changes (amendments), and either of those changes are generally called “annual reviews.”

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As you hopefully see now, his letter misleads the reader into believing that there are two tracks--two types of “situations,” i.e., swaps: ones that occur during comprehensive plan updates and ones that occur during comprehensive plan amendments. But there are not two tracks.

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It is true that the 2022 swap law applies solely to updates and not amendments. But the 2024 swap law applies to any type of swap during any year. And the 2024 swap law contains all the same provisions of the 2022 swap law plus two more that are intended to protect the environment: UGA groundwater protections and UGA greenspace protections.

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Thus, the more robust 2024 swap law subsumes the weaker 2022 swap law. In legalese this means the 2024 swap law “supersedes” the 2022 swap law. As such, we can simply ignore the 2022 swap law because it doesn’t add anything to the 2024 law. The more robust 2024 swap law has taken over and governs any swap during any year.

 

Now let’s assess the consultant’s (i.e., attorney's) actual proposed policy language—the language that is pretty much identical to the language that the Board of County Commissioners will consider at the public hearing on January 21st:

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• A UGA swap “considered during a periodic update . . .  must demonstrate consistency with the requirements of” .130(3), i.e., the 2022 swap law.

• A UGA swap “considered as part of the County’s annual review . . . must demonstrate consistency with the requirements of” .110(8), i.e., the 2024 swap law.

 

The problem with the first bullet point is that it is a half-truth. It is true that a swap during an update year must comply with the 2022 swap law. But it also must comply with the 2024 swap law. The first bullet point omits that part.

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The second bullet point, in isolation, is correct. A swap during the annual review (i.e., a swap during any year) must comply with the 2024 swap law. But when you combine the second bullet point with the first bullet point, and when you introduce it the way the consultant did in his letter, you mislead people into believing that “annual review” means solely “amendment” rather than any change during any year.

 

As the reader hopefully knows by now, “annual review” means any type of change to the comprehensive plan, both big changes and little changes. It’s an umbrella term.

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If the County Commissioners approve the developers’ proposed language and retain the first bullet point, it will open the door to illegal UGA swaps getting approved. That will only lead to litigation, not more housing being built. If commissioners want to see more housing being built, they need to put the county’s resources into proposals that aren’t built on a house of cards.​

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