Certificate Program Completed

I just completed a Certificate Program in Environmental Law and Regulation at the University of Washington. The program culminated in three nights of practicum project presentations in which teams of three or four students presented the projects they had been working on throughout the year. My group project looked at ways conservation land trusts and community land trusts could collborate to conserve open space while providing affordable housing. Our project paper and presentation – Conservation Land Trust/Community Land Trust – as well as other class projects can be found at http://courses.washington.edu/envlaw/fall. Click on “Practicum Projects Archives” on the left-hand side of the page.

The ABCs of CBAs

In Seattle recently, a major development project was cancelled due to economic factors. Dearborn Street Developers LLC had proposed redeveloping the 10.3-acre Goodwill site at Rainier and Dearborn in South Seattle into a mixed use project with shopping, restaurants, residential units, and a new store, headquarters and training center for Goodwill. While initially opposing the project because of its slant toward big box and national chain retail, the Deaborn Street Coalition for Livable Neighborhoods spent three years negotiating a Community Benefits Agreement (CBA) with the developer. While we were not as successful as we had hoped to be in changing the big-box character for the shopping area, we were able to negotiate some limitations on chain retail and business size, plus 200 units of affordable housing within the development, including 50 family units; $1.8 million to support small businesses and non-profits in Little Saigon; $200,000 for traffic mitigations to be prioritized by local neighborhoods; family-wage jobs for construction, grocery/drug, janitorial and security workers; and a commitment to hiring low-income residents from local training agencies.

The CBA is a legally enforceable contract, signed by community groups and the developer, setting forth the range of community benefits that the developer agrees to provide as part of the development project. CBAs have been used in such states as California, but the Dearborn Street (Goodwill) CBA was the first of its kind in Washington state. While the Goodwill redevelopment is not moving forward, the CBA still stands as a model for community stakeholders to negotiate improvements and amenities for their neighborhoods, good jobs, workforce- and family-priced housing, and other benefits.

For more information on CBAs, please contact me.

Land Conservation via TDR

Transfer of Development Rights (TDR) is a voluntary, incentive-based, market-driven approach to land preservation.

Washington’s Growth Management Act (GMA), RCW 36.70, provides general authority for local governments to adopt TDR programs. TDR helps meet the goal of the GMA to focus growth in urban areas and protect valuable resource lands from development.

How it generally works: A rural landowner or owner of property in a critical area sells his or her development rights to a private developer. A conservation easement is applied to the landowner’s property restricting only the right to develop it. The property remains in private ownership by the landowner for his use and enjoyment. The property may continue to be used as farm land, forest land, or open space. Meanwhile, the developer builds in a designated urban area and is able to a build larger or denser project than he would normally be allowed.

Many of Washington’s cities and counties have TDR programs. Seattle’s Downtown TDR Program, for example, is used by downtown commercial developers who want additional density. Eligible TDR sites include lots where affordable housing is preserved and those with landmark buildings or major open space. Developers and landowners may negotiate directly or the city can purchase TDR to hold in its TDR Bank for later resale. All such transactions require execution and recording of a TDR Agreement between the owner of the TDR site and the city. TDR Agreements include covenants that run with the land; housing, for example, must be affordable to households with incomes up to 50% of median for 50 years.

As mentioned above, TDR can be used to preserve landmarks in Downtown Seattle. Developers can purchase and transfer unused development rights from sites in most downtown zones occupied by a designated landmark structure. Use of Landmark TDR is further promoted by a requirement that a specified percentage of the floor area added to a project through TDR and bonus incentives must be gained through Landmark TDR if any such development rights are available in the City’s Landmark TDR bank.

In 2007, Governor Gregoire signed legislation authorizing the Washington State Department of Community, Trade, and Economic Development (CTED) to explore and make recommendations for a regional TDR marketplace covering King, Kitsap, Pierce, and Snohomish counties with a particular focus on conservation of rural, agricultural, and forest land. As of December 2008, CTED recommends a voluntary, incentive-based TDR program that is separate, but compatible, with existing, local TDR programs. CTED’s full report is available online at http://www.cted.wa.gov/DesktopModules/CTEDPublications/CTEDPublicationsView.aspx?tabID=0&ItemID=6714&MId=944&wversion=Staging

News on the Federal Front

Yesterday, the Obama administration announced that it would restore the Endangered Species Act rules that were weakened under President Bush. Interior Secretary Ken Salazar and Commerce Secretary Gary Locke said that they were reinstating the consultation provision under the ESA,  which requires federal agencies to consult with federal wildlife experts at the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration before taking any action that may affect threatened or endangered species.

Puget Sound orcas and salmon will continue to be endangered, however, by development in flood plains, which destroys the stream-side channels into which fish escape from floodwaters and increases the amount of pollution that drains into the streams and, ultimately, Puget Sound. The Federal Emergency Management Agency (FEMA) offered to adopt improved guidelines for building in floodplains, but local governments would not be required to follow them.

The Lowdown on Low Impact Development (LID)

Low Impact Development – or LID – is a stormwater management and land development strategy that emphasizes protection of the land’s natural state, relying on the soil and vegetation to reduce both the pollutants that go into stormwater and the amount of stormwater that reaches the surface.

LID is implemented through such Best Management Practices (BMPs) as reducing impervious (hard) surfaces, protecting natural drainage patterns, minimizing excavation foundations for structures, using vegetated swales to capture and retain runoff, using green roofs, and storing and reusing runoff.

LID as a stormwater management concept was first developed in the 1980s in Prince Georges County, Maryland. The county began working on rain gardens and published a LID technical manual. In Washington, the Puget Sound Action Team (PSAT) and the Washington State University Pierce County Extension published a manual for the use of LID in the Puget Sound area in 2005, with funding from the Department of Ecology. Ecology’s Stormwater Management Manual addresses LID strategies and techniques as well.

In 2008, the State of Washington’s Pollution Control Hearings Board (PCHB) in Puget Soundkeeper Alliance, et al v. Ecology, ordered Ecology to modify its Phase I Municipal Stormwater permit to require LID where feasible at the parcel and subdivision level and, at the basin and watershed level, to identify areas where potential basin planning would assist in reducing harmful impacts of stormwater discharges on aquatic resource. Phase I permits regulate discharges from large and medium Municipal Separate Storm Sewer Systems, which are the systems that convey stormwater, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, and storm drains.

The Puget Soundkeeper decision is the first step in LID’s evolution from a recommendation to a requirement.

Land Use Seminar

I’ve just spent the last two days at a Land Use in Washington seminar offered through the locally-based organization Law Seminars International. The audience consisted of lawyers and other land use/environmental professionals (realtors, appraisers, planners, agency staff, city/county employees) and the agenda was jam-packed with speakers from pretty much the same groups of people (but mostly lawyers).

Some of the topics were: surviving the down economy; land use planning and municipal water supplies; the integration of the Shoreline Management Act and the Growth Management Act; Low Impact Development; 2009 legislative session and key legal decisions updates; sustainable shoreline development; and the Federal Emergency Management Agency (FEMA)’s revised flood-plain mapping.

One of the most interesting segments was on climate change and land use regulations. Currently, said presenter Rod Brown of Cascadia Law Group in Seattle, climate change is not expressly addressed in any land use laws or regulations. The State Environmental Policy Act (SEPA) will likely incorporate greenhouse gas emissions evaluations into its checklists within the next two or three years, but better mechanisms would be amending the Growth Management Act (GMA) and the building codes (the command and control approach) and market-based cap and trade systems.

One example Mr. Brown gave of an upcoming issue is the replacement of the Alaskan Way Viaduct with a tunnel. The tunnel’s life expectancy would be 30 to 100 years. Climate change-driven sea level increases in Puget Sound are projected to be between three and 22 inches by the year 2050 and between six and 50 inches by 2100. If the tunnel’s design has motor vehicles descending into the tunnel, this could mean that by the time it’s built, sea water could be following the cars into the tunnel (as Rod put it). Something else to ponder: the planned seawall replacement along Seattle’s waterfront is expected to accommodate only an 11-inch rise in sea level.