"Essential public facility" label has kept light rail on track

A little-known provision of the state Growth Management Act probably saved Sound Transit's Seattle light-rail project from a serious — perhaps fatal — setback recently.

By a 6-1 vote, the Tukwila City Council last month approved the last major permits for the 14-mile line, which would end at a station in the South King County city. Joni Earl, Sound Transit's executive director, called it a huge win.

But three of the six council members who voted yes say they did so largely because they had no choice. Councilmen Jim Haggerton, Dennis Robertson and Joe Duffie say that, if they could have, they probably would have voted to deny the permits, either because they think the light-rail line goes to the wrong place or that it simply isn't a good idea.

What tied their hands? A section of the Growth Management Act governing what the law calls "essential public facilities."

It defines them as "those facilities that are typically difficult to site." While there's no all-inclusive list, they include airports, garbage dumps, jails and halfway houses — things that everyone agrees we need but that no one wants as a neighbor.

The law gives such facilities special protection, severely limiting local governments' power to say no to them.

On the first night Tukwila council members took up Sound Transit's permit applications, the city attorney told them that, because the project had been designated an essential public facility, they couldn't turn Sound Transit down or change the route the agency had selected through the city.

All they could do was impose reasonable conditions.

"There was nothing our council could do except make it more palatable," Haggerton said after the vote.

"It totally framed the decisions we had to make," Robertson agreed. "It probably appeared that I'm supporting something I'm not."

The light-rail line isn't the only high-profile project that has benefited from its status as an essential public facility. The law has helped Seattle-Tacoma International Airport's third runway and King County's proposed Brightwater sewage-treatment plant in Snohomish County overcome potential obstacles. It could help save Seattle's embattled monorail.


Seattle attorney Richard Ford, who chaired the state commission that paved the way for the Growth Management Act, says the essential-public-facilities language was drafted to counteract rampant NIMBYism — "Not In My Back Yard." For the most part, he says, it has worked just as its authors intended.

"Without it, we'd have complete gridlock," Ford says. He likens the provision to eminent domain, government's legal right to buy private property for public use, even if the owner doesn't want to sell.

But others wonder whether the balance has tilted too far. Poorer, less-powerful communities have been forced for years to swallow more than their fair share of projects no one else wants, says Seattle land-use lawyer Peter Eglick.

"The essential-public-facilities provision makes it even easier to shove it down their throats," he says. "It can be used as a tool to make the disadvantaged communities swallow that much faster."

When the Growth Management Act passed in 1990, planners in Washington and across the country were grappling with the "essential-public-facilities" problem. One professor dubbed them LULUs: "Locally Unwanted Land Uses."

Environmental laws had given opponents of such projects powerful new weapons. In King County, officials were reeling from political and legal flare-ups over where to put garbage incinerators and suburban jails. More big decisions loomed, including airport expansion.

NIMBYism threatened to paralyze regional decision-making, says Ford, who once supervised Sea-Tac Airport as executive director of the Port of Seattle. "We couldn't live with it. That's just the reality."

So the Growth Management Act required each city and county to establish a process for identifying and siting essential public facilities. More importantly, it said local officials couldn't adopt plans or regulations that precluded them.

That language has been interpreted broadly by regional growth-management hearings boards and courts over the past decade. They have ruled repeatedly that state or regional interests trump local or neighborhood objections.

The Central Puget Sound Growth Management Hearings Board has cited the law in overturning locally adopted restrictions on work-release centers in Tacoma, group homes in Bellevue and rail yards in Auburn.

Des Moines Mayor Bob Sheckler says board and court rulings that the third runway was an essential public facility helped frustrate neighboring cities' long struggle to stop the project, a fight they recently abandoned.

"The Legislature gave it a lot of deference just because it was an essential public facility," he says. "It gave the airport certain rights and ammunition that others didn't have."

A King County judge ruled in August that Seattle voters couldn't vote on an initiative to kill the proposed monorail, in part because the City Council had designated the project an essential public facility. While a higher court later placed the measure on the November ballot, it didn't address the underlying question. If courts later rule the monorail is indeed an essential public facility, the recall initiative's outcome could be moot.

Exceptions rare

Designating a project an essential public facility doesn't necessarily remove all obstacles. A judge ruled earlier this year, for instance, that San Juan County couldn't build a garbage-transfer station on farmland where such uses otherwise are prohibited by county law.

But such rulings have been rare.

If the Growth Management Act didn't include special protection for essential public facilities, "I think we'd be worse off," says Joe Tovar, who left the Central Puget Sound Growth Management Hearings Board earlier this year after 12 years.

"The decision-making would be like it was before: case by case, lawsuit by lawsuit, battles of attrition. You'd have even more political decision-making, deals being made outside the public planning process. ... "

But even some supporters worry that, while it may be easier to build needed facilities now, there's no mechanism in the law to assure that those projects will always be built in the right place, rather than the site that is cheapest or most politically expedient.

Nor, they add, is there any assurance that affected communities will be compensated fairly for their pain.

"They need to get some of the goodies along with the tough stuff," says Mary McCumber, former executive director of the Puget Sound Regional Council. "Right now, there's no rational way for determining where these things get sited and how they are mitigated."

A state commission that reviewed the Growth Management Act in 1998 suggested that a state board decide where some essential public facilities get built, and under what conditions. The Legislature hasn't acted on that recommendation.

Off the table

Tukwila's reluctant approval of Sound Transit's light-rail permits was preordained five years ago. The Central Puget Sound Growth Management Hearings Board all but ordered the city to do it in a ruling on a dispute between the city and the transit agency over what route the line should follow through Tukwila.

The project was an essential public facility, the board decreed in 1999: Once Sound Transit — a regional agency — settled on a route, Tukwila had an obligation to accept it.

That ruling helped Sound Transit secure $500 million in badly needed federal grants for the $2.4 billion line, even after a hostile Tukwila City Council rejected an agreement with the transit agency on permit-application processing two years ago.

Sound Transit convinced federal officials that Tukwila couldn't block the project, even if it wanted to.

In negotiating the permit conditions, Sound Transit did agree to provide some "goodies" to Tukwila, including a new firetruck. The City Council added more conditions that Sound Transit ultimately accepted.

"The law has done what the Legislature intended, which is getting people together to decide tough issues," says Ric Ilgenfritz, Sound Transit's communications director.

But Councilman Robertson, a light-rail opponent, says he was frustrated that the big questions weren't even on the table.

He says he can understand the need for something like the essential-public-facilities law. But South King County already hosts a disproportionate share of projects that benefit the region at the expense of neighborhoods, he contends.

Those neighborhoods have become less stable, Robertson says, creating more problems: "Somewhere along the line you have to look at the cumulative effect of what you're doing."

Eric Pryne: 206-464-2231 or epryne@seattletimes.com