WA Court of Appeals Finds Policy in City’s Comprehensive Plan Regarding Commercial Uses in Industrial Areas Did Not Apply to Centers and Shelters

This post was authored by Matthew Loescher, Esq.

In 2018, the City of Puyallup adopted the 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 sites 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. 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 this case, the operator of the drop-in center filed petitions for review of two orders of growth management hearings board, which found that the city’s regulations restricting the sitting of day use centers and overnight shelters serving people experiencing homelessness complied with the city’s comprehensive growth management plan, and the GMA. The Superior Court, Pierce County, consolidated the two petitions and affirmed both the initial order and compliance order.

On appeal, Homeward Bound claimed the Board erroneously concluded that centers and shelters serving people experiencing homelessness were not essential public facilities. It further claimed the plain language of RCW 36.70A.200(1)(a) indicated that homeless centers and shelters could be considered essential public facilities because they were hard to site. Although the statutory list of essential public facilities was nonexclusive, the court found that in those circumstances, the Board did not have the authority to mandate that day use centers and overnight shelters be classified as essential public facilities. Even assuming day use centers and overnight shelters were classified as essential public facilities, however, Homeward Bound failed to show that PMC 20.72 precluded their site, as PMC 20.72 allowed day use centers and overnight shelters to be sited on almost 200 parcels on over 400 acres through conditional use permits.

The next court held that the Board did not err as a matter of law by giving weight to Puyallup’s intent to regulate a narrow set of facilities versus broadly prohibiting any institution involved in helping people experiencing homelessness. The record reflected that the Board’s conclusion was supported by evidence that would convince a reasonable person, and was not willful or unreasoning. Thus, the Board’s ruling was supported by substantial evidence and was not arbitrary and capricious. It was also clear from the record that the city council felt pressure from many angles in their decision-making and council members were seeking to craft a solution that would satisfy multiple competing community needs and concerns without running afoul of the GMA. The court therefore held that the Board did not err as a matter of law by finding in the compliance order that PMC 20.72 ultimately complied with the comprehensive plan policies regarding transit access.

Homeward Bound next contended that the Board’s compliance order improperly relied on the development agreement option in PMC 20.72 to which the Board had previously declined to afford weight. The court noted that the Board did not mention development agreements in the compliance order until the second-to-last paragraph of its analysis: stating that the development agreement option “potentially serves to increase the availability of sites.” While the option “in the absence of any centrally located areas in which shelter facilities were permitted outright” was insufficient, the court found that “the existence of this option … may offer an opportunity for additional sites.” The record reflected that the Board found PMC 20.72 in compliance based on the expanded availability of sites and only raised development agreements as a further positive consideration. As such, it was not an error of law for the Board to note that development agreements allowed for additional sitting opportunities beyond the conditional use permit sitting restrictions. The Board’s orders were therefore affirmed.

Homeward Bound v Central Puget Sound Growth Management Hearings Board, 2022 WL 4477915 (WA App. 9/27/2022)

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