October 2021 Knowing the Waters- a Column by WPPA Counsel Frank Chmelik of Chmelik Sitkin & Davis, P.S
This month’s column takes a look at ports’ comprehensive schemes of harbor improvements (“CSHI”), what are they, how they are updated and how they are used. Some ports maintain fairly detailed comprehensive schemes and routinely update them each and every time the port embarks on a new project or enters into a lease with a new tenant. Others may vaguely recall that the comprehensive scheme was a general description of proposed future land uses which were last looked at several years ago and are now gathering dust in the corner of the bookshelf. With the new year approaching and new commissioners taking office, it may be helpful to plan on a review of the CSHI during the first few months of next year.
Port districts have been required to plan since 1911. The 1911 statute that created port districts required the development of a CSHI before any funds were expended on physical improvements which, at the time, were primarily harbor improvements – hence the name “comprehensive scheme of harbor improvements”. Port districts were one of the first, if not the first governments, with a statutory mandate to plan.
CSHI can be a single document or a collection of documents. The Washington Supreme Court has noted that a CSHI can be a single document or a series of documents (such as capital budgets, airport layout plans or marina master plans) so long as the compendium of documents fairly and fully informs the public. Some ports have several CSHIs, for example, one for the airport, another for the marina and a third for the business park.
CSHI is a commission document. It is important to note that the CSHI is the port commissions’ document and can be as general or as specific as the port commission deems appropriate. I recommend that port commissions review their comprehensive scheme(s) at least annually to ensure that it reflects the commission’s direction and desired level of detail. An annual review during the first part of the year (particularly when a new commissioner takes office) is a best practice. It can help focus the port commission on the bigger picture of the port’s strategic direction.
CSHI is not a “regulatory comp plan”. Since the 1970s there has been a steady increase in statutorily mandated regulatory planning by local governments with regulatory land use authority - most notably the Growth Management Act. These “regulatory comp plans”, “subarea plans” “urban growth plans” and the like are typically detailed and specific plans for growth or development and may include elements such as traffic, storm water, housing, transportation, view corridors and parks. Cities and counties use these as a basis of reviewing land use permits. Care should be taken to differentiate between the ports’ CSHI and the now common public understanding of a detailed regulatory “comp plans” by letting the public know that the CSHI is not a regulatory document.
CSHI is not a “strategic plan”. A CSHI typically lacks the financial analysis, or the business plans seen in the strategic plans. Usually, strategic plans can and do build upon CSHI by developing the financial elements necessary to implement the vision in a port’s CSHI. Although not required by statute, port commissions can certainly elect to incorporate more detailed business or financial planning components into their CSHI (usually as an appendix).
A CSHI must fairly and fully inform the public. The port’s CSHI must “fairly and fully” inform the public of the “nature and extent” of the proposed improvements within the port district. While there is no template or standard, ports typically provide a document with (i) a series of maps of port properties which identifies the inventory of port property, (ii) the proposed use or types of uses for each port property or area and (iii) a discussion concerning how and when the port intends to implement these ideas in the CSHI.
SEPA non-project review of a CSHI. WAC 197-11-704 defines “non-project” actions very broadly. While this issue has never been tested, it is prudent to conduct a non-project SEPA review before adopting or amending a CSHI.
Adopting capital budgets and amending the CSHI. Most ports adopt a capital budget each year as part of the chapter 53.35 RCW mandated port budget process. These capital budgets typically detail specific projects that will be built during the next calendar year. A best practice is to formally amend the CSHI to reference the capital budget each year. The notice and public hearing provisions for port budget adoption in RCW 53.35.020 and RCW 53.35.030 are almost identical with the notice and public hearing provisions for amending a CSHI in RCW 53.20.010. In fact, the required public notice can address both the budget adoption and the CSHI amendment. For example, a CSHI can be amended to include “all capital projects as contained in the 2022 Capital Budget.” By routinely amending the CSHI to include the projects in the capital budget, a port (i) ensures that the commission reviews the comprehensive scheme(s) annually, (ii) ensures that all capital projects are consistent with the previously adopted comprehensive scheme(s) and (iii) prevents a potential legal challenge to a capital project based upon inconsistency with the port’s CSHI.
The bottom line is that a CSHI is a “living” document or collection of documents that “fairly and fully” inform the public of the “nature and extent” of the proposed improvements within the port district. An annual review of the CSHI will help focus the commission on the strategic direction of the port. It is a best practice to amend the CSHI annually with the adoption of the capital budget to include reference to the capital budget.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters, please email me at fchmelik@chmelik.com.