Reported Decisions Involving the GMA Feb 2007–Jan 2008 LSI CLE:

1. Reported DecisionsInvolving the GMAFeb 2007–Jan 2008 LSI CLE: Land Use Planning in Southwest Washington February 11, 2008 Alan D. Copsey Assistant Attorney General

2. A couple of years ago, your county commissioners amended the comprehensive plan to expand the UGA around Central City. The amendment was challenged. The decision of the GMHB went up on appeal, and the Court of Appeals held the amendment did not comply with the GMA. However, the commissioners really want to expand that UGA. Although the population projections have not changed in the last several years, and even though there is plenty of land in the existing UGA to support projected population growth and urban development, they want to proceed with the amendment. They ask you whether the earlier adjudication of noncompliance bars them from adopting the same amendment again. What do you tell them?

3. Tell them you don’t know for sure. If the earlier noncompliance involved the same issue as presented here, the county commissioners might be barred from adopting the same ordinance again. In City of Arlington v. CPSGMHB, 138 Wn. App. 1, 154 P.3d 936 (Mar. 26, 2007), the Court of Appeals indicated its willingness to seek out differences between past decisions and new amendments. There also is a question as to whether the legal principles involved here – res judicata and collateral estoppel – even apply to local legislative decisions. The courts have not answered this question in a GMA context.

4. The GMA allows the expansion of UGAs if certain criteria are met. One criterion is that the new area to be included in a UGA must be adjacent to the existing UGA. A wealthy and influential property owner has submitted a proposal to expand the Central City UGA to include his property. Unfortunately for him, his property lies some distance from the existing UGA, so he has proposed a long and narrow UGA expansion that connects his property to the UGA. The proposed UGA expansion looks something like a balloon (his parcel) on a string (the narrow strip connecting his parcel to the existing UGA). The county commissioners ask you whether the proposal really is “adjacent” to the UGA. What is your answer?

5. Snohomish County faced a similar situation and adopted a proposed UGA expansion shaped like a kite on a string to connect the proponent’s parcel) to the existing UGA. The GMHB ruled that it was not “adjacent to land characterized by urban growth” within the meaning of RCW 36.70A.110(1), which says that a UGA “may include territory that is located outside of a city only if such territory already is characterized by urban growth . . . or is adjacent to territory already characterized by urban growth . . .”

6. Snohomish County faced a similar situation and adopted a proposed UGA expansion shaped like a kite on a string to connect the proponent’s parcel to the existing UGA. The GMHB ruled that it was not “adjacent to land characterized by urban growth” within the meaning of RCW 36.70A.110(1), which says that a UGA “may include territory that is located outside of a city only if such territory already is characterized by urban growth . . . or is adjacent to territory already characterized by urban growth . . .”

7. Snohomish County faced a similar situation and adopted a proposed UGA expansion shaped like a kite on a string to connect the proponent’s parcel to the existing UGA. The GMHB ruled that it was not “adjacent to land characterized by urban growth” within the meaning of RCW 36.70A.110(1), which says that a UGA “may include territory that is located outside of a city only if such territory already is characterized by urban growth . . . or is adjacent to territory already characterized by urban growth . . .” The Superior Court affirmed, but the Court of Appeals reversed in City of Arlington v. CPSGMHB, 138 Wn. App. 1, 154 P.3d 936 (Mar. 26, 2007), holding that land proposed for inclusion into a UGA is “adjacent” to the UGA if it “touches” the UGA.

8. The city council adopted amendments to its comprehensive plan. A citizens group filed a petition for review challenging the amendments. Even though representatives of the citizens group attended hearings and filed comments with the city council, a council member notices that no member of the citizens group lives in the city and asks you whether the citizens group really has standing to file the petition. What is your answer?

9. Today the answer is yes. RCW 36.70A.280(2) allows three avenues for a person to obtain standing to file a petition for review: (1) participation standing, (2) APA standing, and (3) certification by the Governor. APA standing requires that a person (1) has interests that must be considered by the city, (2) is injured or prejudiced by the city’s action, and (3) can obtain relief from the injury or prejudice if the person prevails. Participation standing requires that the person meaningfully participated in the city’s proceedings as to the issues raised in the petition. In Thurston Cy. v. WWGMHB, 137 Wn. App. 781, 154 P.3d 959 (Apr. 3, 2007), the Court of Appeals held a person asserting participation standing need not live within the jurisdiction.

10. The issue in the Thurston County case has morphed. Courts have held that most plaintiffs in civil actions must demonstrate something like APA standing – they must demonstrate a real case or controversy in which they have a cognizable interest. Thurston County now contends the doctrine of separation of powers prohibits the Legislature from overriding these holdings by granting standing to participants to obtain (or presumably respond to) judicial review. What result?

11. The Court of Appeals rejected this argument in Project for Informed Citizens v. Columbia Cy., 92 Wn. App. 290, 966 P.2d 338 (1998). The Court rejected the argument again in this case (Thurston Cy. v. WWGMHB, 137 Wn. App. 781, 154 P.3d 959 (Apr. 3, 2007)).

12. The county board of commissioners is preparing its next update of its comprehensive plan. Having surveyed the existing comprehensive plan, the board has determined there are some parts of its plan that it does not want to update. The board asks you whether it can simply update some portions of the comprehensive plan and ignore the rest until another time. What is your reply?

13. Tell them that a failure to review a portion of a comprehensive plan can be challenged in a failure-to-act claim. RCW 36.70A.130(1) requires that cities and counties take legislative action to “review and if necessary revise” their comprehensive plans and development regulations. The GMHBs have read this language to require that all portions of a comprehensive plan must be reviewed and that a failure to review some portion may be considered a violation of RCW 36.70A.130(1). This year two divisions of the Court of Appeals have affirmed this reading.

14. In Thurston Cy. V. WWGMHB, 137 Wn. App. 781, 154 P.3d 959 (Apr. 3, 2007), Div. II explained that the Legislature, by requiring review of comprehensive land use plans and development regulations every seven years, has decided that it is important to keep comprehensive plans and development regulations compliant with current law and responsive to changed conditions.

15. Div. I reached the same conclusion in Gold Star Resorts, Inc. v. Futurewise, 140 Wn. App. 378, 166 P.3d 748 (Aug. 27, 2007). The Court explained that RCW 36.70A.130 does not allow comprehensive plans and development regulations to lapse into noncompliance with the GMA over time through local inaction. A county or city need not revise every provision in its comprehensive plan and development regulations, but it needs to review them all to determine which ones need to be revised.

16. RCW 36.70A.070(5)(b) requires that the rural element of a comprehensive plan provide for a variety of rural densities. Your county contains an abundance of 5-acre zoning in the rural area, and not much else. A county commissioner observes that there are dedicated agricultural and forestry lands zoned at 40 and 80 acres and asks whether those lands can be counted toward a variety of rural densities. What do you say?

17. Probably not. In Thurston Cy. v. WWGMHB, 137 Wn. App. 781, 154 P.3d 959 (Apr. 3, 2007), Division II of the Court of Appeals held that designated natural resource lands do not count toward the “variety of rural densities.” The Court relied on the GMA’s definition of “rural development” which “refers to development outside the urban growth area and outside agricultural, forest, and mineral resource lands designated pursuant to RCW 36.70A.170.”

18. RCW 36.70A.215 imposes special requirements on the six most populous counties in Western Washington, which includes Clark County: deadlines by which these “buildable lands counties” and their cities must establish review and evaluation programs to determine whether they are achieving urban densities in their UGAs and identify “reasonable measures” other than adjusting their UGAs to correct any inconsistencies between planned and actual urban growth. Your county planning staff has completed its required buildable lands report, which finds inconsistencies between planned and actual urban growth. The county commissioners want to know whether they have to identify and implement “reasonable measures” now or if they can delay. What is your answer?

19. Better tell them not to delay. Kitsap County’s buildable lands report found inconsistencies between planned and actual urban growth. When the County did not respond by identifying “reasonable measures,” it was challenged in a petition to the GMHB, which ruled the failure to identify “reasonable measures” did not comply with RCW 36.70A.215(4) and ordered the County to adopt such measures and implement them by the deadline set in RCW 36.70A.215(4). The County responded by identifying provisions that were in effect at the time of the buildable lands report. It did not adopt any new provisions. The GMHB found the County was still out of compliance.

20. The Court of Appeals affirmed the GMHB. In Kitsap Cy. v. CPSGMHB, 138 Wn. App. 863, 158 P.3d 638 (May 30, 2007), the Court held that if there are inconsistencies between planned and actual urban growth, RCW 36.70A.215(4) requires the county to adopt and implement “reasonable measures” to remedy the inconsistency. It is not enough to simply list regulations in existence at the time an inconsistency exists. The Court reasoned that regulations that allowed the inconsistency probably would not resolve the inconsistency; therefore, they are not “reasonable measures” that are likely to increase consistency between planned and actual urban growth during the next five years, as required in RCW 36.70A.215(4).

21. Your county was supposed to adopt UGAs by 1999, but it was late doing so. Then, the UGAs were challenged, found out of compliance with the GMA, revised and ultimately approved by the GMHB in 2002. The planning commission is trying to set its agenda for reviewing and updating UGAs, and they wonder whether the 10-year update deadline in RCW 36.70A.130(3) starts to run from 1999 (the statutory deadline) or from 2002 (when the existing UGAs were adopted). What do you tell the commission?

22. You tell them they have until 2012. In Kitsap Cy. v. CPSGMHB, 138 Wn. App. 863, 158 P.3d 638 (May 30, 2007), the Court of Appeals held that the ten-year review and update of urban growth areas required in RCW 36.70A.130(3) is calculated from the time the UGA was designated in compliance with the GMA, not from the statutory deadline by which it was to have been designated.

23. The GMHB found the urban residential densities in your city’s development regulations to be noncompliant with the GMA. The GMHB explained how the adopted densities allowed urban sprawl to occur and cited two of its prior decisions in which it found similar densities to be noncompliant. A member of the city council remembers a case about vikings that told the GMHBs they could not establish bright line rules. The city council member thinks the GMHB acted contrary to the vikings case by relying on its prior decisions. What do you think?

24. In Viking Properties v. Holm, 155 Wn.2d 112, 118 P.2d 322 (2005), the Court did state that the GMHBs lack authority under the GMA to establish bright line rules. But in Gold Star Resorts, Inc. v. Futurewise, 140 Wn. App. 378, 166 P.3d 748 (Aug. 27, 2007), the Court of Appeals held that the Viking Properties decision does not the prevent the GMHBs from applying a consistent approach to similar circumstances. If the GMHB articulates specific reasons for disapproving of a particular residential density, presumably its decision is not susceptible to a challenge alleging inconsistency with Viking Properties.

25. The county is working to update its critical areas ordinance. A dispute has arisen over the nature of the requirement in RCW 36.70A.060 that the county must “protect” critical areas. One side argues that “protect” means to maintain the status quo. The other side argues that “protect” requires the enhancement of degraded buffers and critical areas to restore lost functions and values. Who’s right?

26. The Supreme Court may or may not be right, but it did answer this question in Swinomish Indian Tribal Community v. WWGMHB, 161 Wn.2d 415, 166 P.3d 1198 (Sept. 13, 2007). It held that the requirement to “protect” critical areas imposes a requirement to prevent further harm. The GMA allows counties and cities to enhance or restore critical areas, but it does not require them to do so.

27. Another dispute has arisen during the county’s critical areas update. One side argues that the GMA requires the use of mandatory buffers in which certain activities are prohibited. The other side argues that buffers are not required so long as the functions and values of the critical areas are protected. Who’s right?

28. The GMA does not require mandatory buffers. In Swinomish Indian Tribal Community v. WWGMHB, 161 Wn.2d 415, 166 P.3d 1198 (Sept. 13, 2007), the Court held that the GMA does not require the use of mandatory buffers to protect riparian critical areas where doing so would require farmers to replant areas that were lawfully cleared in the past.

29. But the Court reaffirmed that the GMA does require counties and cities to adopt regulations that actually protect critical areas. The GMA requires the adoption of development regulations that protect the functions and values of critical areas, and it requires that the best available science be substantively included when developing the protective regulations. As the Court stated: “[L]ocal governments must either be certain that their critical areas regulations will prevent harm or be prepared to recognize and respond effectively to any unforeseen harm that arises.”

30. Your city is working to update its shoreline master program. It’s taking longer than you anticipated because of some isolated but vigorous opposition to some proposed provisions. The city council already imposed two consecutive six-month moratoria on shoreline development and wants to know whether it can impose yet another six-month moratorium. What do you tell the council?

31. A resounding maybe. The City of Bainbridge Island was in this situation and imposed four consecutive moratoria while it attempted to complete its updated SMP. One of the landowners whose objections had led to delays in the update challenged the moratoria, claiming they were not authorized by the SMA. The City initially relied on RCW 36.70A.390 (in the GMA), then later modified its position to also rely on constitutional provisions.

32. The issue reached the Supreme Court in Biggers v. City of Bainbridge Island, 169 P.3d 14 (Oct. 11, 2007). Five members of the court held that cities and counties are authorized to impose reasonable moratoria under the general police power authority granted in article XI, section 11 of the Washington Constitution. A “reasonable” moratorium is consistent with statutory limitations on the moratorium authority (such as RCW 36.70A.390) and is as limited in time and scope as possible under the circumstances. Four members of the court found the city’s moratoria to be reasonable, but five members did not, and the city lost the appeal. Four members of the court would have held that cities and counties lack authority to impose any moratoria on shorelines.

33. So what do you tell the city council? A third or fourth adoption of the same—or nearly the same—moratorium probably is not reasonable under Biggers. The council would be well advised to (1) reduce the scope of the third moratorium as much as possible, (2) finish the update as soon as possible.

34. Your county adopted a provision that allows rural areas to be rezoned to smaller lots in limited circumstances. A developer has filed an application under the provision for a fairly large development, which the county approved. Adjacent property owners are alarmed, because they didn’t think the provision would allow such a development. They filed a LUPA petition alleging the approval allows urban development in the rural area in violation of the GMA. Can their challenge succeed?

35. In Woods v. Kittitas Cy., 2007 WL 4442396 (Dec. 20, 2007), the Supreme Court reaffirmed that a LUPA petition may not be used to challenge a land use permit’s compliance with the GMA. In reviewing a LUPA petition, a superior court may consider whether the permit approval complies with the comprehensive plan and development regulations, but it may not decide whether the permit complies with the GMA — or whether a comprehensive plan provision or development regulation complies with the GMA.

36. End