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FEIL v. HEARINGS BOARD (AND OTHER STUFF)

FEIL v. HEARINGS BOARD (AND OTHER STUFF). LAND USE – LUPA AND GMA. Steven M. Clem Prosecuting Attorney Douglas County Courthouse Waterville, WA 98858 (509) 745-8535. The Rocky Reach Trail. Applicant: Washington State Parks and Recreation Commission 1997 – Planning Commenced

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FEIL v. HEARINGS BOARD (AND OTHER STUFF)

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  1. FEIL v. HEARINGS BOARD(AND OTHER STUFF) LAND USE – LUPA AND GMA Steven M. Clem Prosecuting Attorney Douglas County Courthouse Waterville, WA 98858 (509) 745-8535

  2. The Rocky Reach Trail • Applicant: • Washington State Parks and Recreation Commission • 1997 – Planning Commenced • 2003 – Application Filed • 5.1 Mile Extension of the Apple Capital Loop Trail • 10’ Pedestrian/Bicycle Trail Along Columbia River • From Odabashian Bridge to Rocky Reach Dam • On 200’ WSDOT Right of Way and PUD Property

  3. Challenges to Rocky Reach Trail: 2004 – LUPA Petition in Superior Court 2004 – Petition for Review to Shorelines Hearings Board 2005 – APA appeal of SHB in Superior Court 2005 – Appeal to Court of Appeals 2006 – LUPA Petition in Superior Court 2006 – Petition for Review to Growth Hearings Board 2007 – APA appeal of GHB in Superior Court 2008 – LUPA Petition in Superior Court 2008 – Petition for Review to Growth Hearings Board 2008 – APA appeal of GHB in Superior Court 2008 – Petition for Direct Review to Supreme Court 2009 – Appeal transferred to Court of Appeals 2010 – Petition for Review to Supreme Court

  4. Feil v. Hearings Board 172 Wn.2d 367 (August 18, 2011) 153 Wn.App. 394 (2009) Petitioners: Orchardists Feil and Tontz, and The Right to Farm Association of Baker Flats Respondents: Douglas County, Washington State Parks and Recreation Commission and Washington State Department of Transportation Amicus: Building Industry of Washington, Pacific Legal Foundation, Washington Farm Bureau and 15 county farm bureaus for Petitioners

  5. WHAT WAS APPEALED? The County issued a Recreational Overlay and a Site Development Permit authorizing construction of the Rocky Reach Trail. The Growth Hearings Board dismissed the Orchardists Petition for Review for lack of jurisdiction The Superior Court dismissed the LUPA Petition filed by the Orchardists, holding the permits complied with the County’s development regulations, and also affirmed the Growth Hearings Board decision

  6. HOLDINGS • The Growth Hearings Board did not have jurisdiction under the GMA to review the Recreational Overlay and Site Development Permit for the trail, as it was a site specific land use decision • County development regulations authorizing non-agricultural development in agricultural resource lands, if not timely challenged under the GMA, are not subject to later challenge for violation of the GMA or the Washington Constitution, Article XI, Section 11

  7. The comprehensive plan serves as a guide or blueprint used in making land use decisions. Development regulations and land use decisions are required to only generally conform, not strictly conform, to the comprehensive plan. • Comprehensive plans and development regulations, if not timely challenged, are the basis for land use planning within the county, even if they are inconsistent with the GMA

  8. The application of King County v. CPSGMHB (the Soccer Fields case) and Lewis County v. WWGMHB regarding conservation of agricultural resource lands is limited to timely GMA challenges before the Growth Hearings Board • Attorneys fees and costs may be awarded where the County has successfully defended appeal of a development permit decision before both the Superior Court and Court of Appeals

  9. JURISDICTIONAL LIMITATIONS • The Growth Hearings Board’s jurisdiction is limited to actions adopting or amending comprehensive plan and development regulations, and OFM population forecast challenges • The Growth Hearings Board does not have jurisdiction to hear review project permit applications: building permits, subdivisions, binding site plans, planned unit developments, conditional uses, shoreline permits, site plan review, and site-specific rezones

  10. JURISDICTIONAL LIMITATIONS • A LUPA Petition does not confer jurisdiction upon the Superior Court to review the comprehensive plan and/or development regulations upon which a project permit application is based for compliance with the GMA.

  11. PUBLIC PARTICIPATION UNDER GMA • Actively solicit agency and public comments, both for and against the proposed action • Maintain detailed records of public participation Why? Where credible evidence in the record is conflicting, the GHB will defer to a County’s decision accurately reflecting local circumstances Public Interest Groups – many PIG’s use studies and opinions not specific to the County that can be easily distinguished or deemed not relevant

  12. The Odd Case of Kittitas County v. Hearings Board 172 Wn.2d 144 (2011) The County’s subdivision regulations violate GMA • Why? • The GMA requires protection of quality and quantity of ground water • Additional GMA provisions – RCW 19.27.097 and RCW 58.17.110

  13. The Odd Case of Kittitas County v. Hearings Board 172 Wn.2d 144 (2011) • The County’s subdivision regulations did not require disclosure of abutting subdivision applications and common ownership • The County could approve a subdivision on the basis of permit-exempt wells (<5000 gallons per day) even though eligible

  14. The Odd Case of Kittitas County v. Hearings Board 172 Wn.2d 144 (2011) • The County tacitly allows applicants to contravene or evade well permitting requirements

  15. The Odd Case of Kittitas County v. Hearings Board 172 Wn.2d 144 (2011) The Supreme Court expressly ignored the role of Ecology and ignored the County’s ability to condition subdivision and building permit approval on other approvals – RCW 19.27.097 and RCW 58.17.110

  16. Questions?

  17. Steven M. Clem Prosecuting Attorney Douglas County Courthouse Waterville, WA 98858 (509) 745-8535 sclem@co.douglas.wa.us

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