Alexanderson v. Board of Clark County
| Decision Date | 17 October 2006 |
| Docket Number | No. 33750-9-II.,33750-9-II. |
| Citation | 135 Wn. App. 541,144 P.3d 1219 |
| Court | Washington Court of Appeals |
| Parties | Alvin ALEXANDERSON; Dragonslayer, Inc.; and Michels Development, LLC, Appellants, v. BOARD OF CLARK COUNTY COMMISSIONERS, Clark County; and Western Washington Growth Management Hearings Board, Respondents. |
Patrick W. Ryan, Eric S. Merrifield, Perkins Coie LLP, Seattle, WA, for Appellants.
Richard Steven Lowry, Attorney at Law, Vancouver, WA, Martha Patricia Lantz, Offic. of Atty. Gen. Lic. & Admin. Law Div., Olympia, WA, for Respondents.
¶ 1 Alvin Alexanderson, et al. appeal the Growth Management Hearings Board's decision that the Board lacked subject matter jurisdiction over its petition. Alexanderson, et al. petitioned to the Board because they opposed Clark County's consent to a Memorandum of Understanding (MOU) agreement between the County and the Cowlitz Indian Tribe. The Board has subject matter jurisdiction over petitions concerning whether a comprehensive plan, development regulation, or an amendment to either violates the Growth Management Act (GMA). Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 178, 4 P.3d 123 (2000). Since the MOU acts as a de facto amendment to the County's comprehensive plan, we hold that the Board had jurisdiction to hear the petition. We reverse and remand to the Board.
¶ 2 In 2002, the Tribe applied to the Bureau of Indian Affairs at the United States Department of the Interior, requesting that the BIA hold approximately 151.87 acres of Clark County land (the subject land) in trust status for the Tribe. At the time of this appeal, the Tribe's application was still pending.
¶ 3 The subject land is designated on the County's comprehensive land use plan as agricultural and industrial urban reserve land and is zoned for a minimum lot size of 20 acres. If the Tribe's application is approved by the BIA, the Tribe has indicated it intends to use the subject land for commercial gaming purposes, which would be inconsistent with the current land use designation. In connection with the Tribe's application, the County wrote to the Bureau, explaining that if the Tribe used the proposed land for commercial development or any use other than agricultural use, the Tribe's development would present significant challenges for local governments.
¶ 4 In response to the Tribe's pending application for trust status, the Tribe and the County entered into a MOU, which stated:
The cornerstone of [the MOU] is that the County and the Tribe are entering into an enforceable Agreement to comprehensively mitigate impacts of this acquisition as developed, including, but not limited to: be consistent with attached county ordinances; mitigating environmental impact of its uses of trust land; paying development and other processing fees; be consistent with building and design standards set out in County ordinances; compensate the county law enforcement; prosecuting attorney, courts and schools and fire district; and others who provide public services on the Tribe's trust lands.
AR at 354 (emphasis added). If designated as trust land, the subject land would be held in trust for the benefit of the Tribe and would enjoy sovereign immunity from state regulations. Therefore, the MOU was the County's attempt to hold the Tribe accountable to certain state regulations.
¶ 5 The MOU outlined the process in which the County would provide services to the Tribe if the BIA approved the Tribe's application. Under the MOU, the County agreed to extend water supply through the existing Clark Public Utilities system to the subject land. The County and the Tribe also agreed that the subject land and any structures or uses of the land would be developed in a manner consistent with the county codes that applied at the time of development. Further, the Tribe agreed it would act in a manner consistent with certain applicable state laws and county ordinances. The parties agreed that the MOU was contingent on the BIA accepting the Tribe's trust application and would not become effective until the BIA approved it. The MOU stated:
This MOU is being executed as of the date shown hereon, but it is specifically agreed that this MOU shall not become effective and enforceable until the date on which the United States Secretary of the Interior accepts the Clark County Site in trust for the Cowlitz Indian Tribe. The acceptance of the Clark County Site into trust for the Tribe is an express condition precedent to this MOU becoming final.
AR at 362. All parties agree that the Tribe's projected use of the subject land would violate the comprehensive plan and the County's development regulations.
¶ 6 On March 2, 2004, the County Board of Commissioners approved the MOU, stating, however, that it did not intend to support the Tribe's trust application through its approval. It stated that:
[The Board of Commissioners] has concerns that the trust application, if federally-approved, would permit uses on this rural and resource land which otherwise would not be allowed under the County's comprehensive land use plan, would permit gaming, which is otherwise prohibited in unincorporated Clark County, and potentially adversely affect existing business.
¶ 7 Alvin Alexanderson is a resident of the County and resides on a five-acre parcel of land within sight of the subject land. When he acquired his home, he relied on the rural and agricultural character of the area as specified in the comprehensive plan and the zoning regulations. He understood that urban development and commercial uses of the subject land were not permitted under the comprehensive plan. Alexanderson opposed any use of the subject land that would be inconsistent with the current agricultural character of the land. He submitted written and oral comments to the County, stating his opposition to the Board of Commissioner's approval of the MOU and arguing that the Board of Commissioners should not approve the MOU.
¶ 8 Dragonslayer, Inc. and Michels Development, LLC are businesses operating in LaCenter, Washington, close to the subject land. They also submitted comments to the Board of Commissioners, stating their opposition to the approval of the MOU. They opposed the Tribe's proposed development because they believed it would cause decay and blight in LaCenter by taking customers away from local businesses.
¶ 9 On June 2, 2004, Alexanderson, Dragonslayer, and Michels filed a petition with the Board opposing the MOU. They argued that the County violated the environmental review and planning requirements of the GMA and the State Environmental Policy Act (SEPA) by entering into and approving the MOU, which authorized development on the subject land in violation of the County's comprehensive plan.
¶ 10 The Board dismissed the petition. It concluded that it lacked subject matter jurisdiction to hear the petition because it found that the MOU is not a development regulation, comprehensive plan, or an amendment to either. It reasoned that the MOU is an agreement between the parties outlining how the Tribe will work with the County if the subject land is placed in trust status.
¶ 11 Alexanderson et al. appealed the Board's decision to superior court, arguing that the Board erred in determining that it lacked subject matter jurisdiction over their petition. They also presented substantive arguments to the court, arguing that the Board of Commissioners and the County violated SEPA and the GMA, that the MOU was invalid and unenforceable, that the MOU was an unconstitutional expenditure of public funds, and that the MOU was an unlawful and ultra vires forfeiture of the County's police power.
¶ 12 The court affirmed. It agreed that the Board did not have subject matter jurisdiction to hear arguments concerning the MOU. It stated that, "The [MOU] neither amends the comprehensive plan or development regulations despite its conflict with provisions of those land use laws." CP at 1981 (emphasis added). The court noted that it was not reaching the merits of the substantive arguments raised by Alexanderson, et al. and stated that serious legal questions existed regarding whether the MOU is valid, whether the MOU authorized actions that violated the County's land use regulations, and whether the County and commissioner's approval of the MOU without an environmental review violated SEPA. The court also found that venue was improper and the parties stipulated to transferring venue for the remaining substantive claims.
¶ 13 In this appeal, Alexanderson, et al. appeals only the court's ruling that the Board did not have subject matter jurisdiction over the MOU.
¶ 14 We review Board decisions under the Administrative Procedure Act, which requires us to review the record created before the Board, not the record created before the superior court. Buechel v. Dep't of Ecology, 125 Wash.2d 196, 202, 884 P.2d 910 (1994). We review the Board's legal conclusions de novo, giving substantial weight to the Board's interpretation of the statute it administers. City of Redmond v. Central Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998). The burden of demonstrating the invalidity of the Board's action is on the party asserting invalidity; here, the burden is on Alexanderson, et al. RCW 34.05.570(1)(a).
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Table of Cases
...487 (1962): 19.2(12)(e) Alexander v. Muenscher, 7 Wn.2d 557, 110 P.2d 625 (1941): 11.2(3)(a) Alexanderson v. Bd. of Clark Cnty. Comm'rs, 135 Wn. App. 541, 144 P.3d 1219 (2006): 16.2(3)(a) Alger v. City of Mukilteo, 107 Wn.2d 541, 730 P.2d 1333 (1987): 17.4(2) Allen v. Acacia Park Cemetery A......
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Table of Cases
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§ 16.2 - Appeal Remedies Available
...effect of amending comprehensive plans or development regulations but were not so intended. Alexanderson v. Bd. of Clark Cnty. Comm'rs, 135 Wn. App. 541, 548-49, 144 P.3d 1219 The GMHB has jurisdiction to review the adoption or amendment of subarea zoning, because such actions are specifica......
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§ 13.4 - Initiating Review-Threshold Jurisdictional Issues
...the contract amounts to a de facto amendment to the jurisdiction's comprehensive plan. See Alexanderson v. Bd. of Clark Cnty. Comm'rs, 135 Wn.App. 541, 549-50, 144 P.3d 1219 (2006) (memorandum of understanding between Cowlitz Tribe and Clark County regarding tribe's development of property ......