BD Lawson Partners, LP v. Cent. Puget Sound Growth Mgmt. Hearings Bd.

• Decision Date: 27 December 2011
• Docket Number: Nos. 67095–6–I,67094–8–I.,s. 67095–6–I
• Citation: 269 P.3d 300,165 Wash.App. 677
• Parties: BD LAWSON PARTNERS, LP and BD Village Partners, LP, Petitioners, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, Defendants,Toward Responsible Development, a Washington nonprofit corporation; Cynthia E. and William B. Wheeler; Robert M. Edelman; Peter Rimbos; Michael E. Irrgang; Judith Carrier; Eugene J. May; 1 Vicki Harp; Cindy Proctor; Estate of William C. Harp, Respondents,City of Black Diamond, Petitioner.BD Lawson Partners, LP and BD Village Partners, LP, Respondents, v. Central Puget Sound Growth Management Hearings Board, Defendants,Toward Responsible Development, a Washington nonprofit corporation; Cynthia E. and William B. Wheeler; Robert M. Edelman; Peter Rimbos; Michael E. Irrgang; Judith Carrier; Eugene J. May; Vicki Harp; Cindy Proctor; Estate of William C. Harp, Petitioners,City of Black Diamond, Respondent.
• Court: Washington Court of Appeals

165 Wash.App. 677

269 P.3d 300

BD LAWSON PARTNERS, LP and BD Village Partners, LP, Petitioners,

v.CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, Defendants,Toward Responsible Development, a Washington nonprofit corporation; Cynthia E. and William B. Wheeler; Robert M. Edelman; Peter Rimbos; Michael E. Irrgang; Judith Carrier; Eugene J. May; 1 Vicki Harp; Cindy Proctor; Estate of William C. Harp, Respondents,City of Black Diamond, Petitioner.BD Lawson Partners, LP and BD Village Partners, LP, Respondents,

v.Central Puget Sound Growth Management Hearings Board, Defendants,Toward Responsible Development, a Washington nonprofit corporation; Cynthia E. and William B. Wheeler; Robert M. Edelman; Peter Rimbos; Michael E. Irrgang; Judith Carrier; Eugene J. May; Vicki Harp; Cindy Proctor; Estate of William C. Harp, Petitioners,City of Black Diamond, Respondent.

Nos. 67095–6–I

67094–8–I.

Court of Appeals of Washington, Division 1.

Dec. 27, 2011.

Nancy Bainbridge Rogers, Andrew Sallas Lane, Randall P. Olsen, Cairncross & Hempelmann PS, Seattle, WA, for Petitioners BD Lawson Partners.

Bob C. Sterbank, Michael R. Kenyon, Kenyon Dissend PLLC, Issaquah, WA, for Petitioners City of Black Diamond.

David Alan Bricklin, Bricklin & Newman, LLP, Seattle, WA, for Judith Carrier, Robert M. Edelman, Estate of William C. Harp, Vicki Harp, Michael E. Irrgang, Cindy Proctor, Peter Rimbos, Toward Responsible Development, Cynthia Wheeler, William B. Wheeler.Marc Worthy, Office of the Attorney General, Seattle, WA, for Defendant Central Puget Sound Growth Management Hearings Board.APPELWICK, J.

[165 Wash.App. 680] ¶ 1 The Central Puget Sound Growth Management Hearings Board lacked jurisdiction to review the 2010 ordinances enacted by the City of Black Diamond approving the master plan development permits for Yarrow Bay. We reverse.

FACTS

¶ 2 In 2009, the City of Black Diamond (City) adopted a new comprehensive plan. City of Black Diamond, Wash. Ordinance no. 09–908 (2009) (BDO). That comprehensive plan included a Future Land Use Map, designating large areas of the City broadly for Master Planned Developments (MPDs) with an “MPD Overlay”. City of Black Diamond Comprehensive Plan fig.5–1, at 5–25 (June 2009), available at http:// www. ci. blackdiamond. wa. us/ Depts/ Comm Dev/ planning/ Final Plan_ 092209. pdf. The City also enacted development regulations in the form of a 2009 MPD ordinance codified in chapter 18.98 of the Black Diamond Municipal Code (BDMC). That ordinance served to “update the procedures, requirements, and standards relating to application for, approval of, and amendment to the conditions attached to [an MPD].” BDO no. 09–897. The ordinance created an MPD zoning district (BDMC 18.98.005), set the standards and the permit process for the review of future MPD permit applications (BDMC 18.98.060), and made generalized statements of policy (BDMC 18.98.010). See generally BDMC 18.98.005–.080. It broadly defined the allowable land uses in the MPDs: “MPDs shall include a mix of residential and nonresidential use. Residential uses shall include a variety of housing types and densities.” BDMC 18.98.120(A). The City also adopted chapter 18.08 BDMC, which set additional procedures for processing permits. These 2009 ordinances were not appealed to the Central Puget Sound Region Growth Management Hearings Board (Board) under the Growth Management Act (GMA), chapter 36.70A RCW.

¶ 3 BD Lawson Partners LP and BD Village Partners LP (collectively “Yarrow Bay”) sought approval from the City to build two MPDs. All of the land in these MPDs falls within the municipal boundaries of the City, and thus within the city's urban growth area. See RCW 36.70A.110(1). The City concluded that the two MPD permit applications met the standards previously established in 2009 by the amended comprehensive plan policies and by chapter 18.98 BDMC. On September 20, 2010, the Black Diamond City Council approved those MPD permits by ordinance. BCO no 10–946: BCO no. 10–947. Ordinance no. 10–946 approved the “Villages” MPD, an approximately 1,196–acre development with mixed residential and nonresidential uses. Ordinance no. 10–947 approved of the “Lawson Hills” MPD, a 371 acre development with a similar mix of uses.

¶ 4 A citizens group led by Toward Responsible Development (TRD) filed challenges to those 2010 MPD Approval Ordinances both in superior court under the Land Use Petition Act (LUPA), ch. 36.70C RCW, and with the Growth Management Hearings Board under the GMA. The LUPA case in superior court was stayed pending the GMA appeal.

[165 Wash.App. 682] ¶ 5 In proceedings before the Board, TRD argued that the MPD approval ordinances were not project specific permits but were development regulations, and thus the Board should have jurisdiction. Yarrow Bay and the City disputed this, arguing that the ordinances were project permits consistent with the City's comprehensive plan and development regulations.² BOTH SIDES FILED Dispositive motions on the issue of the board's jurisdiction and other matters. The Board issued its order on motions on February 15, 2011. The Board determined that the ordinances were subarea plans or development regulations, that it had jurisdiction over the MPD ordinances, and that the City's approval process did not properly follow its adopted public participation procedures for GMA amendments. It nevertheless found the continued validity of the ordinances did not represent a substantial interference with GMA goals, and therefore declined to enter a determination of invalidity. The Board then remanded Ordinance Nos. 10–946 and 10–947 back to the City with instructions to “take legislative action to achieve compliance with the GMA pursuant to this Order.”

¶ 6 On February 18, 2011, Yarrow Bay filed a petition for review of agency action in superior court appealing the Board's order on motions. TRD sought a certificate of appealability from the Board in order to obtain direct review in this court. The Board issued a certificate of appealability. The parties then brought a joint motion for direct review of Yarrow Bay's appeal of the Board's order on motions, and this court granted the motion.

STANDARD OF REVIEW

¶ 7 We review questions of statutory interpretation de novo. Woods v. Kittitas County, 162 Wash.2d 597, 607, 174 P.3d 25 (2007). A reviewing court's primary goal is to determine and give effect to the legislature's intent and purpose in creating the statute. Id. “ ‘[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ ” Id. (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 10–11, 43 P.3d 4 (2002)). We review the Board's legal conclusions de novo, giving substantial weight to the Board's interpretation of the statute it administers. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). This court reviews hearings board decisions under the Administrative Procedure Act, which places the burden of demonstrating the invalidity of agency action on the party asserting invalidity. RCW 34.05.570(1)(a); Feil v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wash.2d 367, 376, 259 P.3d 227 (2011). We grant relief from the Board's decision only upon a determination that one or more of the criteria in RCW 34.05.570(3)(a)-(i) are met. King County, 142 Wash.2d at 552–53, 14 P.3d 133.

DISCUSSION

¶ 8 Yarrow Bay argues the Board erred by asserting jurisdiction over the 2010 MPD approval ordinances. It contends that the Board's assumption of jurisdiction constituted an improper collateral attack on the City's 2009 comprehensive plan and development regulations. Because Yarrow Bay disputes the Board's jurisdiction, the relevant statutory basis for relief is:

(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law.

RCW 34.05.570(3).

¶ 9 The Board has exclusive jurisdiction to determine compliance with the GMA. Davidson Serles & Assoc. v. City of Kirkland, 159 Wash.App. 616, 625, 246 P.3d 822 (2011). The Board's jurisdiction is limited to deciding petitions challenging comprehensive plans, development regulations, or permanent amendments to comprehensive plans or development regulations. Woods, 162 Wash.2d at 609, 174 P.3d 25; RCW 36.70A.290(2). The Board does not have jurisdiction to decide challenges to project permit applications or site-specific land use decisions, because such decisions do not qualify as comprehensive plans or development regulations. RCW 36.70A.030 (7); RCW 36.70B.020(4); Woods, 162 Wash.2d at 610, 174 P.3d 25.

¶ 10 Comprehensive plans and development regulations form the foundation for subsequent project review. RCW 36.70B.030(1). Such plans and regulations determine: the density of residential development in urban growth areas; the type of land uses permitted at the site, including uses such as planned unit developments and conditional and special uses; and the availability and adequacy of public facilities, if the plan provided for funding of those facilities. RCW 36.70B.030(2)(a)-(c). “Comprehensive plan” is defined in the GMA:

“Comprehensive land use plan,” “comprehensive plan,” or “plan” means a generalized coordinated land use policy statement of the governing body of a county or city that is adopted pursuant to this chapter.

RCW 36.70A.030(4). The GMA also describes the mandatory elements of a comprehensive plan as inclusive of a future land use map, planning elements, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan. RCW 36.70A.070. Comprehensive plans serve as guides or blueprints to be used in making land use decisions. Woods, 162 Wash.2d at 613, 174 P.3d 25. And, the comprehensive plan may include the adoption of subarea plans that “clarify, supplement, or implement jurisdiction-wide comprehensive plan policies.” RCW 36.70A.130(2)(a)(i)...