City of Burien v. Central Puget Sound Growth Management Hearings Bd.

• Decision Date: 13 September 2002
• Docket Number: No. 27560-1-II.,27560-1-II.
• Citation: 53 P.3d 1028,113 Wash.App. 375
• Parties: The CITY OF BURIEN, a municipal corporation, The City of Des Moines, a municipal corporation, The City of Normandy Park, a municipal corporation, and The City of Tukwila, a municipal corporation, Appellants, v. The CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, an agency of the State of Washington, The City of Seatac, a municipal corporation, and The Port of Seattle, a municipal corporation, Respondents.
• Court: Washington Court of Appeals

53 P.3d 1028

113 Wash.App. 375

The CITY OF BURIEN, a municipal corporation, The City of Des Moines, a municipal corporation, The City of Normandy Park, a municipal corporation, and The City of Tukwila, a municipal corporation, Appellants, v. The CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, an agency of the State of Washington, The City of Seatac, a municipal corporation, and The Port of Seattle, a municipal corporation, Respondents.

No. 27560-1-II.

Court of Appeals of Washington, Division 2.

September 13, 2002.

Michael A. Kenyon, Issaquah, John Hempelmann, Seattle, Susan Sampson, Renton, Gary McLean, Puyallup, Janet Garrow, Bellevue, Robert Noe, Issaquah, for Appellants.

Sharon Eckholm, Olympia, Donald Cohen, John Washburn, Traci Goodwin, Seattle, Robert McAdams, Seatac, Linda Strout, Roger Pearce, Seattle, for Respondents.

QUINN-BRINTNALL, J.

The City of Burien appeals a Thurston County Superior Court judgment affirming a Central Puget Sound Growth Management Hearings Board (Board) decision upholding comprehensive plan and zoning amendments adopted by the City of SeaTac. SeaTac proposed the amendments in accordance with an interlocal agreement to settle litigation with the Port of Seattle. At issue is whether SeaTac circumvented the public participation requirements of the Growth Management Act (GMA) by entering into an interlocal agreement during negotiations that were not open to the public. The Board ruled that SeaTac complied with the GMA's public participation requirements, and Thurston County Superior Court affirmed. We likewise affirm.

FACTS

In an attempt to settle litigation over jurisdictional matters (among other issues) regarding plans for the proposed third runway at Sea Tac Airport, the City of SeaTac and the Port of Seattle entered into an "Agreement for Confidentiality In Settlement Negotiations" in October 1996. From time to time, counsel briefed SeaTac's City Council in executive session on the status of negotiations with the Port.¹

At its May 1997 public meeting, SeaTac's Planning Commission discussed proposed amendments to SeaTac's Comprehensive Plan (Plan). Attached to the minutes of that meeting was the Preliminary Docket for the Plan amendment, which stated that copies of the original applications for the Plan amendments were "available for public review on request." Administrative Record (Exhibits) at 2615. Burien submitted an application with the following proposed amendments: the preservation of Miller Creek, cooperation between SeaTac and Burien regarding Westside residential areas, development of a greenbelt plan with trails connecting the neighboring cities, and cooperation among neighboring cities regarding surface water and drainage planning.

The Commission again addressed Plan amendments at its June 16, 1997 Planning Commission meeting. According to the minutes, SeaTac's principal planner, Craig Ward, explained at the meeting that "some of the amendments have been deferred due to the City of SeaTac and the Port of Seattle negotiations. The deferred amendments would be reviewed if the conditions for deferral are satisfied in time for final docket consideration." Administrative Record (Exhibits) at 2700. The Burien planning commissioner who proposed the above amendments addressed the Commission, expressing her desire to have the amendments enacted.²

SeaTac and the Port entered into an Interlocal Agreement (ILA), on September 4, 1997.³ Four days later SeaTac's planning director briefed the Commission on the newly executed ILA:

Mr. Butler briefly explained to the Planning Commission that {sic} the City's and the Port's role to be able to successfully complete the ILA. The City needs to have their amendments to the comprehensive plan done by December 31, 1997, and the Port needs to implement their changes following the City.

The City and the Port need to adopt a coordinated land use map by December 31, 1997, and ... this map needs to ... 1) implement{ } ... the City's zoning map; 2){be} updated to recognize the Port's Master Plan of a third runway; 3) resolve{ } any discrepancies per uses of Port-owned property on the perimeter; and 4) reflect{ } the City land use decisions which will affect the airport.

Administrative Record (Exhibits) at 2747-48.

THE ILA

The ILA was executed by the Port and SeaTac, respectively, on August 29, 1997, and September 4, 1997, and went into effect on September 4, 1997. In pertinent part, the ILA reflects the parties' agreement to "adopt the planning, land use and zoning provisions set forth in Exhibit A hereto and shall implement the same." Administrative Record (Exhibits) at 3903.

The Land Use Agreement in Exhibit A provides for cooperative comprehensive planning and economic development in contemplating changes to the comprehensive plan:

1.1 General. The Port and City shall engage in cooperative comprehensive planning to jointly address issues related to the Port's Airport properties and activities and the City's economic development, land use and related goals. The cooperative planning shall strive for consistency between the City's Comprehensive Plan and the Port's Master Plan (and related portions of the Puget Sound Regional Council's regional planning decisions). The objective is the reciprocal recognition of the Port's Master Plan (and related portions of the Puget Sound Regional Council's regional planning decisions) in the City's Comprehensive Plan and the relevant portions of the City's Comprehensive Plan in the Port's Master Plan (e.g. land use, economic development, transportation and capital facilities). The coordinated comprehensive planning activities shall include:

1.1.1 Land Uses. A land use element with appropriate Comprehensive Plan policies and land-use designations for Port properties {and related properties}. The parties shall develop a land use map displaying the results of the coordinated planning. A noise-contour overlay map will be included to foster Airport compatible land-use planning and used to guide land-use decisions within the City. Existing Part 150 noise guidelines shall be incorporated into the policies.

. . . .

1.5 Adoption and Amendment.

1.5.1 Adoption.

1.5.1.1 General. The Port adopted its Master Plan update on August 1, 1996.... The third runway has been incorporated into the Metropolitan Transportation Plan adopted by the Puget Sound Regional Council. The City adopted its GMA Comprehensive Plan in December 1994....

The City Council and Port Commission respectively shall consider adoption of updates to the City Comprehensive Plan and the Port's Master Plan to implement the coordinated planning conducted under this ¶ 1. The Port and City may adopt appropriate portions of their coordinated planning without adoption of all elements listed under ¶ 1.1 above.

1.5.1.2 By City. On or before December 31, 1997, the City shall consider an amendment to its GMA Comprehensive Plan in substantially the following form...:

. . .

The City's Comprehensive Plan Use Map designates a single airport land use for all properties owned or to be owned by the Port under the Port Master Plan. The development regulations, which are contained in the attached Interlocal Agreement, have two zones ("Aviation Operations" and "Aviation Commercial") within the airport land use designation. Development of the Airport shall be done in accordance with the Interlocal Agreement and shall control in the case of any conflict with other provisions of this Comprehensive Plan. ...

Administrative Record (Exhibits) at 3909-10 (italicized emphasis added). The parties also agreed in Exhibit A of the ILA that each

shall adopt a coordinated land use map that (a) shall be implemented by the City's zoning map; (b) is updated to recognize the Port's Master Plan (e.g., third runway); (c) resolves any discrepancies on the permitted uses of Port-owned property on the perimeter of the Airport (e.g., Seafirst Bank, Bai Tong Restaurant); and (d) reflects the City land use decisions that affect the Airport. Both the City Council and the Port Commission shall adopt the coordinated land use map on or before December 31, 1997 (and the City shall adopt it concurrently with its Comprehensive Plan Amendment).

Administrative Record (Exhibits) at 3911 (emphasis added).

The Port committed to pay SeaTac $26 million dollars under the ILA's "community relief package."⁴

SeaTac enacted an ordinance (No. 97-1025) amending the Plan on December 9, 1997, and adopted zoning code and map amendments (Ordinance Nos. 98-1001 and 98-1002) on January 13, 1998.

PROCEDURAL HISTORY

Burien⁵ filed a petition for review of SeaTac's Plan and zoning amendments with the Board on February 11, 1998, arguing, among many other things, that SeaTac failed to comply with the GMA public participation requirements. Burien asked the Board to review (1) SeaTac's amendment to its Plan; (2) the ILA with the Port "which Agreement is an expressly referenced and integral component of the SeaTac Plan"; and (3) the January 13, 1998 amendments to the zoning code and map. Administrative Record at 1. The Board ruled that SeaTac complied with the GMA and upheld the amendments.

The Thurston County Superior Court affirmed the Board's decision. Burien appealed directly to our Supreme Court, which transferred the case to this court.

ANALYSIS

We review decisions of the Board under the Administrative Procedure Act (APA), chapter 34.05 RCW, which calls for a review of the record created before the Board—not the decision of 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 its interpretation of the statute it administers where the agency has specialized expertise in dealing with such issues. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998); Diehl v. Mason County, 94 Wash.App. 645, 652, 972 P.2d 543 (1999). The burden of...