Clallam County v. Dry Creek Coal.

• Decision Date: 20 April 2011
• Docket Number: No. 39601–7–II.,39601–7–II.
• Citation: 255 P.3d 709,161 Wash.App. 366
• Court: Washington Court of Appeals
• Parties: CLALLAM COUNTY, a political subdivision of the State of Washington, Respondent,v.DRY CREEK COALITION, a Washington nonprofit corporation; and Futurewise, a Washington nonprofit corporation, Appellants,Western Washington Growth Management Hearings Board, an administrative agency, Respondent.

161 Wash.App. 366

255 P.3d 709

CLALLAM COUNTY, a political subdivision of the State of Washington, Respondent,

v.DRY CREEK COALITION, a Washington nonprofit corporation; and Futurewise, a Washington nonprofit corporation, Appellants,Western Washington Growth Management Hearings Board, an administrative agency, Respondent.

No. 39601–7–II.

Court of Appeals of Washington, Division 2.

April 20, 2011.

Tim Trohimovich, Futurewise, Seattle, WA, Gerald Barclay Steel, Attorney at Law, Olympia, WA, Robert A. Beattey, Spencer Law Firm, LLC, Tacoma, WA, for Appellant.Douglas Emry Jensen, Clallam Co. Prosecuting Attorney–Civil, Port Angeles, WA, for Respondent.

Marc Worthy, Office of the Attorney General, Seattle, WA, for Other Parties.QUINN–BRINTNALL, J.

[161 Wash.App. 372] ¶ 1 In 2007, after completing a required Growth Management Act ¹ (GMA) review, Clallam County (County) adopted Resolution No. 77 providing that its Comprehensive Plan (Plan) and Urban Growth Areas (UGA) remained compliant with the GMA and needed no amendments. Futurewise appealed to the Western Washington Growth Management Hearings Board (Growth Board). ² Futurewise claimed that the County failed to review and revise parts of its Plan and UGAs that were noncompliant with the GMA in Resolution No. 77. Specifically, Futurewise challenged the adequacy of the nonmunicipal Carlsborg UGA's capital facilities plan and the use of two zoning density designations in rural areas.

¶ 2 The Growth Board ruled that the Carlsborg UGA's capital facilities plan did not comply with the GMA, in part because it failed to adequately plan for sewer services. The Growth Board also invalidated the use of two rural housing density zoning designations, Rural Moderate (R2) and Western Region Rural Moderate (RW2), because they established nonrural housing densities on rural lands. The County appealed to the Clallam County Superior Court, which reversed the Growth Board's decisions, ruling that the Growth Board (1) did not have jurisdiction to review the capital facilities plan's compliance with the GMA and (2) failed to identify a clear error that the County made when it established the R2 and RW2 housing density zoning designations. Futurewise appealed the superior court's decision to this court.

[161 Wash.App. 373] ¶ 3 We remand to the Growth Board for a factual determination on whether the State provided funding for a relevant GMA amendment,³ which would make the amendment enforceable. Enforceability of this GMA amendment is a condition precedent to establishing the Growth Board's jurisdiction to review the County's unamended capital facilities plan. In addition, we decline the parties' invitation to issue an advisory opinion on the use of the R2 and RW2 housing density zoning designations.

FACTS

¶ 4 The County originally adopted a Plan in 1967, but it created a new Plan in 1995, following the enactment of the GMA.⁴ The GMA requires that a county review its Plan at least every seven years, under former RCW 36.70A.130(4) (2006), and review its UGA designations every ten years, under RCW 36.70A.130(3)(a).⁵ The County began its first GMA–required Plan review in 2004, and simultaneously began a review of its UGA designations. Former RCW 36.70A.130(4)(a).

¶ 5 On August 28, 2007, the County enacted a resolution and ordinance after completing its GMA reviews. Ordinance No. 827 amended the Clallam County Code (CCC) by adding a section identifying limited areas of more intensive rural development (LAMIRDs). The County also adopted Resolution No. 77, “Affirming That Clallam County Has Reviewed and Updated Its Countywide Comprehensive Plan, Regional Plans, and Development Regulations to Ensure Continued Compliance With Growth Management Act Standards and Policies.” Administrative Record (AR) at 13. Resolution No. 77 did not amend the County's Plan, UGAs, or development regulations; instead, the resolution stated that the County had completed its required reviews and deemed the Plan and UGAs to be in compliance with the GMA.

¶ 6 Futurewise appealed Ordinance No. 827 and Resolution No. 77 to the Growth Board.⁶ Futurewise assigned eight errors to the County's ordinance and resolution, three of which are relevant to this appeal. First, Futurewise alleged that the County (1) failed to review and revise the capital facilities plan for the Carlsborg UGA to ensure that adequate services are available; and (2) erred when it enacted CCC 33.20, which outlines the zoning codes for the Carlsborg UGA, improperly allowing for urban land uses before the creation of a sewer system.⁷ Futurewise emphasized concerns about the adequacy of sewer services, storm water facilities, parks, and police services in the Carlsborg capital facilities plan. Second, Futurewise challenged the total amount of land contained within the County's UGAs as too large in light of the most recent Office of Financial Management (OFM) population forecasts for the County.⁸ Third, Futurewise claimed that the County failed to review and revise several rural housing densities in its Plan, specific to this appeal are the R2 and RW2 densities that allow for one dwelling unit per 2.4 acres, to ensure that urban growth does not occur outside of UGAs and LAMIRDs.⁹

¶ 7 On April 23, 2008, the Growth Board issued its final order and decision. Reviewing Futurewise's adequacy of services and capital facilities plan challenges to the Carlsborg UGA, the Growth Board found some portions compliant with the GMA and some noncompliant. The Growth Board found that the County had preliminary plans to provide necessary sewer services to the Carlsborg UGA, but that it could not currently supply sewer services to support urban densities in the UGA. Accordingly, the Growth Board found CCC 33.20 noncompliant with the GMA because it permitted urban uses of land before the creation of sewer services. In addition, the Growth Board concluded that the County's failure to adopt a sewer plan for the UGA “causes the Carlsborg UGA to substantially interfere with [former] RCW 36.70A.070(1), (2), and (12) [ (2005) ].” ¹⁰ Clerk's Papers (CP) at 115. For police services, the Growth Board found that the County identified in the capital facilities plan that police coverage for the UGA is “below [level of service] standards,” but that the County failed to identify the necessary services to ensure adequate coverage or how to provide necessary funding. CP at 110. Accordingly, the Growth Board determined that the County's capital facilities plan for Carlsborg's police services was noncompliant with former RCW 36. 70A.070(3)(b)-(d)'s requirements.¹¹ The Growth Board also concluded that Futurewise failed to meet its burden in challenging the adequacy of storm water and park facilities in the Carlsborg UGA's capital facilities plan.

¶ 8 Regarding the overall amount of land contained in the County's UGAs, the Growth Board determined that it had jurisdiction to consider Futurewise's challenge and deemed the UGA boundaries valid. The County asserted that because it had not amended any of the UGAs as part of its recent review, Futurewise's challenges to the 1995 and 2000 UGA designations were time barred. The Growth Board determined that a county is required to revise its UGA designations when OFM population projections change. RCW 36.70A.130(3)(b) (UGAs “shall be revised to accommodate the urban growth projected to occur in the county for the succeeding twenty-year period.”). Accordingly, the Growth Board ruled that Futurewise's challenge was not time barred because it challenged the County's failure to revise the UGA boundaries after OFM population projection changes. But after deciding that it had jurisdiction to consider whether the County's UGAs encompass too much land, the two-member Growth Board could not reach an agreement on the merits of Futurewise's UGA boundary challenge. Accordingly, the Growth Board ruled that the UGA boundaries complied with the GMA because County GMA planning decisions are presumed valid on appeal and Futurewise failed to meet its burden to prove otherwise. See former RCW 36.70A.320(1) (1997).

¶ 9 Regarding the use of the R2 and RW2 housing density zoning designations, the Growth Board invalidated the use of the R2 and RW2 housing density zoning designations in rural areas and any Plan policies, regulations, and maps that use these housing densities. The Growth Board found that the existing rural character of the County is “dominated by lots of greater than five acres” and that the existing land patterns support a finding that “ the rural character of Clallam County is a rural density of 1 [dwelling unit per] 5 acre[s].” CP at 109. The Growth Board concluded that the R2 and RW2 housing densities violated former RCW 36.70A.110 (2004) and that they substantially interfere with the GMA goals of encouraging urban growth in areas “where adequate public facilities and services exist or can be provided” and reducing urban sprawl. RCW 36.70A.020(1), (2).

¶ 10 On July 8, 2008, the County appealed portions of the Growth Board's decision to Clallam County Superior Court. The County sought review of the Growth Board's determination that (1) CCC 33.20, which permits urban uses of land before sewer services are available in the Carlsborg UGA, is noncompliant with the GMA and substantially interferes with GMA goals; (2) the Carlsborg UGA's capital facilities plan is noncompliant with the GMA because it does not adequately plan for sewer and police services; (3) the Growth Board had jurisdiction to review Futurewise's challenge to the amount of land contained in the County's UGAs; and (4) the R2 and RW2 housing densities conflict with the GMA's requirements.

¶ 11 On July 17, 2009, the superior court entered its final order. The superior court held that the Growth Board lacked jurisdiction to evaluate the Carlsborg UGA and reversed the Growth Board's decision regarding the adequacy of the capital facilities plan and the Growth Board's...