Clark Cnty. v. Growth Mgmt. Hearings Bd.

• Decision Date: 20 August 2019
• Docket Number: No. 51745-1-II,No. 50847-8-II (Consolidated),50847-8-II (Consolidated)
• Court: Washington Court of Appeals
• Parties: CLARK COUNTY, Petitioner/Cross Respondent, Friends of Clark County ; Futurewise, Respondents/Cross Petitioners, and City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners, and Clark County Citizens United, Inc., Petitioners, v. GROWTH MANAGEMENT HEARINGS BOARD, Respondent. Clark County, Petitioner/Cross-Respondent, Friends of Clark County ; Futurewise, Respondents/Cross Petitioners, and City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners, and Clark County Citizens United, Inc., Petitioners, v. Growth Management Hearings Board, Respondent.

448 P.3d 81

CLARK COUNTY, Petitioner/Cross Respondent,

Friends of Clark County ; Futurewise, Respondents/Cross Petitioners,

and

City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners,

and

Clark County Citizens United, Inc., Petitioners,

v.GROWTH MANAGEMENT HEARINGS BOARD, Respondent.

Clark County, Petitioner/Cross-Respondent,

Friends of Clark County ; Futurewise, Respondents/Cross Petitioners,

and

City of Ridgefield; City of LA Center; RDGB Royal Estate Farms LLC; RDGK Rest View Estates LLC; RDGM Rawhide Estates LLC, RDGF River View Estates LLC, RDGS Real View LLC, and 3B Northwest LLC, Petitioners,

and

Clark County Citizens United, Inc., Petitioners,

v.Growth Management Hearings Board, Respondent.

No. 50847-8-II (Consolidated)

No. 51745-1-II

Court of Appeals of Washington, Division 2.

Filed August 20, 2019

Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, for Appellants.

James Denver Howsley, Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, Sarah Ellen Mack, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Tim Trohimovich, Futurewise, 816 2nd Ave. Ste. 200, Seattle, WA, 98104-1535, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Hillary Evans, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Christine M. Cook, Clark County Prosecutor's Office, Civil Div. P.O. Box 5000. 1300 Franklin St. Ste. 380. Vancouver, WA, 98666-5000, Curtis M. Burns, Clark County Prosecuting Attorney's Offi., 1300 Franklin St., Vancouver, WA, 98660-2865 for Petitioners.

Christine M. Cook, Clark Co. Prosecutor's Office, Civil Div., P.O. Box 5000, 1300 Franklin St. Ste. 380, Vancouver, WA, 98666-5000, Richard M. Stephens, Stephens & Klinge LLP, 601 108th Ave. N.E. Ste. 1900, Bellevue, WA, 98004-4376, Stephen W. Horenstein, Horenstein Law Group PLLC, 500 Broadway St. Ste. 370, Vancouver, WA, 98660-3324, Maren Calvert, Attorney at Law, 500 Broadway St. Ste. 120, Vancouver, WA, 98660-3322, Daniel H. Kearns, Reeve Kearns PC, 621 S.W. Morrison St. Ste. 510, Portland, OR, 97205-3808, Sarah Ellen Mack, Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, Janean Parker, Attorney at Law, P.O. Box 298, Adna, WA, 98522-0298, Hillary Evans Graber, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, James Denver, Howsley Jordan Ramis, PC, 1499 S.E. Tech Center Pl. Ste. 380, Vancouver, WA, 98683-9575, David H. Bowser, Jordan Ramis PC, 2 Centerpointe Dr. Ste. 600, Lake Oswego, OR, 97035-8619, for Respondents.

Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.

PART PUBLISHED OPINION

Worswick, J. ¶ 1 The Growth Management Act (GMA), chapter 36.70A RCW, requires Clark County to periodically update its comprehensive land use and zoning plan. Clark County updated its plan in 2016 (2016 Plan Update), making several changes to the County’s comprehensive plan.

¶ 2 The Friends of Clark County and Futurewise (FOCC), as well as Clark County Citizens United (CCCU), petitioned the Growth Management Hearings Board (Board) to review the 2016 Plan Update for compliance with the GMA. The City of Ridgefield, City of La Center, 3B Northwest LLC (3B), and five other individual LLCs¹ intervened in that action.

¶ 3 The Board issued its Final Decision and Order (FDO), which concluded, in part, that the County did not comply with the GMA when it (1) dedesignated three areas of agricultural land and designated these lands as urban growth areas (UGA), (2) dedesignated agricultural land and designated this area as a rural industrial land bank (RILB), (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. However, the Board concluded that the County complied with the procedural requirements of the GMA.

¶ 4 The County took some efforts to come into compliance, after which the Board issued a compliance order. The Board concluded that the County remained noncompliant regarding dedesignating agricultural land for two UGAs and the RILB but that it had complied regarding one UGA, the agricultural and forestland parcel sizes, and rural densities.

¶ 5 The parties appeal both the FDO and the compliance order. Additionally, FOCC moves to dismiss the County’s and 3B’s petitions for judicial review of the FDO for lack of appellate jurisdiction because they did not properly and timely serve their petitions for judicial review.

¶ 6 The County, La Center, Ridgefield, and the LLCs argue that the Board’s finding of the County’s noncompliance regarding the County’s UGA designations are moot and that the Board acted arbitrarily and capriciously by requiring the County to take further action regarding these UGAs. The County also argues that the Board erroneously interpreted a rule regarding agricultural lands and erred when it concluded that the County violated the GMA by dedesignating agricultural lands for the RILB.

¶ 7 CCCU argues that the Board erred by concluding that the County complied with the GMA’s procedural requirements regarding public participation, an issue paper, and source documents, and that the County complied with the GMA regarding designations of agricultural and forestlands, population projections, and private property considerations. CCCU further argues that the Board erred by concluding the County violated the GMA when the County reduced parcel sizes of agricultural and forestland.

¶ 8 FOCC argues that the compliance order erroneously declared issues to be moot regarding readopted forestland and rural density provision from the County’s prior comprehensive plan.

¶ 9 We grant FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review of the FDO, for lack of appellate jurisdiction. In the published portion of our opinion, we hold that issues regarding the annexed lands are moot. In the unpublished portion of this opinion, we hold that the Board did not err regarding the remaining issues raised by CCCU and FOCC, and remand to the Board for further proceedings in accordance with this opinion.

FACTS

¶ 10 The County adopted the 2016 Plan Update by Amended Ordinance No. 2016-06-12 on June 28, 2016. In this update, the County dedesignated three areas of agricultural land and designated these lands as UGAs, dedesignated an area of agricultural land and designated this land as RILB, reduced agricultural and forestland parcel sizes, and adjusted rural densities.

¶ 11 Two of the newly designated UGAs were adjacent to the cities of La Center and Ridgefield. Immediately following the 2016 Plan Update’s passage, La Center and Ridgefield began the process of annexing these adjacent UGAs into their respective cities.

¶ 12 FOCC and CCCU petitioned the Board regarding the 2016 Plan Update. The Board consolidated these appeals. La Center, Ridgefield, 3B, and the LLCs intervened. Prior to the Board’s decision, La Center passed an ordinance annexing its adjacent UGA, effective on August 29, 2016. Ridgefield passed an ordinance annexing its adjacent UGA, effective on October 14, 2016.

¶ 13 The Board issued its FDO on March 23, 2017. The Board determined some provisions invalid and found other provisions noncompliant.² The Board concluded, in part, that the County did not comply with the GMA when it (1) dedesignated agricultural land and designated the UGAs, (2) dedesignated agricultural land and designated the RILB, (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. Further, the Board made determinations of invalidity regarding the County’s UGA designations. The Board remanded the 2016 Plan Update to the County for the County to come into compliance with the GMA.

¶ 14 The County, Ridgefield, La Center, the LLCs, and CCCU filed petitions for review of the Board’s FDO in superior court. Those petitions were consolidated by stipulation of the parties. FOCC sought direct review of the Board’s FDO, and we granted review.

¶ 15 After the Board remanded the 2016 Plan Update, and while appeal of the FDO was pending, the County adopted new amendments to its comprehensive plan that returned the parcel sizes and rural densities to their previous designations before the 2016 Plan Update amendments. The County also reversed one UGA designation during this period; however, the County did not take remedial action regarding the UGAs annexed by Ridgefield and La Center, arguing that it could not change the designation of land no longer within its control.

¶ 16 The Board issued a compliance order on January 10, 2018, concluding that the parcel sizes and rural density issues were moot and compliant because the County had adopted previously GMA-compliant provisions. The Board also concluded that the County was not in compliance regarding the UGAs annexed by La Center and Ridgefield.

¶ 17 Subsequently, Ridgefield, La Center, the County, the LLCs, 3B, and FOCC sought direct review of the Board’s compliance order and consolidation with the review of the FDO. We accepted direct review of the compliance order and consolidated the appeals.

ANALYSIS

I. MOTION TO DISMISS

¶ 18 As an initial matter, we address FOCC’s motion to dismiss the County’s and 3B’s petitions for judicial review of the Board’s FDO. FOCC argues that this court lacks subject matter, or appellate, jurisdiction because the County and 3B failed to timely serve the Board with their respective petitions for judicial review as required by RCW 34.05.542, due to their failure to deliver their petitions for...