Clark Cnty. Wash. v. W. Wash. Growth Mgmt. Hearings Review Bd.

• Decision Date: 21 March 2013
• Docket Number: No. 85989–2.,85989–2.
• Parties: CLARK COUNTY Washington, City of LA Center, GM Camas, LLC, Petitioners, MacDonald Living Trust and Renaissance Homes, Respondents, and Birchwood Farms, LLC, Respondent–Intervenor, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS REVIEW BOARD, John Karpinski, Clark County Natural Resources Council, and Futurewise, Respondents.
• Court: Washington Supreme Court

177 Wash.2d 136

298 P.3d 704

CLARK COUNTY Washington, City of LA Center, GM Camas, LLC, Petitioners,MacDonald Living Trust and Renaissance Homes, Respondents,andBirchwood Farms, LLC, Respondent–Intervenor,

v.WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS REVIEW BOARD, John Karpinski, Clark County Natural Resources Council, and Futurewise, Respondents.

No. 85989–2.

Supreme Court of Washington, En Banc.

Argued June 14, 2012.

Decided March 21, 2013.

Christine M. Cook, Clark Co. Prosc. Attny. Office, Civil Div., Vancouver, WA, Daniel H. Kearns, Reeve Kearns PC, Portland, OR, Rogelio Omar Riojas, DLA Piper LLP, Seattle, WA, John D. Spurling, Betty M. Shumener, Henry H. Oh, Shumener, Odson & Oh, LLP, Los Angeles, CA, for Petitioners.

Marc Worthy, Office of the Attorney General, Tim Trohimovich, Futurewise, Seattle, WA, Robert A. Beattey, Spencer Law Firm, LLC, Tacoma, WA, James Denver Howsley, Jordan Ramis, PC, Randall Bryan Printz, Brian K. Gerst, Michael C. Simon, Landerholm, P.S., Vancouver, WA, for Respondents.

Le Anne Marie Bremer, Miller Nash LLP, Vancouver, WA, for Respondent–Intervenor.

Julie Sund Nichols, Law Offices of Stephen Whitehouse, Shelton, WA, amicus counsel for Building Industry of Washington.

Kathleen J. Haggard, Porter Foster Rorick LLP, Seattle, WA, amicus counsel for Washington State Association.

Roger Dyer Knapp, Attorney at Law, Camas, WA, amicus counsel for City of Camas.

James Denver Howsley, Jordan Ramis, PC, Vancouver, WA, amicus counsel for Johnston Dairy, LLC.

James Denver Howsley, Jordan Ramis, PC, Vancouver, WA, amicus counsel for William Kennedy and Art Kennedy.

Christopher R. Sundstrom, Spencer Sundstrom PLLC, Vancouver, WA, for Other Parties.

GONZÁLEZ, J.

[177 Wash.2d 139]¶ 1 This case presents a straightforward issue of appellate procedure. The question is whether the Court of Appeals erred by reviewing separate and distinct claims that had been resolved below and were not raised on appeal. The parties were not challenging the disposition of those claims, and thus, the claims had been finally adjudicated. The Court of Appeals nevertheless addressed the abandoned claims sua sponte and reversed the lower court's unchallenged rulings. In order to promote finality, judicial economy, predictability, and private settlement of disputes, and to ensure vigorous advocacy for appellate review, we prohibit review of separate and distinct claims that have not been raised on appeal. We thus vacate the portion of the Court of Appeals' opinion reversing the superior court's unchallenged rulings.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 This case originates from a September 25, 2007, Clark County ordinance (the 2007 Ordinance) de-designating certain lands from status as agricultural land of long-term commercial significance (ALLTCS), seeRCW 36.70A.170, and designating the same land as urban growth area (UGA), seeRCW 36.70A.110. These designations are part of the comprehensive planning required under the Growth Management Act (GMA), chapter 36.70A RCW. Under the GMA, land that is outside of a city must meet certain substantive requirements to be designated UGA, RCW 36.70A.110(1), and no city may annex territory outside of a UGA, RCW 35.13.005; RCW 35A.14.005.

¶ 3 On November 16, 2007, Respondents John Karpinski, Clark County Natural Resources Council, and Futurewise (the Challengers) filed a petition with the Growth Management Hearings Board (the Board) alleging that Clark County was not in compliance with the GMA. SeeRCW 36.70A.280. The Challengers specifically argued that under the requirements of the GMA, the various lands affected by the 2007 Ordinance had to be designated ALLTCS and could not be designated UGA. Numerous parties were allowed to intervene.

¶ 4 In December 2007 and January 2008, the cities of Camas and Ridgefield began proceedings to annex certain parcels—areas now referred to generally by the parties as CA–1, CB, and RB–2 (collectively, the Annexed Lands)—that had been designated UGA by the 2007 Ordinance, Notwithstanding the ongoing dispute before the Board, the Challengers did not contest the annexations of the Annexed Lands in any proceeding, nor did any party bring the annexation proceedings to the attention of the Board. In April 2008, Camas and Ridgefield completed their annexations of the Annexed Lands.

¶ 5 On May 14, 2008, the Board issued its final order, finding that Clark County was not in compliance with the GMA. The Board specifically found that certain land designations from the 2007 Ordinance were clearly erroneous, including designation of the Annexed Lands as UGA. The Board also found that Clark County's clearly erroneous designations would substantially interfere with the fulfillmentof the goals of the GMA and thus were invalid. SeeRCW 36.70A.302(1). The Board was still unaware that the Annexed Lands had been annexed.

¶ 6 On June 11, 2008, intervenor city of La Center filed a petition for review in the Clark County Superior Court, appealing the Board's final order. SeeRCW 36.70A.300(5); RCW 34.05.514. On January 7, 2009, Clark County filed a brief with the superior court requesting reversal of the Board's order regarding Clark County's designations under the GMA.

¶ 7 On February 26, 2009, the Challengers entered into a stipulation with intervenor GM Camas LLC (GMC)—the owner of certain property contained within CA–1—and agreed that because GMC's property had been annexed by the City of Camas, GMC had prevailed. The stipulating parties submitted an order to the superior court, which was entered, reversing the Board's order as to GMC.

¶ 8 On June 12, 2009, the superior court entered an order that resolved the various remaining claims on appeal, including claims related to the Annexed Lands. The court acknowledged its prior stipulated order regarding CA–1 and concluded that due to annexation, all claims related to RB–2 also were moot. The superior court also reversed the Board's finding that Clark County's designation of area CB as UGA was clearly erroneous, apparently unaware that CB also had been annexed.

¶ 9 The Challengers filed a timely notice of appeal seeking review of the superior court's June 12, 2009, order. The Challengers' brief focused on substantive issues related to various parcels not at issue here. On May 17, 2010, the Court of Appeals, on its own motion, ordered supplemental briefing regarding issues related to the Annexed Lands. In response, the Challengers acknowledged the stipulation regarding area CA–1 and represented that all claims related to areas CB and RB–2 were moot due to annexation. The Challengers explained that the Annexed Lands were not “encompassed in their petition of appeal,” that they “did not ... intend to seek review related to those areas ... which were annexed,” and “did not include argument related thereto in their briefing.” Appellants' Suppl. Br. at 1–3. Unsatisfied, the Court of Appeals on June 1, 2010, ordered additional briefing regarding the authority underlying the annexations by Camas and Ridgefield. The Challengers noted that they had not challenged the annexations before the superior court. At this time, the city of Camas represented to the Court of Appeals that it would be a necessary party to any adjudication of the validity of the annexations.

¶ 10 On April 13, 2011, the Court of Appeals rendered its opinion. Clark County v. W. Wash. Growth Mgmt. Hearings Review Bd., 161 Wash.App. 204, 254 P.3d 862 (2011). The Court of Appeals first addressed the validity of the annexations. The court acknowledged that “the parties ... objected, arguing that the validity of the annexations [was] not properly before [the] court,” but the court reasoned that “issues related to the annexations directly impact our ability to resolve pending issues on parcels CA–1, CB, and RB–2 raised in this appeal.” Id. at 222, 254 P.3d 862. The Court of Appeals then framed the issue as “what effect, if any, the annexations had on the Growth Board's jurisdiction to determine GMA compliance for parcels CA–1, CB, and RB–2.” Id. at 223, 254 P.3d 862. The court concluded that “challenged county legislative actions pending review are not final and no party may act in reliance on them,” and thus the annexations “did not deprive the Growth Board of jurisdiction over the challenge to the County's actions.” Id. at 223–24, 254 P.3d 862. Acknowledging the concerns of the city of Camas as “a necessary party to the consideration of any questions involving the validity of the annexations,” the court “limit[ed][its] holding only to the Growth Board's authority to enter findings regarding the validity of the County's decisions relating to these parcels.” Id. at 226, 254 P.3d 862. The Court of Appeals then went on to address various other claims on review. See id. at 226–49, 254 P.3d 862.

¶ 11 Clark County and GMC's successor in interest both sought discretionary review by this court. The petitions for review assigned error to the Court of Appeals' discussion of the Annexed Lands—which the Court of Appeals framed as a determination of the Board's jurisdiction—and GMC's successor in interest also emphasized the stipulation that had been entered by the parties regarding area CA–1. Although the petitions for review raised additional issues, we granted review only on the jurisdictional and parcel CA–1 issues.

¶ 12 The essential issue now before us is whether the Court of Appeals erred by addressing sua sponte the claims related to the Annexed Lands, which had been resolved below and remained unchallenged on appeal.

II. ANALYSIS

¶ 13 The Court of Appeals erred by adjudicating claims that were resolved below, were not raised on appeal, and remained separate and distinct from the claims that the parties raised on appeal. Appellate adjudication of claims resolved below and not raised by the parties on appeal, when not necessary to properly resolving the claims that are raised by the parties on appeal, thwarts the finality of unchallenged stipulations and...