Common Sense Alliance, P.J. Taggares Co. v. Growth Mgmt. Hearings Bd., 72235-2-I

• Decision Date: 10 August 2015
• Docket Number: No. 72235-2-I,72235-2-I
• Court: Washington Court of Appeals
• Parties: COMMON SENSE ALLIANCE, P.J. TAGGARES COMPANY, and FRIENDS OF THE SAN JUANS, Appellants, v. GROWTH MANAGEMENT HEARINGS BOARD, WESTERN WASHINGTON REGION, Defendant, and SAN JUAN COUNTY, Respondent.

COMMON SENSE ALLIANCE, P.J. TAGGARES COMPANY,and FRIENDS OF THE SAN JUANS, Appellants, v. GROWTH MANAGEMENT HEARINGS BOARD,WESTERN WASHINGTON REGION, Defendant,andSAN JUAN COUNTY, Respondent.

No. 72235-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 10, 2015

(consolidated w/72236-1-I)

UNPUBLISHED OPINION

BECKER, J.—This opinion affirms a superior court decision rejecting challenges to San Juan County's critical area ordinances.

The Growth Management Act, chapter 36.70A RCW, directs local governments to designate "critical areas" and adopt development regulations to protect them. RCW 36.70A.130(1). "Critical areas" include wetlands, areas that feed aquifers used for potable water, fish and wildlife habitat conservation areas, floodplains, and geologically hazardous areas. RCW 36.70A.030(5).

San Juan County began updating its critical areas ordinances in 2006. In 2012 the county enacted the four ordinances at issue in this appeal.

A number of people and entities, including the parties in this appeal, filed petitions for review of the ordinances with the Western Washington Growth Management Hearings Board. Appellant Friends of the San Juans raised 52 issues for review by the Board, generally contending that the ordinances did not go far enough to meet the Act's requirement that local governments protect critical areas. Appellants Common Sense Alliance and P.J. Taggares Company (collectively "the Alliance") together raised 27 issues for review, generally contending that the ordinances went too far to protect critical areas. The Board heard oral argument from June 24 to 26, 2013, in Friday Harbor. The Board found in favor of the parties on some issues and affirmed on others.

On October 2, 2013, the Alliance filed a petition for review of the Board's decision in San Juan County Superior Court, raising six issues. Friends filed its petition the next day, raising seven issues. In a thorough memorandum, the superior court upheld the Board's decision on each issue raised.

The Alliance and Friends have both appealed from the decision of the superior court. The two appeals have been consolidated. The first four issues to be addressed were raised by the Alliance. The remaining issues were raised by Friends.

ALLIANCE APPEAL

First Issue: Nexus & proportionality

The Alliance mounts a facial challenge to the critical areas ordinances adopted by the County. The Alliance argues that the ordinances are fatally flawed because they do not provide for site-specific considerations of nexus, proportionality, and reasonable necessity before a critical area buffer may be imposed upon a project under review.

The County adopted four critical areas ordinances: San Juan County Ordinance 26-2012 (General), Ordinance 27-2012 (Geologically Hazardous Areas and Frequently Flooded Areas), Ordinance 28-2012 (Wetlands), and Ordinance 29-2012 (Fish & Wildlife Habitat Conservation Areas). The arguments in this case focus primarily on the habitat conservation ordinance.

The habitat ordinance lists "types offish and wildlife habitat conservation areas." Ordinance 29-2012 at 9. These include areas with which endangered, threatened, and sensitive species common to the San Juans have a primary association; shellfish areas; nature preserves; and habitats of local importance. Ordinance 29-2012 at 9-11. While recognizing that maps exist showing the approximate location of habitat critical areas, the ordinance states that such maps are "only a guide to the possible location of these critical areas, and conditions in the field control." Ordinance 29-2012 at 12. Accordingly, the ordinance does not specifically identify each habitat conservation area and map out its boundaries. Rather, it states that all development activities requiring a permit "must have a final inspection to verify compliance with approved plans and the requirements of this section." Ordinance 29-2012 at 13.

The ordinance lays out specific protection standards—including a "site-specific procedure for sizing buffers and tree protection zones." Ordinance 29-2012 at 16 Figure 3.2. The site-specific procedure takes into account the proposed land use intensity in addition to the type of water body. Ordinance 29-2012 at 16.

The Alliance contends that notwithstanding the site-specific procedure, the habitat buffers are designed to be imposed automatically on a one-size-fits-all basis. The Alliance argues that the ordinances must be reworked to provide flexibility so that the size of buffers can be modified according to the actual impact that a proposed project is expected to have on a critical habitat.

There is no provision for the Department to modify or eliminate the required buffer based on the nature impact (or lack thereof) of the project undertaken, the needs of the critical area to be protected, or the benefit the required buffer may provide to the habitat giving rise to the condition. The water quality buffer is to be imposed regardless of whether or not (I) the proposed development increases, decreases, or makes no change to the water quantity discharged to the shoreline, or (2) the buffer is "reasonably necessary" to achieve "no net loss" of habitat function and value as provided by RCW 36.70A.480(4).

If the proposed development on a property is within 200 feet from an area containing listed habitat, any tree on that property within 110 feet of the shoreline is subject to the tree protection requirements, regardless of whether or not (1) the tree on surrounding area is modified (2) the development increases, decreases, or has no effect on the functionality of the tree for environmental purposes, or (3) the tree in that location is considered a benefit to the habitat to be protected.

Once a listed habitat is identified within 200 feet, the ordinance as written eschews any notion of project related nexus and proportionality as a condition of implementation of water quality, buffer and tree protection zone. There is no burden on the local government, nor any discretion authorized for the Department, to make some rational link demonstrating nexus proportionality or reasonable necessity under the specific circumstances between the project and the condition to be imposed. The imposition of water quality and tree protection buffers on a developing property do pose significant limitations on the use and further development of the affected properties.

Br. of Alliance at 17-18 (citations and footnote omitted). In an undeveloped section of its brief entitled "other issues," the Alliance includes the wetland buffers in the wetland ordinance in this argument. The Alliance argues that due to the absence of consideration for nexus and proportionality, the ordinances violate both RCW 82.02.020 and the takings clause of the United States Constitution. U.S. CONST. amend. V. The Alliance asks this court to reverse the Board decision upholding the ordinances.

The Board did not rule on issues raised under RCW 82.02.020 or the takings clause, recognizing it lacked authority to adjudicate issues other than compliance with the Growth Management Act. RCW 36.70A.280(1). The superior court concluded that these issues were not ripe because the Alliance did not challenge a specific decision about a specific parcel of land.

Facial challenges to land use ordinances have been reviewed under RCW 82.02.020 and under the takings clause. See, e.g., Citizens' All. for Prop. Rights v. Sims, 145 Wn. App. 649, 656, 187 P.3d 786 (2008), review denied, 165 Wn.2d 1030 (2009): Guggenheim v. City of Goleta, 638 F.3d 1111, 1116-17 (9th Cir. 2010), cert. denied, 131 S. Ct. 2455 (2011). We will address the facial challenge on the merits.

1. RCW 82.02.020

The Alliance first argues that the ordinances violate RCW 82.02.020. The meaning of RCW 82.02.020 is a question of law reviewed de novo. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 757, 49 P.3d 867 (2002).

In the late 1970s, several counties authorized the imposition of fees on new development to pay for, among other things, parks, schools, roads, police, and fire services. Developers and homeowners who paid the fees sued, challenging the counties' authority to impose the fees. The Supreme Court held that the fees were really taxes and that no statute granted local governments the authority to impose taxes. Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 808, 650P.2d 193(1982).

In response to Hillis Homes, the legislature amended RCW 82.02.020, adding the language at issue here. R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 408-10, 780 P.2d 838 (1989), citing LAWS OF 1982, 1st Ex. Sess., ch. 49, § 5. As amended, RCW 82.02.020 prohibits local governments from imposing direct or indirect taxes, fees, or charges on the development, subdivision, classification, or reclassification of land.

No county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land. However, this section does not preclude dedications of land or easements within the proposed development or plat which the county, city, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or easement is to apply.

This section does not prohibit voluntary agreements with counties, cities, towns, or other municipal corporations that allow a payment in lieu of a dedication of land or to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat.

RCW 82.02.020. RCW 82.02.020 requires strict compliance with its terms. Trimen Dev. Co. v. King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994); R/L Associates, 113 Wn.2d at 409.

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