Futurewise v. City of Ridgefield, RDGB Royal Farms LLC

Decision Date29 January 2019
Docket NumberNo. 50406-5-II,50406-5-II
CourtWashington Court of Appeals

MAXA, C.J. - This case arises out of the City of Ridgefield's enactment of ordinance 1216, which annexed approximately 111 acres of farmland (referred to as the Brown annexation) in unincorporated Clark County and adopted residential zoning for the annexed property. Five limited liability companies (collectively the LLCs), which owned all the parcels in the annexed property, initiated the Brown annexation by direct petition.

Futurewise, a nonprofit membership organization, filed a lawsuit in superior court challenging the Brown annexation and the zoning of the annexed property. The LLCs filed a motion to dismiss Futurewise's claims, arguing that the superior court did not have jurisdiction to consider the claims and that Futurewise did not have standing to bring such claims. The superior court granted the motion to dismiss.

We hold that (1) the trial court had jurisdiction under the Uniform Declaratory Judgment Act (UDJA) to consider whether the Brown annexation violated the Growth Management Act (GMA); (2) the trial court did not have jurisdiction under the Land Use Petition Act (LUPA) to consider Futurewise's challenge to the zoning of the annexed property; and (3) Futurewise does not have representational standing to challenge the Brown annexation because Futurewise has not demonstrated that its members have suffered or will suffer any harm relating to the annexation itself. Accordingly, we affirm the superior court's dismissal of Futurewise's claims.

Brown Annexation

The LLCs owned all 18 legal lots in an approximately 111-acre parcel north of the City that was located in unincorporated Clark County. The property was outside of the City's urban growth area and was designated by Clark County as agricultural lands of long-term commercial significance.

In June 2016, Clark County enacted an ordinance updating its comprehensive land use plan as required by the GMA. The amended comprehensive plan expanded the City's urban growth area to include the 111-acre parcel. The comprehensive plan amendment also removed the agricultural designation from the expanded area. Futurewise later challenged Clark County's amended comprehensive plan in a petition to the Growth Management Hearings Board (GMHB).

The LLCs initiated the Brown annexation by filing a notice of intent to annex the 111-acre parcel pursuant to RCW 35A.14.120. Milt Brown was listed as the contact person for the property owners. The City accepted the notice of intent and authorized commencement of annexation proceedings.

On September 8, 2016, the City enacted ordinance 1216. Section 1 of the ordinance annexed the 111-acre parcel into the City. Section 2 stated that the annexed area would be zoned as Residential Low Density 6 (RLD-6) with an Urban Holding 10 (UH-10) overlay.

Futurewise Complaint

Futurewise filed a complaint in superior court, naming the City, the LLCs, and Brown as defendants/respondents. Futurewise asserted six claims: (1) a petition for review under LUPA, (2) a request for a declaratory judgment under the UDJA, (3) a request for a declaratory judgment under article IV, section 6 of the Washington Constitution, (4) a writ of certiorari under RCW 7.16.040, (5) a writ of certiorari under article IV, section 6 of the Washington Constitution, and (6) a writ of review under article IV, section 6 of the Washington Constitution.

Futurewise alleged that it was a nonprofit corporation. It alleged participation and representational standing because a number of its members were landowners and residents of Clark County and the City who were affected and aggrieved by the annexation and zoning adopted by ordinance 1216.

The complaint challenged both components of ordinance 1216: the approval of the annexation and the zoning adopted for the annexed property. First, Futurewise alleged that the annexation violated the procedures in chapter 35A.14 RCW for annexation by code cities and violated certain provisions of the GMA. Futurewise asserted that the superior court had jurisdiction over these claims under the UDJA as well as the Washington Constitution, the common law, and chapter 7.16 RCW (writ of certiorari).

Second, Futurewise alleged that the adoption of zoning for the annexed property in ordinance 1216 violated multiple provisions of the GMA and Ridgefield Development Code(RDC) 18.320.050D. Futurewise claimed that the superior court had jurisdiction over these claims under LUPA.

The complaint also included a series of allegations that Clark County's expansion of the City's urban growth area to include the annexed property violated the GMA. However, Clark County was not named as a defendant in the complaint. And Futurewise acknowledged in the complaint that it had appealed the urban growth area expansion to the GMHB.

Motion to Dismiss

The LLCs filed a motion to dismiss under CR 12(b)(6). They asserted that the superior court had no jurisdiction over any of Futurewise's GMA claims because the GMHB had exclusive jurisdiction over those claims. They also argued that LUPA did not apply to Futurewise's challenge to the zoning of the annexed property. And the LLCs asserted that Futurewise did not have standing to assert any clams regarding the Brown annexation.1

In response, Futurewise submitted declarations by several of its members: Edward Niece, Janice Myev, Newt Rumble and Barbara Kusik, and Cynthia Carlson. They claimed that the change in the annexed property's use from agricultural to residential and the development of the property for housing would damage their properties.

As noted above, Futurewise had appealed Clark County's amended comprehensive plan to the GMHB. After hearing oral argument on the LLCs' motion to dismiss, the superior court deferred ruling on the motion pending the GMHB's decision. The GMHB subsequently ruled that Clark County had violated the GMA in expanding urban growth areas for three cities,including Ridgefield. The GMHB remanded the Clark County ordinance amending the comprehensive plan for Clark County to achieve compliance with the GMA.2

The trial court then held additional oral argument on the LLCs' motion to dismiss. The trial court granted the motion and entered a judgment of dismissal.

Futurewise appeals the trial court's order granting the motion to dismiss.


We review a trial court's ruling on a motion to dismiss de novo. Wash. Trucking Ass'ns v. Emp't Sec. Dep't, 188 Wn.2d 198, 207, 393 P.3d 761, cert. denied 138 S. Ct. 261 (2017). Dismissal is appropriate where it appears beyond doubt that a plaintiff will be unable to prove any set of facts that would justify recovery. Id. We assume the truth of the allegations in the plaintiff's complaint and may consider hypothetical facts not included in the record. Id.

Under CR 12(b)(6), the trial court can consider only the allegations contained in the complaint and cannot look beyond the face of the pleadings. Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844, 347 P.3d 487 (2015). If the trial court considers information outside the complaint, the motion must be converted to a summary judgment motion under CR 56. McNamara v. Koehler, 5 Wn. App. 2d 708, 713, 429 P.3d 6 (2018). We review a trial court's ruling on summary judgment de novo. Schibel v. Eymann, 189 Wn.2d 93, 98, 399 P.3d 1129 (2017). "Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id.; see also CR 56(c). When evaluating the evidence on summary judgment, we must view all facts and reasonable inferencestherefrom in the light most favorable to the nonmoving party. Piris v. Kitching, 185 Wn.2d 856, 861, 375 P.3d 627 (2016).

Here, Futurewise submitted declarations regarding the harms suffered by its members and the GMHB's ruling striking down the Clark County comprehensive plan amendments. The trial court deferred its consideration of the motion to dismiss in order to consider how the GMHB ruled on Futurewise's appeal. And the trial court stated in its oral ruling on the standing issue that it was considering the supplemental declarations. Accordingly, we review the trial court's ruling under the CR 56 summary judgment standard.


Futurewise argues that the superior court had jurisdiction over its claim that the Brown annexation adopted in section 1 of ordinance 1216 violated the GMA. We agree.

1. No GMHB Jurisdiction

Initially, we conclude that the GMHB does not have exclusive jurisdiction over Futurewise's challenge to the Brown annexation.

a. Legal Principles

The GMA requires counties subject to the GMA and cities within those counties to develop a comprehensive plan. RCW 36.70A.040(3)(d). In addition, those counties and cities must adopt development regulations that are consistent with and implement the comprehensive plan. RCW 36.70A.040(3)(d). RCW 36.70A.020 lists a number of goals that must guide the preparation of comprehensive plans and development regulations. Counties and cities must act in conformity with their comprehensive plans. RCW 36.70A.120. The legislature created the GMHB to hear petitions alleging violations of the GMA. RCW 36.70A.250, .280. Under RCW 36.70A.280(1)(a), the GMHB "shall hear and determine only those petitions alleging" among other things, that "a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter." RCW 36.70A.290(2) states that a GHMB petition must relate to "an adopted comprehensive plan, development regulation, or permanent amendment thereto." Under these provisions, "GMHBs have limited jurisdiction and may decide only challenges to...

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