Futurewise v. Snohomish County

Citation9 Wash.App.2d 391,444 P.3d 1228
Decision Date15 July 2019
Docket NumberNo. 79663-1-I,79663-1-I
Parties FUTUREWISE and Pilchuck Audubon Society, Appellants, v. SNOHOMISH COUNTY and The Growth Management Hearings Board, Respondents.
CourtCourt of Appeals of Washington

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

Alethea Hart, Laura Colthurst Kisielius, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Respondents.

OPINION PUBLISHED IN PART

Dwyer, J. ¶1 Following the 2014 Oso landslide, Snohomish County updated its regulations designating and protecting critical areas, including geologically hazardous areas (GHAs) such as landslide hazard areas. Futurewise and the Pilchuck Audubon Society (collectively Futurewise) believe that the County’s regulations fail to meet the requirements of the Growth Management Act (GMA), codified primarily in chapter 36.70A RCW. Futurewise challenged the County’s new regulations before the Growth Management Hearings Board, but the Board concluded that the majority of the regulations complied with the GMA. On appeal, Futurewise seeks reversal of the Board’s decision to uphold the regulations.

¶2 Futurewise asserts that the County’s new regulations fail to protect the public health and safety from GHAs as required by the GMA and that the Board erred when it concluded that Futurewise presented inadequate briefing on certain issues and deemed those issues abandoned. We disagree. The GMA does not mandate that local governments consider the protection of the public health and safety when developing critical area regulations, and the Board did not err when it concluded that Futurewise had abandoned several issues by presenting inadequate briefing to the Board.1 We affirm.

I

¶3 Following the Oso landslide in 2014, the Snohomish County Council adopted Amended Ordinance 15-034 (Ordinance 15-034) on September 2, 2015, updating its critical area regulations. The Ordinance amended sections of the Snohomish County Code (SCC) pertaining to wetlands and fish and wildlife habitat conservation areas (chapter 30.62A SCC), geologically hazardous areas (chapter 30.62B SCC), and critical aquifer recharge areas (CARAs) (chapter 30.62C SCC).

¶4 Futurewise and the Tulalip Tribes challenged Ordinance 15-034 and the amended regulations protecting critical areas before the Board. The Board subsequently concluded that Futurewise and the Tulalip Tribes failed to meet their burden to establish the invalidity of the challenged regulations except as to one issue not pertinent to this appeal.2 Most pertinent to this appeal are the Board’s conclusions that (1) the GMA does not mandate that the County consider the public health and safety when developing critical area regulations, and (2) that Futurewise abandoned all issues set forth under "Issue C-1" in its briefing before the Board because it presented inadequate argument linking the County’s regulations to specific violations of the GMA. After the Board reached its decision, Futurewise appealed to the Thurston County Superior Court, which affirmed the Board’s decision in a brief order.

¶5 Futurewise timely appealed to Division Two, which transferred the matter to us for decision.

II

¶6 Futurewise’s primary contention on appeal is that the Board erred by concluding that the GMA does not require local governments to consider the protection, against GFIAs, of the public health and safety when developing critical area regulations. This is so, Futurewise asserts, because RCW 36.70A.030(10) defines GHAs as "areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns." According to Futurewise, the Board’s conclusion that the GMA does not require local governments to consider the protection of the public health and safety during the development of critical area regulations improperly writes "consistent with public health or safety concerns" out of the statutory definition of GHAs.

¶7 In response, the County asserts that RCW 36.70A.030(10) does not set forth any affirmative mandate to consider the public health and safety during the development of critical area regulations. Instead, the County asserts that RCW 36.70A.172(1) sets forth the requirements for counties and cities when developing regulations and that this statute does not require consideration of the public health and safety. The County has the better argument.

A

¶8 Our review of decisions by the Growth Management Hearings Board is governed by the Washington Administrative Procedure Act, chapter 34.05 RCW (APA). Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wash.2d 144, 155, 256 P.3d 1193 (2011). We review the Board’s decision directly, rather than reviewing the decision of the superior court. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). "Under the judicial review provision of the APA, the ‘burden of demonstrating the invalidity of [the Board’s decision] is on the party asserting invalidity.’ " Thurston County v. Cooper Point Ass’n, 148 Wash.2d 1, 7-8, 57 P.3d 1156 (2002) (alteration in original) (quoting RCW 34.05.570(1)(a) ).

¶9 We review issues of law de novo. Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wash.2d 329, 341, 190 P.3d 38 (2008). We accord substantial weight to the Board’s interpretation of the GMA, but we are not bound by the Board’s interpretations. Thurston County, 164 Wash.2d at 341, 190 P.3d 38. Any deference we show to the Board’s interpretations, however, is superseded by the deference both we and the Board must show to county planning actions. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 238, 110 P.3d 1132 (2005). Additionally, we will not defer to the Board’s interpretations of the GMA where the Board’s interpretation expands the scope of its own authority. See Ma’ae v. Dep’t of Labor & Indus., 8 Wash. App. 2d 189, 197, 438 P.3d 148 (2019).

¶10 The Board’s decision must be supported by substantial evidence, which requires that there be " ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ " Kittitas County, 172 Wash.2d at 155, 256 P.3d 1193 (internal quotation marks omitted) (quoting Thurston County, 164 Wash.2d at 341, 190 P.3d 38 ). "On mixed questions of law and fact, we determine the law independently, then apply it to the facts as found" by the Board. Cooper Point Ass’n, 148 Wash.2d at 8, 57 P.3d 1156 (citing Hamel v. Emp’t Sec. Dep’t, 93 Wash. App. 140, 145, 966 P.2d 1282 (1998) ).

¶11 "A county has broad discretion under the GMA in creating development regulations tailored to local circumstances."

Yakima County v. E. Wash. Growth Mgmt. Hearings Bd., 168 Wash. App. 680, 691, 279 P.3d 434 (2012) (citing Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wash.2d 415, 430, 166 P.3d 1198 (2007) ). When a party challenges a county’s regulations under the GMA, the Board must find compliance unless the challenged regulations are clearly erroneous in view of the entire record and the goals and requirements of the GMA. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wash.2d 488, 497, 139 P.3d 1096 (2006) (citing RCW 36.70A.320(3) ). "To find an action ‘clearly erroneous,’ the Board must have a ‘firm and definite conviction that a mistake has been committed.’ " Lewis County, 157 Wash.2d at 497, 139 P.3d 1096 (citing Dep’t of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wash.2d 179, 201, 849 P.2d 646 (1993), aff’d, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994) ).

B

¶12 Futurewise contends that several of the County’s updated critical area regulations do not comply with the GMA because they were developed without considering the protection of the public health and safety from critical areas. But Futurewise fails to identify any provision of the GMA that sets forth such a requirement. Instead, Futurewise asserts that by failing to consider the public health and safety when developing critical area regulations, the County ignored the definition of GFIAs set forth in RCW 36.70A.030(10) —which specifies that GHAs are areas "not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns." According to Futurewise, this definition requires the County to consider the protection of the public health and safety from GHAs when developing critical area regulations.

¶13 Local governments subject to the GMA are required to "adopt development regulations that protect critical areas" designated under RCW 36.70A.170. RCW 36.70A.060(2). The GMA further specifies that "[i]n designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas." RCW 36.70A.172(1). This provision sets forth the affirmative obligation the GMA places on counties developing critical area regulations to protect critical areas’ "functions and values," and it does not include any requirement that counties consider the public health and safety when developing critical area regulations.3 Indeed, when interpreting the requirements of RCW 36.70A. 172(1), our Supreme Court has analyzed the statute as requiring the protection of critical areas themselves, rather than anything external to critical areas, such as the public health or safety. See Swinomish, 161 Wash.2d at 427-28, 166 P.3d 1198 (concluding that a no harm regulation setting the baseline for measuring harm as the current condition of critical areas complied with the GMA because the word protect in RCW 36.70A.172 required only the prevention of further harm to critical areas, rather than the enhancement of...

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