Gold Star Resorts, Inc. v. Futurewise
| Decision Date | 27 August 2007 |
| Docket Number | No. 58379-4-I.,58379-4-I. |
| Citation | 140 Wn. App. 378,166 P.3d 748 |
| Court | Washington Court of Appeals |
| Parties | GOLD STAR RESORTS, INC. Respondent/Cross Appellant, v. FUTUREWISE, Appellant/Cross Respondent, Western Washington Growth Management Hearings Board; Whatcom County, Respondents. |
v.
FUTUREWISE, Appellant/Cross Respondent,
Western Washington Growth Management Hearings Board; Whatcom County, Respondents.
[166 P.3d 750]
Kenneth Lederman, Seattle, WA, Counsel for Appellant/ Cross Respondent.
Jack O. Swanson, John C. Belcher, Bellingham, WA, Counsel for Respondent/Cross Appellant.
ELLINGTON, J.
¶ 1 Land use planning under the Growth Management Act (GMA), chapter 36.70A, is a dynamic process. Counties and cities must periodically review their comprehensive plans to adjust for changes in population, critical area ordinances, and legislative amendments to the GMA. Whatcom County's review did not address GMA amendments governing limited areas of more intensive rural development. The Western
Washington Growth Management Hearings Board properly remanded for such an analysis.
¶ 2 In 1997, Whatcom County adopted a comprehensive land use plan and associated regulations, which included a zoning device allowing limited areas of more intensive rural development (LAMIRD). Two months later, the legislature enacted strict new criteria for these devices.
¶ 3 The GMA requires counties to review and revise their comprehensive plans every seven years to ensure continued compliance with the act.1 Whatcom County completed its review in January 2005, and found that its LAMIRD areas "`have not experienced significant change, nor has additional information been obtained regarding such areas since the adoption of the 1997 Whatcom County Comprehensive Plan that warrant further review and update of the Comprehensive Plan.'"2 The county made no revisions to its LAMIRD criteria or to the mapped boundaries of the areas.
¶ 4 Futurewise, an advocacy group for responsible growth management, sought review by the Western Washington Growth Management Hearings Board (Board), contending that in its periodic review, the county should have revised its rural density designations to comply with the new LAMIRD criteria. Futurewise pointed out that Whatcom County's plan, WCO 2004-017,3 allows rural densities now impermissible under the statute. Futurewise also challenged the county's adoption of a map depicting LAMIRD boundaries.
¶ 5 The county moved to dismiss, arguing that the new criteria do not affect an existing comprehensive plan. The Board rejected this argument, adhering to its view expressed in an earlier decision involving Whatcom County and Futurewise4 that a LAMIRD is an optional planning tool which, if used, must comply with the GMA as amended:
The County's designation and regulation of limited areas of more intensive rural development must accord with the criteria in RCW 36.70A.070(5)(d). While those criteria were not in effect at the time that the County's comprehensive plan was first adopted, the update requirement applies to incorporate any GMA amendments into the review and revision of comprehensive plans and development regulations under RCW 36.70A.130.5
¶ 6 After this ruling, Gold Star Resorts, Inc. was granted intervenor status before the Board. Gold Star owns approximately 76 acres of land on the east side of the Interstate 5-Lynden Road interchange in Birch Bay, near the Canadian border. The entire property is currently designated as a "transportation corridor," one of the rural designations attacked in Futurewise's petition. Gold Star was permitted to intervene on condition that it abide by "the terms and conditions of all orders issued in this case."6 In its prehearing brief to the Board, Gold Star formally
adopted all of the county's briefing and arguments.
¶ 7 After a hearing, the Board ruled that the county's LAMIRD designation criteria do not comply with the GMA. The Board remanded to the county for further review of its comprehensive plan.
¶ 8 Gold Star, but not the county, appealed to superior court.7 The superior court reversed the majority of the Board's rulings, holding that the review statute does not require that comprehensive plans be amended to comply with current GMA requirements, and also holding that the rural density issue had been decided by previous litigation in this court. The superior court also ruled that the Board exceeded its authority or erroneously applied the law by adopting a "bright line rule" in its analysis of the rural zoning challenge.
¶ 9 Futurewise appeals.
¶ 10 The appropriate standard of review, as summarized in the recent Supreme Court opinion in Lewis County v. Western Washington Growth Management Hearings Board,8 is as follows:
The Growth Management Hearings Board is charged with adjudicating GMA compliance and invalidating noncompliant plans and development regulations. RCW 36.70A.280, .302. The Board "shall find compliance" unless it determines that a county action "is clearly erroneous in view of the entire record before the board and in light of the goals and requirements" of the GMA. 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." Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wash.2d 179, 201, 849 P.2d 646 (1993)....
The legislature intends for the Board "to grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of" the GMA. RCW 36.70A.3201. But while the Board must defer to Lewis County's choices that are consistent with the GMA, the Board itself is entitled to deference in determining what the GMA requires. This court gives "substantial weight" to the Board's interpretation of the GMA. [King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000).][9]
¶ 11 On appeal, we apply the standards of the Administrative Procedure Act (APA), chapter 34.05 RCW, "`directly to the record before the agency, sitting in the same position as the superior court.'"10 Under the APA, "a court shall grant relief from an agency's adjudicative order if it fails to meet any of nine standards delineated in RCW 34.05.570(3)."11 Here, Gold Star asserts that the Board's order is outside its authority under RCW 34.05.570(3)(b), that the Board erroneously interpreted the law (RCW 34.05.570(3)(d)), and that the Board's order is not supported by evidence that is substantial when viewed in light of the whole record (RCW 34.05.570(3)(e)).
¶ 12 We review errors of law de novo, giving "substantial weight" to the Board's interpretation of the statute it administers.12 "`On mixed questions of law and fact, we determine the law independently, then apply it to the facts as found by the agency.'"13 Substantial evidence is "`a sufficient quantity of evidence to persuade a
fair-minded person of the truth or correctness of the order.'"14
¶ 13 At the heart of this appeal are two questions: (1) whether the Board erred in ruling that the review statute requires the county to bring its comprehensive plan into compliance with current GMA requirements, and (2) whether the Board erroneously interpreted or misapplied the law in concluding that the rural density zoning criteria violate the GMA's density specifications.
¶ 14 As a threshold matter, Gold Star alleges that this challenge is barred under principles of either collateral estoppel15 or res judicata16 by our decision in Wells v. Western Washington Growth Management Hearings Board,17 in which, according to Gold Star, we upheld the county's designation of Whatcom County's transportation corridors. Gold Star misreads Wells. Our decision was entirely procedural, addressing issues of the burden of persuasion, standing, and service. We remanded to the Board with directions to apply certain procedures in reviewing substantive challenges to the Whatcom County comprehensive plan. We explicitly refrained from reviewing "the substantive portions" of the Board's decision.18
¶ 15 In any case, the law has changed, the subject matter is related but not identical, and the issues are not the same. The challenge here is to the inadequacy of the county's comprehensive plan review, not to the validity of the original designations.
¶ 16 The trial court erred in ruling that Wells was dispositive. Neither collateral estoppel nor res judicata bars our review.
¶ 17 Planning under the GMA is not static,19 and comprehensive plans and development regulations must be reviewed and updated as necessary to maintain compliance with the GMA:
(1)(a) Each comprehensive land use plan and development regulations shall be subject to continuing review and evaluation by the county or city that adopted them. A county or city shall take legislative action to review and, if needed, revise its comprehensive land use plan and development regulations to ensure the plan and regulations comply with the requirements of this chapter according to the time periods specified in subsection (4) of this section.... The review and evaluation required by this subsection shall include, but is not limited to, consideration of critical area ordinances
and, if planning under RCW 36.70A.040, an analysis of the population allocated to a city or county from the most recent ten-year population forecast by the office of financial management.
(b) Any amendment or revision to a comprehensive land use plan shall conform to this chapter.[20]
Each county must complete a review every seven years.21
¶ 18 Central to this case is the scope intended by the legislature for the periodic review. Futurewise contends that under RCW 36.70A.130(1), the county must review its comprehensive plan and regulations for compliance with current GMA requirements, and that its failure to revise its designation of LAMIRDs and...
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