Group v. Jefferson County

• Decision Date: 19 January 2011
• Docket Number: Nos. 39071-0-II, 39491-0-II.
• Citation: Group v. Jefferson County, 245 P.3d 789, 159 Wash.App. 446 (Wash. App. 2011)
• Court: Washington Court of Appeals
• Parties: BRINNON GROUP, a Washington nonprofit corporation; and Brinnon MPR Opposition, a Washington nonprofit corporation, Appellants, v. JEFFERSON COUNTY; Statesman Group of Companies Ltd.; Black Point Properties LCC; G.P. Byrkit; P & N Byrkit Family Trust; Palmer and Nancy Byrkit; William Kaufman; VF Manke Trust; Joan Manke; Charles and Judith Manke; Hal and Janice Richards; and State Department of Natural Resources, Respondents, and Western Washington Growth Management Hearings Board, an administrative agency; Jefferson County; a political subdivision of the State of Washington; Pleasant Harbor Marina and Golf Resort, LLP; and Pleasant Harbor Marina, LLC, Respondents.

245 P.3d 789

159 Wash.App. 446

BRINNON GROUP, a Washington nonprofit corporation; and Brinnon MPR Opposition, a Washington nonprofit corporation, Appellants,

v. JEFFERSON COUNTY; Statesman Group of Companies Ltd.; Black Point Properties LCC; G.P. Byrkit; P & N Byrkit Family Trust; Palmer and Nancy Byrkit; William Kaufman; VF Manke Trust; Joan Manke; Charles and Judith Manke; Hal and Janice Richards; and State Department of Natural Resources, Respondents,andWestern Washington Growth Management Hearings Board, an administrative agency; Jefferson County; a political subdivision of the State of Washington; Pleasant Harbor Marina and Golf Resort, LLP; and Pleasant Harbor Marina, LLC, Respondents.

Nos. 39071-0-II, 39491-0-II.

Court of Appeals of Washington, Division 2.

Jan. 19, 2011.

Gerald Barclay Steel, Attorney at Law, Olympia, WA, for Appellant.

David W. Alvarez, Jefferson Co. Pros. Atty., Jefferson Co. Courthouse, Port Townsend, WA, John T. Cooke, Alexander Weal Mackie, Perkins Coie LLP, Seattle, WA, Christa L. Thompson, Atty. Gen. Ofc. Nat. Res. Div., Olympia, WA, for Respondents.

PENOYAR, C.J.

¶ 1 In January 2008, Jefferson County (County) enacted an ordinance that amended its comprehensive plan to permit the development of a master planned resort (MPR) near Brinnon, Washington. Brinnon Group and Brinnon MPR Opposition ¹ challenged the ordinance by filing (1) a petition for review with the Western Washington Growth Management Hearings Board (Board) and (2) a complaint for a constitutional and statutory writ in Clallam County Superior Court. The Board concluded that the County's ordinance had complied with provisions of the Growth Management Act (GMA), chapter 36.70A RCW; the Planning Enabling Act (PEA), chapter 36.70 RCW; and the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Thurston County Superior Court affirmed the Board's order. Clallam County Superior Court dismissed the complaint for a constitutional and statutory writ after concluding that judicial review of the Board's decision offered Brinnon Group an adequate remedy to address its contentions that the County had violated the PEA. In this consolidated appeal, Brinnon Group appeals Thurston County Superior Court's affirmance of the Board's order and Clallam County Superior Court's dismissalof its complaint. We affirm the judgments of both superior courts.

FACTS

I. Background

¶ 2 The GMA limits urban growth to designated urban growth areas. See RCW 36.70A.110(1).² Participating counties, however,may allow an exception to this rule by authorizing an MPR. RCW 36.70A.360(1). An MPR is "a self-contained and fully integrated planned unit development, in a setting of significant natural amenities, with primary focus on destination resort facilities consisting of short-term visitor accommodations associated with a range of developed on-site indoor or outdoor recreational facilities." RCW 36.70A.360(1).

¶ 3 In 2002, Jefferson County adopted the Brinnon Subarea Plan, which identified over 300 acres south of Brinnon as a "conceptual" MPR location. Administrative Record (AR) at 197. Brinnon is an unincorporated village near Highway 101 about 35 miles south of Port Townsend. The County apparently incorporated the subarea plan into its comprehensive plan.

¶ 4 The acreage that the County identified in the Brinnon Subarea Plan covered much of Black Point, an area of land that extends into Hood Canal immediately south of Pleasant Harbor. The acreage included multiple properties and owners. In the County's view, Black Point's existing "recreational and visitor support activities," including two marinas, a recreational vehicle park, and other service-oriented businesses, made the area appropriate for an MPR. AR at 900.

¶ 5 The County's comprehensive plan and the county code include specific policies to guide MPR. development.See RCW 36.70A.360(4)(a) (requiring that counties adopt such policies before authorizing MPRs). Proposed MPR site owners must seek to amend the Comprehensive Plan Land Use Designations Map "prior to, or concurrent with an application for master plan review." AR at 371; See also Jefferson County Code (JCC) 18.15.126(3). Additionally, the amendment process should evaluate the proposal's probable significant adverse impacts "even if the proposal is to be developed in phases." AR at 371.

¶ 6 Significantly, for purposes of this appeal, the County's comprehensive plan also states that a comprehensive plan amendment must conform to the GMA's and the PEA's requirements. The County must process site-specific comprehensive plan amendments "pursuant to the procedures contained within [the PEA] and the Jefferson County development regulations." AR at 378.

II. Statesman's Application

¶ 7 In March 2006, the Statesman Group of Companies, Ltd. (Statesman) applied for a site-specific comprehensive plan amendment in order to develop an MPR on approximately 251 acres in the conceptual MPR area. Statesman's application included language for a proposed comprehensive plan amendment and detailed maps of specific portions of the proposed MPR.

A. Environmental Impact Statements

¶ 8 On September 5, 2007, the County issued a draft Environmental Impact Statement (draft EIS) for the MPR project. The draft EIS identified two components to Statesman's proposed MPR: (1) a 220+-acre golf course and resort east of Highway 101 and south of Black Point Road, and (2) a 37+-acre marina and a maritime village east of Highway 101 and north of Black Point Road. Under the proposal, Statesman would redevelop the northern portion of the existing marina into a "Maritime Village" with stores, restaurants, and a pedestrian promenade and would retain and refurbish the existing marina. AR at 1724. The draftEIS reduced the number of residential units from 1,270, the number in Statesman's application, to 890 units.

¶ 9 The draft EIS acknowledged that Statesman's proposed MPR fit within the subarea plan's conceptual MPR boundary. The draft EIS noted that the proposed MPR consisted of property that Statesman owned in addition to 15.2 acres of leased tidelands owned by the Department of Natural Resources (DNR).

¶ 10 Unlike Statesman's site-specific application, the draft EIS did not include a proposed text amendment to the County's comprehensive plan. Instead, the draft EIS included a section entitled "Summary of theProposal and Permitting Limitations," which stated in relevant part:

The drawings shown are conceptual, but any development must substantially reflect the orientation, layout, and composition of the proposal. Mandatory elements of any application shall include:

• Total acres

• Golf side—220± acres

• Marina side—37± acres upland and 15.2± acres tidelands

• Total units 890 project limits

• Golf side—739 units

• 52 staff apartments

• Not more than 68 units (10% of resort properties) as permanent residences, plus any units transferred from the marina side

• Not more than 40% of resort units for long-term tourist use (seasonal stays not to exceed six months)

• At least 50% of resort units in short-term tourist pool

• Marine [sic] side—no more than 151 units

• Not more than 16(10%) permanent residences (may be shifted to golf course side, but total permanent residences shall not exceed 84 units)

• Not more than 30% seasonal tourist, not to exceed six months• At least 60% in short-term tourist pool

• Impervious surface

• Golf side—20%

• Marina side—40%

AR at 1728.

¶ 11 The draft EIS also included three alternatives to Statesman's proposal in order to comply with SEPA. See RCW 43.21C.030(c)(iii). The "no action" alternative would permit Black Point to develop under current zoning regulations while the other two alternatives—the Brinnon Subarea Plan alternative and the hybrid alternative—would permit the MPR to develop on the full 310 acres that the subarea plan identified. Properties outside the areas of Statesman's proposal would develop at urban resort densities under the Brinnon Subarea Plan alternative and at rural residential densities under the hybrid alternative.

¶ 12 The County published a "Notice of Intent to Amend Comprehensive Plan" and ultimately received 413 written comments. AR at 1363. Of those individuals expressing an opinion, 127 favored the MPR and 112 opposed it. Brinnon Group submitted written comments in opposition, requesting that the County authorize fewer than 890 residential units, reduce the golf course from 18 to 9 holes, and preserve 50 percent (instead of 35 percent) of the land's natural space. Brinnon Group's comments addressed numerous other issues such as landscaping, tree removal, protecting water sources, and traffic.

¶ 13 On November 21, the County published a notice in the local newspaper that the Board of County Commissioners (BOCC) would hold a public hearing on December 3 to consider the MPR comprehensive plan amendment. The notice informed the public to contact the Community Development Department "[f]or further information." AR at 1555.

¶ 14 On November 27, the County issued the final Environmental Impact Statement (final EIS). The final EISincluded the County's responses to the written public comments.

B. Amendment to Comprehensive Plan

¶ 15 On November 28, a majority of the Planning Commission (the Commission) voted to recommend to the BOCC that it approve the proposed comprehensive plan amendment. The Commission's chairman signed the majority recommendation. The Commission's recommendation included seven conditions and a map that explicitly referenced these seven conditions in a descriptive box. The Commission's map divided the proposed MPR into four categories (marina, open space, resort district, and tourist commercial). The Commission's chairman and secretary did not sign the Commission's recommended map until January 8, 2008.

¶ 16 After a public hearing before the BOCC, County staff informed the BOCC in a Powerpoint presentation that MPR development would occur in five phases. In phaseone, the County would amend the comprehensive plan and create...