King County v. Central Puget Sound Growth Management Hearings Bd.
| Decision Date | 10 June 1999 |
| Docket Number | No. 66904-0,K-2,66904-0 |
| Citation | 979 P.2d 374,138 Wn.2d 161 |
| Court | Washington Supreme Court |
| Parties | KING COUNTY, Respondent, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, an agency of the State of Washington; Vashon-Maury Island Community Council; Citizens for Rural Oriented Government; Duwamish Valley Neighborhood Preservation Coalition; Paul P. Carkeek; Maxine Keesling; Tolt Community Club; Mary O'Farrell, Respondents, Friends of the Law, Petitioner, and Bear Creek Citizens for Growth Management; Port Blakely Tree Farms; Quadrant Corporation; City of Snoqualmie; King County School Coalition; Union Hill Water Association; Preston Industrial Associates;Corporation; and Washington State School Directors' Association, Respondents. Friends of the Law, a Washington non-profit corporation; and Coalition for Public Trust, a Washington non-profit corporation, Petitioners, v. King County; Port Blakely Tree Farms; Lake of the Woods Homeowners Association; and Bear Creek Citizens for Growth Management, Respondents. Friends of the Law, a Washington non-profit corporation; and Coalition for Public Trust, a Washington non-profit corporation, Petitioners, v. King County; Port Blakely Tree Farms, a Washington limited partnership; Quadrant Corporation; Central Puget Sound Growth Management Hearings Board, an agency of the State of Washington; Vashon-Maury Island Community Council; Citizens for Rural Oriented Government; Duwamish Valley Neighborhood Preservation Coalition; Paul P. Carkeek; Maxine Keesling; Tolt Community Club; Mary O'Farrell; Bear Creek Citizens for Growth Management; City of Snoqualmie; King County School Coalition; Union Hill Water Association; Preston Industrial Associates; Corporation; and Washington State School Directors' Association, Respondents. |
Bricklin & Gendler, Michael Gendler, David Bricklin, Seattle, for Petitioner
Law Offices of J. Richard Aramburu, Jeffrey Eustis, Norm Maleng, King County Prosecutor, H. Kevin Wright, Deputy, Michael
Sinsky, Deputy, Eric Laschever, Davis, Wright & Tremaine, Thomas A. Goeltz, Hall Baetz, Hillis, Clark & Martin, Richard Wilson, Kristina Dalman, George Kresovich, Brian Todd, Charles Maduell, Alan Wallace, Seattle, for Respondents
Friends of the Law and the Coalition for Public Trust challenge a Court of Appeals decision affirming the validity of the King County Growth Management Plan's designation of 2,500 acres of undeveloped land between Redmond and Duvall as an Urban Growth Area. Friends also objects to King County's issuance of project permits for the area. We affirm the Court of Appeals' denial of Friends' permit challenges. However, we reverse the Court's approval of the Bear Creek Urban Growth Area designation and remand the matter to the Central Puget Sound Growth Management Hearings Board for a determination of whether the Urban Growth Area designation complies with the Growth Management Act.
These consolidated cases arise out of King County's (the County) designation of the Bear Creek area as urban in its Growth Management Plan, and the County's subsequent approval of project permits for the Bear Creek Urban Planned Development sites. Bear Creek is an undeveloped area between Redmond and Duvall that straddles a wooded plateau above the Snoqualmie Valley. Petitioners are Friends of the Law and the Coalition for Public Trust (Friends), two citizens' groups who oppose the Bear Creek project. Respondents are King County and the Quadrant Corporation, the owner of the Bear Creek site. 1
The issues presented to this court stem from the County's approval of the Bear Creek Development. However, each of the three consolidated cases has a unique procedural history. In order to understand the legal questions presented by each of the three cases, we will first discuss the urban growth designation of the area in general. We will then separately explain the foundation of each lawsuit.
The Legislature adopted the Growth Management Act (GMA) to control urban sprawl and to ensure that "citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning." RCW 36.70A.010. The GMA requires that counties adopt a Comprehensive Growth Management Plan (comprehensive plan) which, among other things, designates Urban Growth Areas (UGAs). UGAs are regions within which urban growth is encouraged and outside of which growth can occur only if it is not urban in nature. RCW 36.70A.110(1).
The first step in the process of establishing a comprehensive plan is for a county to adopt county-wide planning policies (CPPs). A CPP is a written policy statement created by county municipalities and used "solely for establishing a county-wide framework from which county and city comprehensive plans are developed." RCW 36.70A.210(1). CPPs ensure that city and county comprehensive plans are consistent with one another with regard to issues of regional significance, and thus CPPs must address policies for designation of UGAs, as well as policies for providing urban services, transportation, housing, and economic development. RCW 36.70A.210(3).
The GMA expressly provides for "early and continuous public participation in the development and amendment of comprehensive land use plans." RCW 36.70A.140. Citizens who attend and participate in the comprehensive plan hearings have standing to challenge provisions later adopted in a county's comprehensive plan. However, the GMA does not provide for public challenge to CPPs. Only cities or the governor may appeal a CPP to the Central Puget Sound Growth Management Hearings Board (the Board); citizens may not appeal. RCW 36.70A.210(6).
In 1991, King County and its cities established CPPs. The CPPs consisted of written policies and maps in which the County's urban growth boundaries were drawn. Policy U-201 designated the Bear Creek Urban Planned Development site as a UGA. A CPP map also portrayed Bear Creek as a UGA. Neither the governor nor the cities within King County challenged Bear Creek's UGA designation in the CPPs.
In 1994, the County approved its comprehensive plan. The plan contained provisions for regulating growth, transportation and critical areas, and formally designated UGAs for King County. The plan adopted the CPPs' UGA provisions, explicitly designating the Bear Creek area as suitable for urban growth. Nine different developers and citizens' groups challenged provisions in the comprehensive plan. Petitioners in this case, Friends, appealed the Bear Creek UGA designation to the Board. Friends alleged that this "island" UGA did not meet the requirements set forth in the GMA for establishing UGAs.
The Board consolidated the petitions for review filed by the developers and citizens' groups and issued a Final Decision and Order in October 1995. See Vashon-Maury v. King County, Final Decision and Order, Central Puget Sound Growth Management Hearing Board (hereinafter CPSGMHB), No. 95-3-0008 (1995). The Order ruled on almost 60 different issues relating to the County's adoption of its comprehensive plan. In regard to Friends' petition, the Board held that the Bear Creek UGA was valid because the uncontested CPPs required that the County designate the area as urban. The Board concluded that because the UGA designation was mandated by the CPPs, which were not challenged and thus presumed valid, the UGA designation as adopted in the comprehensive plan must also be presumed valid and was immune from challenge. However, the Board observed that the undeveloped, unincorporated Bear Creek site, two miles from any other urban area, did not appear to meet the GMA criteria for urban growth designation. "[B]ut for the fact that the CPPs made the County do it and those CPPs were not challenged, the Board would have serious problems with the Bear Creek UPDs being designated within a UGA." Id. at 38. One member of the three member board dissented.
Two months later, in its Order on Motions to Reconsider and Motion to Correct, the Board reversed itself. The Board reiterated that the Bear Creek UGA did not meet any of the criteria required by the GMA, but this time held that the CPPs did not require the comprehensive plan to designate Bear Creek as a UGA. The Board found that the Bear Creek UGA designation contradicted other CPPs that discussed criteria for establishing UGAs. The Board reasoned that because the CPPs were internally inconsistent, they must be considered precatory, rather than directive. The Board concluded that:
[S]omething as incongruous as [the Bear Creek UGA designation] is simply an inconsistency with the general rule.... When such inconsistencies exist, the CPPs send mixed messages, subject to different interpretations. In short, they are ambiguous. The resulting effect is that these CPPs cannot be a directive and rigid template binding the Council's future exercise of its discretion in adopting its Plan and F[inal] UGA.
Because the CPPs were internally inconsistent, the Board explained, they could not be directive and thus were open to citizen appeal when incorporated into the comprehensive plan. Addressing the merits of Friends' challenge to Bear Creek, the Board entered a finding of noncompliance and remanded to the County with instructions to delete the Bear Creek UGA, to justify it, or to redesignate it as a Fully Contained Community under RCW 36.70A.350. The Board declined to enter an order of invalidity for the Bear Creek UGA. 2Case # 39333-2-I: "The CPP Case"
While King County began the work necessary to comply with the Board's remand order, it simultaneously instigated an Administrative Procedure Act (APA) appeal of that order to the King County Superior Court. The County maintained that the Board erred when it held...
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