King County v. Washington State Boundary Review Bd. for King County
| Decision Date | 04 November 1993 |
| Docket Number | No. 59249-7,59249-7 |
| Citation | 122 Wn.2d 648,860 P.2d 1024 |
| Court | Washington Supreme Court |
| Parties | KING COUNTY, Respondent, v. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY; the City of Black Diamond; Black Diamond Associates; Palmer Coking Coal Company, Plum Creek Timber Company, Appellants, and James A. & Charlene Birklid; Richard Allen Enfield & Jane Doe Enfield, and their marital community; Bert Gibbons & Jane Doe Gibbons, and their marital community; Bryan L. Oster & Jane Doe Oster, and their marital community; and George K. Erickson & Jane Doe Erickson, and their marital community, Defendants. En Banc |
Christine O. Gregoire, Atty. Gen., Robert C. Kaufman, Special Asst., Bellevue, for appellant Boundary Review Bd.
Preston, Thorgrimson, Sidler, Gates & Ellis, Fredric C. Tausend, Eric S. Laschever, Seattle, Michael Reynolds, Asst. City Atty., Auburn, for appellants Black Diamond Associates, et al.
Cairncross & Hempelmann, P.S., John W. Hempelmann, Alan L. Wallace, Seattle, for appellant Plum Creek Timber Co.
Norm Maleng, Pros. Atty., Charles Maduell, Senior Deputy Pros. Atty., H. Kevin Wright, Deputy Pros. Atty., Seattle, for respondent.
This complex case involves the interaction and application of three of our major land-use regulatory statutes: the Growth Management Act, RCW 36.70A (GMA), the Boundary Review Board Act, RCW 36.93 (BRB Act), and the State Environmental Policy Act, RCW 43.21C (SEPA). Specifically at issue is the approval by the Boundary Review Board for King County (Board) of two proposed annexations by the City of Black Diamond (Black Diamond). Sitting in an appellate capacity, the Superior Court for King County reversed the Board's approval of the annexations, holding that the Board's decision was not supported by substantial evidence and was affected by error of law for failure to adequately consider the effect of the GMA. The Superior Court also held SEPA had been violated. Black Diamond, the Board, and various landowners (collectively "appellants") appealed.
We affirm the Superior Court's ruling with respect to compliance with SEPA and remand for the preparation of an environmental impact statement by Black Diamond as the lead agency for the proposed annexations. However, we reverse with respect to whether the Board's decision was supported by substantial evidence or affected by error of law. Consequently, the Board will not be required on remand to conduct its review procedure again in full; instead, it will be sufficient for the Board to conduct hearings and take evidence on the relevance, if any, of the environmental impact statement.
In April of 1990, the Legislature embarked upon an ambitious new land management initiative by enacting the Growth Management Act. See generally Laws of 1990, 1st Ex.Sess., ch. 17 (). The goal of the GMA was to promote "comprehensive land use planning" through cooperation between "citizens, communities, local governments, and the private sector". Laws of 1990, 1st Ex.Sess., ch. 17, § 1 (codified at RCW 36.70A.010).
One key element of the GMA is the designation of what are called "urban growth areas." Once established, these areas will serve as focal points for future urban development, thereby providing a rational framework for growth. Through this framework, the GMA seeks to reduce urban sprawl and other urban development problems. See Laws of 1990, 1st Ex.Sess., ch. 17, § 2 (codified at RCW 36.70A.020). Section 11 of the GMA requires certain counties, in cooperation with local cities and towns, to designate urban growth areas. Laws of 1990, 1st Ex.Sess., ch. 17, § 11 (codified at RCW 36.70A.110).
The process by which counties are to designate urban growth areas is carefully specified. Existing city and town boundaries are employed as the starting points for urban growth, and all lands within those boundaries are automatically designated as part of an urban growth area. Laws of 1990, 1st Ex.Sess., ch. 17, § 11(1) (codified at RCW 36.70A.110(1)). Additional unincorporated land is then added to the urban growth areas such that the areas are "sufficient to permit the urban growth that is projected to occur in the county for the succeeding twenty-year period." 1 Laws of 1990, 1st Ex.Sess., ch. 17, § 11(2) (codified at RCW 36.70A.110(2)). In order to assist counties in ascertaining the facts necessary to perform the second half of the designation process, cities and towns are to provide county planners with proposals regarding the additional areas necessary to permit the projected 20-year growth. Laws of 1990, 1st Ex.Sess., ch. 17, § 11(2) (codified at RCW 36.70A.110(2)). Conflicts between counties and local municipalities over the designation of urban growth areas may ultimately be resolved by the Department of Community Development. Laws of 1990, 1st Ex.Sess., ch. 17, § 11(2) (codified at RCW 36.70A.110(2)).
Once the urban growth areas have been designated for a particular county, a number of substantive restrictions are imposed upon growth in that county. For example, development regulations implementing the limitation of urban growth to urban growth areas must be developed within one year. RCW 36.70A.120. Most relevant to this case, cities and towns within a county with designated urban growth areas are prohibited from annexing territory outside of an urban growth area. Laws of 1990, 1st. Ex.Sess., ch. 17, §§ 30, 31 (codified at RCW 35.13.005, 35A.14.005).
King County is one of the counties required by the GMA to designate urban growth areas and has developed a number of policies and a schedule for accomplishing the designation within the statutory time frame. Clerk's Papers, at 464, 465-68. In addition, King County and its 31 incorporated municipalities have agreed to a Joint Regional Strategy for identifying and designating urban growth areas. Clerk's Papers, at 470-73.
On February 12, 1991, prior to the designation of the urban growth areas in King County, Black Diamond filed notices of intent with the Board for approval to annex certain properties southwest of its city limits. According to Black Diamond, its interest in annexing the properties in question was in protecting the Rock Creek Drainage Basin, the watershed in which Black Diamond is located. The city was apparently concerned that septic tank development under county jurisdiction could jeopardize the Rock Creek Basin and wished to ensure that any development would be attached to the Black Diamond sewer system.
Black Diamond had historical reason for its concern, since the city has had a particularly checkered record in regard to the disposal of municipal waste. Black Diamond's mayor, Howard Botts, described the city's experience with such waste as an "environmental, administrative, and economic nightmare". Clerk's Papers (Testimony of Mayor Howard Botts before the Board), at 136.
Black Diamond experienced a failure of its septic system drain fields in the late 1970s. When the drain fields failed, Rock Creek became contaminated and ultimately so did Lake Sawyer, the body of water into which Rock Creek runs. With the help of the United States Environmental Protection Agency, Black Diamond responded to the septic failure by constructing a new waste water treatment facility, which included dispersion of effluent into a 132 acre marsh. While the new treatment facility solved the septic problem, it created new problems in Lake Sawyer because the effluent marsh failed to absorb the nutrients contained in the treated waste water. As a result, Lake Sawyer began to erupt in periodic algae blooms. To solve this new problem, Black Diamond constructed a sewer line to the Metro waste disposal system, also with the assistance of the United States Environmental Protection Agency.
The two annexations proposed by Black Diamond include largely uninhabited property within the Rock Creek Drainage Basin, southwest of the existing city borders. The first proposed annexation includes the properties of a number of landowners who are now appellants before this court. These include: Plum Creek Timber Company, L.P. (Plum Creek), James and Charlene Birklid, Palmer Coking Coal Company (Palmer Coking), and Black Diamond Associates. 2 The second annexation proposal consists of a quarter section of land owned entirely by Palmer Coking.
The day after filing its notices of intent with the Board, Black Diamond, acting in its capacity as lead agency for the proposed annexations, issued a Determination of Non-Significance (DNS) for purposes of compliance with SEPA. Clerk's Papers, at 1438, 1453. 3 The DNS was based primarily on certain environmental checklists prepared by Black Diamond Associates and Palmer Coking for the city. See Clerk's Papers (Environmental Checklists), at 1440, 1456. These checklists indicate there is no existing proposal to develop the annexation properties. Palmer Coking's checklist, however, indicates the preferred use of its property is "Single family residential", and an alternative use is "Residential/Golf Course Community". Clerk's Papers, at 1456. Black Diamond Associates' checklist noted an intent to evaluate the possibility of a "golf course related development" or gravel excavation. Clerk's Papers, at 1440. The record does not reveal that any of the other property owners submitted an environmental checklist to Black Diamond.
King County appealed the DNS to the Black Diamond City Council, but the appeal was denied.
On March 22, 1991, while the DNS appeal was pending, the King County Council enacted Ordinance No. 9849, entitled "An Ordinance designating urban growth areas on an interim basis for purposes of implementing SHB 2929, the Growth Management Act, on an emergency basis...." King County Ordinance No. 9849 (Ordinance 9849). King County was concerned that continuing annexations would undermine the process for designating urban growth areas under the GMA and...
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