Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd.

• Decision Date: 10 March 2011
• Docket Number: No. 38017–0–II.,38017–0–II.
• Citation: 255 P.3d 696,160 Wash.App. 250
• Court: Washington Court of Appeals
• Parties: KITSAP ALLIANCE OF PROPERTY OWNERS, William Palmer and Ron Ross, Appellants,v.CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, Futurewise, Hood Canal Environmental Council, Kitsap Citizens for Responsible Planning, Kitsap County, Judith Krigsman, Jim Trainer, West Sound Conservation Council, Respondents.

160 Wash.App. 250

255 P.3d 696

KITSAP ALLIANCE OF PROPERTY OWNERS, William Palmer and Ron Ross, Appellants,

v.CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, Futurewise, Hood Canal Environmental Council, Kitsap Citizens for Responsible Planning, Kitsap County, Judith Krigsman, Jim Trainer, West Sound Conservation Council, Respondents.

No. 38017–0–II.

Court of Appeals of Washington, Division 2.

Jan. 4, 2011.Opinion Amended and Ordered Published in Full March 10, 2011.

Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, for Appellants.Martha Patricia Lantz, City of Tacoma, Office of the City Attorney, Tacoma, WA, Lisa J. Nickel, Kitsap County Prosecuting Attys. Office, Port Orchard, WA, Tim Trohimovich, Futurewise, Robert A. Beattey, Attorney at Law, Seattle, WA, for Respondents.KORSMO, J.

[160 Wash.App. 255] ¶ 1 In the initial consideration of this appeal, this court concluded that it was required to follow the result of an inconclusive opinion of the Washington Supreme Court and directed that Kitsap County plan for critical areas¹ under the Shorelines Management Act of 1971(SMA) ² rather than the Growth Management Act (GMA).³ The Washington Legislature promptly enacted amendments clarifying that the GMA was to regulate critical areas until such time as SMA plans were updated and also directed that the amendments be applied retroactively.

¶ 2 The Washington Supreme Court granted Kitsap County's petition for review of the original ruling and remanded the case to this court for consideration in light of the new legislation. We conclude that the amendments are retroactive and apply to this case. We reverse our previous decision and uphold Kitsap County's critical area ordinance (CAO).

PROCEDURAL HISTORY ⁴

¶ 3 This case has its beginning in Kitsap County's efforts to update the CAO component of its GMA-required comprehensive plan. The nonprofit Kitsap Alliance of Property Owners (KAPO) and two property owners challenged a 35–foot marine shorelines buffer contained in the updated CAO. They argued before the Central Puget Sound Growth Management Hearings Board (Board) that the buffer was excessive. Respondent Hood Canal Environmental Council (Hood Canal) and other parties argued that the buffers were inadequate. The Board rejected KAPO's challenge and sent the case back to the county with directions to increase the buffer zone. Kitsap County amended the CAO by increasing the buffer zone to 50 feet in urban shoreline areas and 100 feet in rural and semirural areas. The Board approved the amended CAO.

¶ 4 KAPO challenged the two Board rulings in the Kitsap County Superior Court. That body upheld the Board decisions. KAPO then appealed to this court.

¶ 5 This court reversed. Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 152 Wash.App. 190, 217 P.3d 365 (2009) ( KAPO I). The pivotal issue in the case concerned whether the GMA or the SMA applied to the CAO. Specifically, the question was whether the GMA regulated critical areas in shoreland regions subject to both acts or whether the SMA regulated these areas. Id. at 193–195, 217 P.3d 365. A 2003 amendment to both acts that had attempted to clarify when each act would apply to lands within the purview of both created this issue. Id. The Washington Supreme Court had previously faced the same issue in Futurewise v. Western Washington Growth Management Hearings Board, 164 Wash.2d 242, 189 P.3d 161 (2008).

¶ 6 The Futurewise court issued two opinions that represented the views of four justices each. The lead opinion of Justice James Johnson concluded that critical area planning could only be conducted under the SMA. Id. at 245–247, 189 P.3d 161. Justice Madsen concurred only in the result. Id. at 248, 189 P.3d 161. Justice Chambers' dissenting opinion argued that GMA standards applied until such time as the local SMA master plan was updated. Id. at 248–251, 189 P.3d 161.

¶ 7 This court concluded in KAPO I that it was bound by the outcome of Futurewise since it presented the same issue and there was no rationale that had obtained support from a majority of the court. 152 Wash.App. at 197–198, 217 P.3d 365. Accordingly, we reversed the trial court and directed that Kitsap County plan for critical areas under the SMA. Id. at 198, 217 P.3d 365. We also noted the difficulties this created for local governments and urged the legislature to clarify its intent. Id.

¶ 8 The legislature promptly responded in its next session and enacted Laws of 2010, chapter 107. That legislation took effect immediately upon signature by the Governor on March 18, 2010. Id. at § 6. The legislation also stated that it was retroactive to July 27, 2003. Id. at § 5.

¶ 9 Soon thereafter the Washington Supreme Court granted Kitsap County's petition for review and remanded the case with directions that this court consider the effect of the new legislation. Order, Kitsap Alliance of Property Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 168 Wash.2d 1031, 231 P.3d 166 (2010). We ordered briefing concerning the new legislation and subsequently heard argument.

ANALYSIS

¶ 10 Kitsap County and Hood Canal ask that the legislation be given full retroactive effect. KAPO contends that doing so would infringe on the separation of powers and create problems with vested development rights. It also urges that we not give retroactive effect to the statute because ex post facto punishments are prohibited by our constitution and because the legislation is inconsistent with existing CAOs.

¶ 11 Chapter 107 substantively amends a GMA provision that referenced the SMA in the context of shoreline regulations. After removing some of the former language, the new version of the statute provides in part, that

development regulations adopted under this chapter apply to protect critical areas within shorelines of the state until the department of ecology approves one of the following: A comprehensive master program update, ... a segment of a master program relating to critical areas, ... or a new or amended master program.

Laws of 2010, ch. 107, § 2 (amending RCW 36.70A.480).

¶ 12 In essence, this provision rejects the lead Futurewise opinion in favor of the dissenting opinion's view of the interaction of the two acts. Although the legislative intent section does not address any court cases by name, it notes that the 2003 amendments

(1) ... have been the subject of differing, and occasionally contrary, legal interpretations. This act is intended to affirm and clarify the legislature's intent relating to the provisions of chapter 321, Laws of 2003.

(2) The legislature affirms that development regulations adopted under the growth management act to protect critical areas apply within shorelines of the state as provided in section 2 of this act.

(3) The legislature affirms that the adoption or update of critical area regulations under the growth management act is not automatically an update to the shoreline master program.

(4) The legislature intends for this act to be remedial and curative in nature, and to apply retroactively to July 27, 2003.

Id. at § 1.

¶ 13 Typically, new legislation, including amendments to existing law, is given prospective application unless there is clear intent to apply the law retroactively. Howell v. Spokane & Inland Empire Blood Bank, 114 Wash.2d 42, 47, 785 P.2d 815 (1990). Remedial and procedural statutes are often retroactive. In re Pers. Restraint of Mota, 114 Wash.2d 465, 471, 788 P.2d 538 (1990). A legislative decision to apply a law retroactively will be honored unless there is a constitutional impediment to doing so. Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wash.2d 284, 302–303, 174 P.3d 1142 (2007).

¶ 14 Here, legislative intention that the 2010 amendments apply retroactively is clearly stated in two sections of the statute. Thus, unless the constitution prohibits that decision, the new amendments should be applied to this case. Id. We therefore turn our attention to KAPO's arguments against retroactive application.

Separation of Powers

¶ 15 KAPO initially argues that the amendments cannot be retroactive because they contravene judicial and quasi-judicial decisions, implicating the separation of powers doctrine. As relevant here, the separation of powers doctrine prohibits the legislature from retroactively changing the judicial interpretation of a statute. E.g., Farm Bureau Fed'n, 162 Wash.2d at 304, 174 P.3d 1142; State v. Varga, 151 Wash.2d 179, 191, 86 P.3d 139 (2004). KAPO contends that the legislature retroactively changed judicial construction of the 2003 statute. We disagree.

¶ 16 Once the Washington Supreme Court has authoritatively construed a statute, the legislation is considered to have always meant that interpretation. E.g., Johnson v. Morris, 87 Wash.2d 922, 927–928, 557 P.2d 1299 (1976); Yakima Valley Bank & Trust Co. v. Yakima County, 149 Wash. 552, 556, 271 P. 820 (1928).

¶ 17 As we discussed in KAPO I, there was no majority interpretation of the 2003 amendments discussing the interplay of the SMA and GMA. KAPO I, 152 Wash.App. at 196–197, 217 P.3d 365. In Futurewise, the eight justices who expressed an opinion on the topic were evenly divided. In that circumstance, this court determined that it had to follow the result of Futurewise because there was no majority rationale. KAPO I at 197–198, 217 P.3d 365.⁵ Thus, neither Futurewise nor KAPO I authoritatively construed the 2003 amendments. Rather, the Futurewise court was evenly divided in its construction of the statute and this court in KAPO I believed itself bound by the outcome of that case rather than the reasoning of either Futurewise opinion. Other courts likewise have concluded that Futurewise is not precedential. Lauer v. Pierce County, 157 Wash.App. 693, 701, 238 P.3d 539 (2010); Kailin v. Clallam County, 152 Wash.App. 974, 985, 220 P.3d 222 (2009).

¶ 18 An opinion lacking precedential value is the same as the court never having...