Nor'West v. W. Wash. Growth Mgmt. Hearings Bd.
| Decision Date | 03 February 2015 |
| Docket Number | No. 45563–3–II.,45563–3–II. |
| Citation | 342 P.3d 351 |
| Court | Washington Court of Appeals |
| Parties | CONCRETE NOR'WEST, a division of Miles Sand & Gravel Company; and 4M2K, LLC, Appellants, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, Respondent. |
OPINION TEXT STARTS HERE
Affirmed. Margaret Yvonne Archer, Attorney at Law, Tacoma, WA, for Appellants.
Karen Frakes, Whatcom Co. Pros. Ofc., Bellingham, WA, David Scott Mann, Gendler & Mann LLP, Seattle, WA, for Respondent.
Nancy Bainbridge Rogers, Cairncross & Hempelmann PS, Seattle, WA, for Amicus Curiae on behalf of Washington Aggregates & Concrete Association, Inc.
John P. Ahlers, Lindsay K. Taft, Ahlers & Cressman PLLC, Seattle, WA, for Amicus Curiae on behalf of Associated General Contractors of Washington.
Dionne Maren Padilla–Huddleston, Office of the Attorney General, Seattle, WA, for Other Parties.
¶ 1 Concrete Nor'West, a division of Miles Sand and Gravel Company, and 4M2K LLC (collectively, CNW) appeal a superior court's affirmance of a final decision and order from the Western Washington Growth Management Hearings Board (the Board). The Board found no violation of Washington's Growth Management Act (GMA), chapter 36.70A RCW, in Whatcom County's denial of a proposed amendment to its comprehensive plan and zoning map designating certain property as mineral resource land (MRL). CNW argues that the GMA, Whatcom County's comprehensive plan, and the Whatcom County Code (WCC) collectively required adoption of the amendment. Because we agree with the Board that they did not, we affirm.
¶ 2 Concrete Nor'West operates a gravel mine on land in Whatcom County. Pursuant to the WCC, CNW applied to amend Whatcom County's comprehensive plan and its zoning map to expand a MRL overlay onto a parcel adjacent to its mine and to re-designate that parcel from commercial forestry land to MRL.1
¶ 3 Staff at Whatcom County Planning and Development Services (planning staff) processed CNW's application and determined that the parcel at issue satisfied the MRL designation criteria found in the County's comprehensive plan. After analyzing the criteria prescribed in the WCC for considering an amendment to the comprehensive plan and determining that the amendment satisfied them, the planning staff recommended approving CNW's request. After a hearing, Whatcom County's Planning Commission concurred with the planning staff, recommended adopting the proposal, and forwarded CNW's application to the Whatcom County Council for consideration.
¶ 4 CNW's proposal did not command a majority of the Council. Three members voted to pass the proposed amendment, three voted to reject it largely based on concerns about water quality and the effects of future mining on nearby agricultural lands, and one abstained. Because the proposed amendment failed to garner a majority of the Council, it was not adopted.
¶ 5 CNW petitioned the Board for review of the Council's failure to pass the proposed amendment. CNW argued that because RCW 36.70A.120, part of the GMA, requires counties and cities to “perform [their] activities ... in conformity with [their] comprehensive plan[s],” and because the parcel met the comprehensive plan's criteria for designation as MRL, the Council had a duty under the comprehensive plan and the GMA to pass the proposed amendment and re-designate the land. Administrative Record (AR) at 9– 10. The Board disagreed, stating that “the fatal flaw in Petitioners' argument is the lack of language in any of the cited Goals/Policies or the designation criteria that require the County to designate land as MRL when the designation criteria are met.” AR at 1186 (footnote omitted). Because the Council had no duty to designate the land by adopting the amendment, the Board held that no violation of the GMA had occurred and that it lacked the power to grant CNW relief. Therefore, it dismissed CNW's petition for review with prejudice. AR at 1187–88 ().
¶ 6 CNW petitioned for superior court review of the Board's decision under the Administrative Procedure Act, chapter 34.05 RCW (Act). The superior court affirmed the Board, and CNW appealed.
¶ 7 The legislature has charged the Board “with adjudicating GMA compliance, and, when necessary, with invalidating noncompliant comprehensive plans and development regulations.” King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wash.2d 543, 552, 14 P.3d 133 (2000). By statute, the Board's review is deferential and it must
“find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].”
King County, 142 Wash.2d at 552, 14 P.3d 133 (quoting RCW 36.70A.320(3)) (alteration in original). An action by a state agency, county, or city is clearly erroneous if “the Board ... [is] ‘left with the firm and definite conviction that a mistake has been committed.’ ” King County, 142 Wash.2d at 552, 14 P.3d 133 (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wash.2d 179, 201, 849 P.2d 646 (1993)).
¶ 8 We review a Board decision by applying the standards of chapter 34.05 RCW directly to the record before the Board, sitting in the same position as the superior court. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998). We “review[ ] the Board's legal conclusions de novo,” but, because of its expertise in administering the GMA, we accord substantial weight to the Board's interpretation of its provisions. King County, 142 Wash.2d at 553, 14 P.3d 133. CNW bears the burden of showing the invalidity of the Board's decision, and thus, as relevant here, the burden of showing that the Board “erroneously interpreted or applied the law.” Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 367, 376–77, 259 P.3d 227 (2011) (citing RCW 34.05.570(1)(a), (3)(d)).
¶ 9 Among the GMA's core requirements is the mandate that counties and cities subject to it “adopt comprehensive growth management plans and development regulations in accordance with the Act's provisions.” King County, 142 Wash.2d at 546, 14 P.3d 133. Whatcom County is subject to the GMA. See RCW 36.70A.040(1). For jurisdictions subject to it, the GMA requires periodic reviews and updates to comprehensive plans and development regulations and authorizes the consideration of comprehensive plan amendments no more than once a year, with exceptions. RCW 36.70A.130.
¶ 10 The GMA prescribes 13 exclusive goals that cities and counties must use “for the purpose of guiding the development of comprehensive plans.” RCW 36.70A.020. Two of these goals are especially pertinent to the present appeal: to “[m]aintain and enhance natural resource-based industries,” RCW 36.70A.020(8), and to “[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water.” RCW 36.70A.020(10).
¶ 11 As CNW notes, the GMA sets out specific procedures for accomplishing its goal of maintaining and enhancing natural resource-based industries. First, the Act requires cities and counties to designate “where appropriate ... [m]ineral resource lands that are not already characterized by urban growth and that have long-term significance for the extraction of minerals.” RCW 36.70A.170(1)(c). Next, RCW 36.70A.060 (1) requires cities and counties within its scope to “adopt development regulations ... to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170.” The GMA further requires that cities and counties operating under its strictures periodically review their mineral resource designations in light of new information concerning mineral deposits and certain new or modified model regulations. RCW 36.70A.131.
¶ 12 The Whatcom County comprehensive plan sets out eight goals and associated policies for “guid[ing] Whatcom County in land use decisions involving lands where mineral resources are present.” AR at 144. Of these, Goal 8J states an intent to
[s]ustain and enhance, when appropriate, Whatcom County's mineral resource industries, support the conservation of productive mineral lands, and discourage incompatible uses upon or adjacent to these lands.
AR at 146. Goal 8K contains the County's aspiration to
[e]nsure that mineral extraction industries do not adversely affect the quality of life in Whatcom County, by establishing appropriate and beneficial designation and resource conservation policies, while recognizing the rights of all property owners.
AR at 146. Goal 8L declares Whatcom County's intent to
[a]chieve a balance between the conservation of productive mineral lands and the quality of life expected by residents within and near the rural and urban zones of Whatcom County.
AR at 147. Goal 8N contains Whatcom County's aim to
[m]aintain the conservation of productive mineral lands and of productive forestry lands within or near the forestry zones of Whatcom County.
AR at 149. Finally, Goal 8P expresses the County's intent to
[d]esignate Mineral Resource Lands [MRLs] containing commercially significant deposits throughout the county in proximity to markets in order to avoid construction aggregate shortages, higher transport costs, future land use conflicts and environmental degradation. Balance MRL designations with other competing land uses and resources.
AR at 149. Goal 8P is implemented by Policy 8P–1, which states:
Seek to designate 50 year supply of...
To continue reading
Request your trial