Planning v. Whatcom County

• Decision Date: 10 May 2010
• Docket Number: No. 63646-4-I.,63646-4-I.
• Citation: 155 Wash.App. 937,230 P.3d 1074
• Court: Washington Court of Appeals
• Parties: CITIZENS FOR RATIONAL SHORELINE PLANNING, a Washington Nonprofit Corporation, and Ronald T. Jepson, an individual, Appellants,andBuilding Industry Ass'n of Whatcom County, Intervenor-Plaintiff,v.WHATCOM COUNTY, a municipal corporation of the State of Washington, the Whatcom County Council, and the State of Washington, Department of Ecology, Respondents.

155 Wash.App. 937

230 P.3d 1074

CITIZENS FOR RATIONAL SHORELINE PLANNING, a Washington Nonprofit Corporation, and Ronald T. Jepson, an individual, Appellants,andBuilding Industry Ass'n of Whatcom County, Intervenor-Plaintiff,v.WHATCOM COUNTY, a municipal corporation of the State of Washington, the Whatcom County Council, and the State of Washington, Department of Ecology, Respondents.

No. 63646-4-I.

Court of Appeals of Washington,

Division 1.

May 10, 2010.

Peter Buck, The Buck Law Group, Matthew Stock, Skellenger Bender, Seattle, WA, for Appellants.

Charles Klinge, Samuel Rodabough, Groeen Stephens & Klinge LLP, Bellevue, WA, for Building Industry Association of WA.

Kelly Wood, Katharine Shirey, Olympia, WA, for WA State Department of Ecology.

Karen Frakes, Whatcom Co. Pros. Ofc., Royce Scott Buckingham, Whatcom County Prosc. Atty. Ofc., Bellingham, WA, for Whatcom County & Whatcom County Council.

DWYER, C.J.

¶ 1 At issue in this appeal from the superior court's CR 12(b)(6) order of dismissal is whether shoreline master programs (SMPs), developed pursuant to the Shoreline Management Act of 1971, chapter 90.58 RCW, are subject to RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development. Because of the pervasive and necessary involvement of the state, through the Department of Ecology, in the development, review, and approval of SMPs, the superior court correctly ruled that RCW 82.02.020's prohibitions do not apply to these regulations. Accordingly, we affirm.

I

¶ 2 Whatcom County began amending its SMP in 2004, as required by the Shoreline Management Act. RCW 90.58.080(2)(a)(i). The county submitted its proposed SMP revisions to the Department of Ecology for review and approval. Ecology provided the county with 13 pages of mandatory revisions to the proposed SMP and two pages of recommended changes. Whatcom County accepted the changes and, on August 8, 2008, Ecology notified the county that it had approved the proposed SMP as modified. Ecology's final approval made Whatcom County's SMP effective.

¶ 3 Citizens for Rational Shoreline Planning (CRSP) then sued Whatcom County alleging, among other things, that several provisions in the newly-adopted SMP violated RCW 82.02.020. Ecology was allowed to intervene as a defendant.¹

¶ 4 In particular, two of the SMP's final provisions are at issue in this lawsuit. First, the buffer zone provisions applicable to shoreline lots are the same as those set forth in the Whatcom County Critical Areas Ordinance, chapter 16.16 Whatcom County Code (WCC), in effect at the time the SMP was adopted. Whatcom County Ordinance 2007-017, § 23.90.13.B; WCC 23.90.13.C (SMP Table). Whatcom County's critical areas ordinance imposes buffer zones of 150 feet from shoreline streams, WCC 16.16.740(B), 150 feet from the marine shore, WCC 16.16.740(C), 100 feet from lakes of over 20 acres, WCC 16.16.740(C), and between 25 to 300 feet from wetlands, WCC 16.16.630. Second, the SMP limits the buildable area of non-conforming lots to not more than 2,500 square feet. WCC 23.50.07(K)(2).

¶ 5 Ecology and Whatcom County moved to dismiss, pursuant to CR 12(b)(6), CRSP's claim alleging that the SMP violated RCW 82.02.020. The basis for this motion was the contention that CRSP failed to state a claim because the SMP was a product of state regulatory action, to which RCW 82.02.020 does not apply. The trial court granted the motion to dismiss. CRSP moved for reconsideration, which the trial court denied. In so ruling, the trial court stated that there was a “pervasive level of state involvement in and control over the entire SMP process.”

¶ 6 CRSP appeals.

II

¶ 7 As this appeal is from an order of dismissal entered pursuant to CR 12(b)(6) and concerns a pure question of law, we review de novo the trial court's decision. Rodriguez v. Loudeye Corp., 144 Wash.App. 709, 717, 189 P.3d 168 (2008).

III

¶ 8 CRSP contends that Whatcom County's SMP provisions requiring various buffers from shorelines and restricting the building area of non-conforming lots to no more than 2,500 square feet are indirect taxes, fees, or charges imposed on development by a local government and, as such, are prohibited by RCW 82.02.020. We disagree.

¶ 9 RCW 82.02.020 prohibits municipalities from imposing direct or indirect taxes, fees, or charges on development.² This statutory prohibition is not limited to the extraction of monetary payments. See, e.g., Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 49 P.3d 867 (2002) (30 percent of land set aside for open space); Trimen Dev. Co. v. King County, 124 Wash.2d 261, 877 P.2d 187 (1994) (dedication or reservation of land for recreation); Citizens' Alliance for Prop. Rights v. Sims, 145 Wash.App. 649, 187 P.3d 786 (2008) (prohibition on clearing more than 35 to 50 percent of property). The statutory prohibition is intended “ ‘to stop the imposition of general social costs on developers, while at the same time allowing the continued imposition of costs that are directly attributable to the development.’ ” Isla Verde, 146 Wash.2d at 760 n. 14, 49 P.3d 867 (quoting Southwick, Inc. v. City of Lacey, 58 Wash.App. 886, 893-94, 795 P.2d 712 (1990)). By its plain terms, the statute does not apply to actions taken by the state government. Humbert v. Walla Walla County, 145 Wash.App. 185, 193, 185 P.3d 660 (2008) ( “[ RCW 82.02.020] by its terms speaks only to the local political subdivisions of the state.”).

¶ 10 The Shoreline Management Act (SMA) was enacted in 1971 to facilitate protection of our state's shorelines.³ All development on the shorelines of this state must be conducted in conformance with the SMA. Buechel v. Dep't of Ecology, 125 Wash.2d 196, 203, 884 P.2d 910 (1994). In enacting the SMA, the legislature recognized that “the shorelines of the state are among the most valuable and fragile of its natural resources” and that “ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in the management and development of the shorelines of the state.” RCW 90.58.020. Accordingly, “[t]he SMA is to be broadly construed in order to protect the state shorelines as fully as possible.” Buechel, 125 Wash.2d at 203, 884 P.2d 910.

¶ 11 The SMA requires that shoreline management and planning of development near shorelines be coordinated between the state government and local governments. RCW 90.58.020, .050. The SMA delineates particular elements and specific provisions that local governments and Ecology must include within SMPs. See, e.g., RCW 90.58.100(2) (listing elements that shall be included within SMPs), .100(5) (requiring SMPs to contain provisions for conditional use permits and variances), .100(6) (requiring SMPs to contain standards for protecting single family residences), .150 (selected timber harvesting), .320 (height limitation). Although the SMA directs each local government to develop and administer its SMP, the state has an extensive, statutorily-mandated role in the development and administration of SMPs.

¶ 12 Most significantly, a SMP becomes effective only upon approval by Ecology. RCW 90.58.090(1). Moreover, Ecology is to approve a SMP only if it determines the SMP to be consistent with both the SMA and certain guidelines developed by Ecology. RCW 90.58.090(3)-(5). In the event that a local government declines, refuses, or fails to develop an adequate SMP, Ecology is authorized to develop and impose a SMP in the local government's stead. RCW 90.58.070(2), .090(5). All SMPs approved or adopted by Ecology become elements of the official state master program, RCW 90.58.030(3)(c), which “constitute[s] use regulations for the various shorelines of the state.” RCW 90.58.100(1).

¶ 13 Ecology's statutorily-mandated involvement in the process of SMP development is considerable and, ultimately, determinative. Among other responsibilities, Ecology (1) develops guidelines that provide criteria for developing master programs, RCW 90.58.030(3)(a); (2) reviews, revises, and approves SMPs, RCW 90.58.090; (3) administers certain types of development along the shorelines, RCW 90.58.140(10); and (4) enforces the SMA and SMP use regulations against the federal government, RCW 90.58.260.

IV

¶ 14 Our Supreme Court has previously recognized the pervasive level of state control over and involvement in the development of SMPs. In Orion Corporation v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987), the court held that only the state, and not the county, was responsible for any unconstitutional takings arising out of the adoption of Skagit County's SMP regulations. 109 Wash.2d at 643, 747 P.2d 1062. This was so, the court ruled, because the county was acting as an agent of the state in developing the SMP. Orion, 109 Wash.2d at 643-44, 747 P.2d 1062. Indeed, the court noted that “the County acted at the instance of and, in some material degree, under the direction and control of the State.” Orion, 109 Wash.2d at 644, 747 P.2d 1062. In so holding, the court emphasized that the county's actions were directed and controlled by the state in that the SMA and Ecology's guidelines required the county to include certain provisions in the SMP and that the SMP became effective only when adopted or approved by Ecology Orion, 109 Wash.2d at 643, 747 P.2d 1062.

¶ 15 CRSP, however, contends that Orion and other decisions recognizing that SMPs are state regulations, including Buechel, 125 Wash.2d 196, 884 P.2d 910, and Harvey v. Board of Commissioners of San Juan County, 90 Wash.2d 473, 584 P.2d 391 (1978), were effectively invalidated in 1995 by legislative amendments made to the Growth Management Act (GMA), chapter 36.70A RCW. We disagree.

¶ 16 The cited amendments were proposed in order to consolidate and integrate the GMA, the SMA, the State Environmental Policy Act,⁴ and other environmental laws so as to “simplify[ ] rules and regulations in the state.” Final B. Report on...