Planning v. Whatcom County

• Decision Date: 18 August 2011
• Docket Number: No. 84675–8.,84675–8.
• Citation: 258 P.3d 36,172 Wash.2d 384
• Parties: CITIZENS FOR RATIONAL SHORELINE PLANNING, a Washington nonprofit corporation, and Ronald T. Jepson, an individual, Petitioners,andBuilding Industry Association of Whatcom County, Intervenor–Petitioner,v.WHATCOM COUNTY, a municipal corporation of the State of Washington, and the Whatcom County Council, Respondents,andWashington State Department of Ecology, Intervenor–Respondent.
• Court: Washington Supreme Court

172 Wash.2d 384

258 P.3d 36

CITIZENS FOR RATIONAL SHORELINE PLANNING, a Washington nonprofit corporation, and Ronald T. Jepson, an individual, Petitioners,andBuilding Industry Association of Whatcom County, Intervenor–Petitioner,

v.WHATCOM COUNTY, a municipal corporation of the State of Washington, and the Whatcom County Council, Respondents,andWashington State Department of Ecology, Intervenor–Respondent.

No. 84675–8.

Supreme Court of Washington, En Banc.

Argued May 26, 2011.Decided Aug. 18, 2011.

Dannon C. Traxler, Langabeer & Tull, PS, Bellingham, WA, for Petitioners.Kelly Thomas Wood, Katharine G. Shirey, Office of the Attorney General, Ecology Division, Olympia, WA, Karen Frakes, Royce Scott Buckingham, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondents.Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, amicus counsel for Pacific Legal Foundation.Charles A. Klinge, Samuel A. Rodabough, Groen Stephens & Klinge LLP, Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, for Intervenor–Petitioner/Plaintiff.C. JOHNSON, J.

[172 Wash.2d 387] ¶ 1 This case involves a question of whether RCW 82.02.020, which generally prohibits local governmental bodies from imposing taxes or fees on development, applies to shoreline master programs (SMP) created pursuant to the Shoreline Management Act of 1981(SMA), chapter 90.58 RCW. Members of the Citizens for Rational Shoreline Planning (CRSP) own land regulated under Whatcom County's SMP. The group filed a complaint alleging, in part, that the regulations contained in the SMP constitute a direct or indirect tax, fee, or charge on development in violation of RCW 82.02.020. The superior court dismissed the claim under CR 12(b)(6) for failing to state a claim for which relief may be granted. Division One of the Court of Appeals affirmed the superior court, holding that the State's involvement in the creation and adoption of Whatcom County's SMP was so pervasive as to make the County's SMP a state action not subject to RCW 82.02.020. We affirm the Court of Appeals.

FACTS

¶ 2 Under the SMA, each county is required to adopt and administer a local shoreline master program, which regulates uses and development on shorelines located within the county. Whatcom County's original SMP was approved by the Department of Ecology (Ecology) in 1976. Since its inception, the County's SMP was amended in 1986, 1993, and 1998. Clerk's Papers (CP) at 68. In 2003, Ecology adopted new shoreline master program guidelines. Pursuant to the SMA, Whatcom County was required to review and update its 1998 SMP to ensure compliance with Ecology's newest guidelines.¹ In 2004, Whatcom County initiated the process of amending its SMP. Over the next three years, the County gathered input from technical advisory groups, held open public meetings and workshops, and released proposed drafts of the SMP for public review and comment. In 2007, the county council adopted Whatcom County Ordinance 2007–017, which amended its existing SMP. Whatcom County then forwarded its package of amendments to Ecology for review. CP at 67–72.

¶ 3 After a public hearing and comment period, Ecology provided Whatcom County with 13 pages of mandatory revisions to the proposed SMP and two pages of recommended changes. In August 2008, the County notified Ecology that it accepted Ecology's proposed changes. Under the SMA, this notification of agreement made Whatcom County's SMP final.² CP at 75–91, 104.

¶ 4 In October 2008, members of the CRSP filed a complaint in Skagit County Superior Court alleging that Whatcom County's SMP imposed direct or indirect taxes, fees, or charges in violation of RCW 82.02.020. CRSP noted that certain aspects of the County's newly amended SMP were identical to aspects contained in the Whatcom County Critical Areas Ordinance (CAO). CRSP specifically pointed to the SMP's buffer zone provisions, which prohibit construction within 150 feet of shoreline streams and marine shores, 100 feet from certain large lakes, and between 25 to 300 feet from wetlands.³ CRSP also noted that the SMP limits the buildable area of structures located on nonconforming lots within the SMP's shoreline buffer zones to 2,500 square feet.⁴

¶ 5 Shortly after CRSP filed its complaint, Ecology intervened on behalf of Whatcom County (together, the State). The State moved to dismiss CRSP's complaint under CR 12(b)(6), arguing that SMPs are state, not local, regulations, thereby rendering RCW 82.02.020 inapplicable. The superior court agreed and dismissed CRSP's complaint. CP at 113–22, 165–66.

¶ 6 CRSP appealed to Division One. CRSP offered several arguments to the appellate court essentially focusing on why SMPs are local regulations subject to RCW 82.02.020. The Court of Appeals disagreed. Relying on the statutory scheme embodied in the SMA, and our holdings in Orion Corp. v. State, 109 Wash.2d 621, 747 P.2d 1062 (1987), and Biggers v. City of Bainbridge Island, 162 Wash.2d 683, 169 P.3d 14 (2007), the Court of Appeals held that the State's significant involvement in the process of developing SMPs precluded a claim under RCW 82.02.020. Citizens for Rational Shoreline Planning v. Whatcom County, 155 Wash.App. 937, 230 P.3d 1074 (2010).

ISSUE

¶ 7 Whether shoreline master programs constitute local government regulations subject to RCW 82.02.020's prohibition on taxes, fees, or charges.

ANALYSIS

¶ 8 The superior court here granted the State's CR 12(b)(6) motion and dismissed CRSP's complaint for failure to state a claim upon which relief may be granted. A CR 12(b)(6) motion is properly granted when it appears from the face of the complaint that the plaintiff would not be entitled to relief even if he proves all the alleged facts supporting the claim. A trial court's ruling on a CR 12(b)(6) motion presents a question of law that we review de novo. Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 329–30, 962 P.2d 104 (1998)).

[172 Wash.2d 390] ¶ 9 Under RCW 82.02.020, the State, with limited exceptions, preempts the field of certain tax impositions. As relevant to our present case, RCW 82.02.020 states:

Except as provided in RCW 64.34.440 and 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Restrictions or conditions on the development of land may amount to an indirect tax, fee, or charge. However, according to the statute's plain text, RCW 82.02.020 applies only to taxes, fees, or charges imposed by local political subdivisions, not the state. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 49 P.3d 867 (2002); Citizens' Alliance for Prop. Rights v. Sims, 145 Wash.App. 649, 187 P.3d 786 (2008), review denied, 165 Wash.2d 1030, 203 P.3d 378 (2009).

¶ 10 CRSP's complaint alleged that the buffer zone and buildable lot size restrictions in Whatcom County's amended SMP constitute a “facial violation” of RCW 82.02.020.⁵ CRSP advances two primary arguments. First, CRSP argues that the process by which an SMP is created requires significant local government involvement, thereby bringing SMP restrictions under the scope of RCW 82.02.020. For support, CRSP points to a specific section of the SMA and also to Ecology's administrative code. As additional support, CRSP argues that the Court of Appeals inappropriately relied on this court's precedent because legislative amendments in 1995 undermined the rationale of our holdings. Second, CRSP presents a narrower argument that several specific aspects of Whatcom County's SMP—namely its buffer zones and buildable lot size restrictions— are subject to RCW 82.02.020 because these particular restrictions mirror restrictions in Whatcom County's Critical Areas Ordinance (CAO).⁶

¶ 11 To begin, CRSP argues that the process in which an SMP is adopted shows that such regulations are inherently local activity subject to RCW 82.02.020. CRSP asserts that the SMA requires extensive involvement from local jurisdictions when creating an SMP. CRSP relies on a statute within the SMA, RCW 90.58.080(1), which states, “ Local governments shall develop or amend a master program for regulation of uses of the shorelines....” (Emphasis added.) CRSP also notes that Ecology's administrative code suggests that local government involvement is necessary for an SMP to conform to local conditions. WAC 173–26–171(2) (stating the SMA's purpose is to implement a “ ‘cooperative program ... between local government and the state’ ” and that “[l]ocal government shall have the primary responsibility for initiating the planning required by the [SMA]”).

¶ 12 In response, the State argues that the ultimate control over the process and contents of an SMP resides with Ecology. The State asserts that the SMA governs nearly every aspect of the adoption and amendment of SMPs and this determinatively shows that SMPs are the product of state action. We agree.

¶ 13 The SMA creates a comprehensive statutory framework dictating that Ecology retains control over the final contents and approval of SMPs. The SMA establishes specific schedule dates for jurisdictions to develop SMPs and mandates Ecology to create SMPs for noncomplying jurisdictions through an administrative process. See RCW 90.58.070. The SMA also details specific guidelines with which an SMP must conform. See RCW 90.58.060, .100. As empowered by the SMA, Ecology retains sole authority to review and accept a local jurisdiction's proposed SMP; a process that involves Ecology providing public notice, a comment period, and potentially holding public hearings. See RCW 90.58.090(2)-(6). Notably, Ecology is not...