Quadrant Corp. v. STATE, GROWTH MANAGEMENT HEARINGS BD.

• Decision Date: 05 May 2005
• Docket Number: No. 75076-9.,75076-9.
• Court: Washington Supreme Court
• Parties: The QUADRANT CORPORATION, a Washington corporation, Petitioner, v. STATE of Washington GROWTH MANAGEMENT HEARINGS BOARD, an administrative agency of the State of Washington; and Friends of the Law, a Washington nonprofit corporation, Respondents, King County, Petitioner, v. Central Puget Sound Growth Management Hearings Board; Friends of the Law, a Washington nonprofit corporation; Coalition for Public Trust; and the Quadrant Corporation, Respondents, Friends of the Law, a Washington nonprofit corporation, Petitioner, v. King County; the Quadrant Corporation; and Central Puget Sound Growth Management Hearings Board, Respondents, Coalition for Public Trust, Defendant.

110 P.3d 1132

154 Wash.2d 224

The QUADRANT CORPORATION, a Washington corporation, Petitioner, v. STATE of Washington GROWTH MANAGEMENT HEARINGS BOARD, an administrative agency of the State of Washington; and Friends of the Law, a Washington nonprofit corporation, Respondents, King County, Petitioner, v. Central Puget Sound Growth Management Hearings Board; Friends of the Law, a Washington nonprofit corporation; Coalition for Public Trust; and the Quadrant Corporation, Respondents, Friends of the Law, a Washington nonprofit corporation, Petitioner, v. King County; the Quadrant Corporation; and Central Puget Sound Growth Management Hearings Board, Respondents, Coalition for Public Trust, Defendant.

No. 75076-9.

Supreme Court of Washington, En Banc.

Argued January 13, 2005.

Decided May 5, 2005.

George Kresovich, Richard R. Wilson, Brian David Todd, Hillis Clark Martin & Peterson, Seattle, WA, for Petitioner.

Norm Maleng, Pros. Atty., and H. Kevin Wright and Michael J. Sinsky, Deputies, for King County.

David A. Bricklin, Bricklin Newman Dold LLP, for Friends of the Law.

Martha Patricia Lantz, Offc. of Atty. Gen. Lic. & Admin. Law Div., Olympia, WA, for Respondents.

John T. Zilavy, Futurewise, Seattle, WA, for Amicus Curiae (1000 Friends of Washington).

John Roberts Moffat, Snohomish County Prosecutor's Office, Everett, WA, for Amicus Curiae (Snohomish County).

BRIDGE, J.

¶ 1 Once again we are confronted with a conflict between competing powers under the Growth Management Act (GMA), chapter 36.70A RCW. This time the controversy concerns King County's designation of approximately 2,500 acres of land situated between Redmond and Duval in King County as an urban growth area (UGA), and subsequently, in the alternative, as a fully contained community (FCC).

¶ 2 The question raised is whether King County's actions complied with the GMA. King County first designated the area as a UGA in its original 1994 comprehensive plan. Since that time, there have been numerous protracted legal challenges to that designation, principally initiated by a citizens' group, Friends of the Law (FOTL). This is the second challenge to reach this court, and comes to us following our remand to the Central Puget Sound Growth Management Hearings Board (Board). On remand from this court in that earlier case, the Board ruled that King County's justification for its designation of the Bear Creek area as a UGA was insufficient because it failed to meet the requirements of the GMA but that King County's designation of the Bear Creek area as an FCC complied with the applicable GMA requirements. The superior court then reversed the Board on both grounds. A divided Court of Appeals, however, reversed the superior court on both grounds and reinstated the Board's initial order. King County, Quadrant Corporation, and FOTL all sought review here and we granted all three petitions.

¶ 3 We now address the Court of Appeals decisions, affirming in part, and reversing in part. We hold, first, that counties and cities planning under the GMA may consider vested development rights when determining whether an area "already is characterized by urban growth" according to the GMA (RCW 36.70A.110(1)), and second, that the Board correctly concluded that King County met all requirements under the GMA to designate the Bear Creek area an FCC.

I Facts and Procedural History

¶ 4 In 1988, before the adoption of the GMA, King County issued permits for the subdivision and development of two large tracts of land which now account for the majority of the Bear Creek area. Then in 1990 and 1991 the legislature enacted the GMA, requiring counties to adopt comprehensive plans and designate UGAs.¹ King County responded, engaging in a thorough, multijurisdictional deliberative process through the Growth Management Planning Council (GMPC).² Regional consensus was achieved, and pursuant to RCW 36.70A.210, King County adopted county-wide planning policies (CPP) which designated the Bear Creek area as a UGA. See Response Br. of King County at 3-7. Consistent with the CPPs, in 1994 King County adopted its comprehensive plan, designating the Bear creek area as a UGA.

¶ 5 FOTL challenged King County's designation of the Bear Creek area as a UGA in a petition to the Board. The Board ruled that King County's designation did not comply with the GMA, but refused to invalidate the UGA designation and instead remanded the issue to the county to, at its discretion, (1) remove the UGA designation, (2) justify the UGA designation pursuant to the requirements of RCW 36.70A.110, or (3) redesignate the area an FCC pursuant to RCW 36.70A.350.³ King County took alternative means to comply with the Board's order. It appealed the Board's ruling, sought to establish justification for the area's designation as a UGA, and redesignated the area, through county ordinance and an amendment to its comprehensive plan, as an FCC.

¶ 6 FOTL appealed both the UGA designation and the issuance of development permits in the area. In response, King County asserted that it was bound by its CPPs to include the Bear Creek urban planned development in its UGA. The superior court and the Court of Appeals agreed with the county, finding that the UGA designation was mandated by the CPPs, and that the permits were valid. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 138 Wash.2d 161, 166-69, 979 P.2d 374 (1999). On review before this court in 1999, we affirmed the Court of Appeals denial of FOTL's challenge to the issuance of development permits, but held that the validity of the county's designation of the area as a UGA was not mandated by the CPPs and therefore subject to administrative review. Id. at 186, 979 P.2d 374. We remanded to the Board "for a determination of whether the County has adequately complied with the terms of the Board's Order ... by justifying the Bear Creek urban designation under the terms of the GMA or by redesignating the area as an FCC." Id. at 186, 979 P.2d 374.

¶ 7 On remand, FOTL contested both King County's justification of the UGA and its redesignation of the area as an FCC. The Board unanimously ruled that the county had failed to justify its UGA designation because the relevant statutory requirement that the UGA be "characterized by urban growth" could include only the actual built environment and not prospective future development. As to the second issue, a divided Board upheld the county's redesignation of the area as an FCC, the majority finding that the county complied with the all the requirements of RCW 36.70A.350 to permit the approval of an FCC.⁴

¶ 8 The parties appealed to King County Superior Court, which consolidated the appeals, and reversed the Board on both issues finding (1) that counties may consider vested rights to future development when determining whether an area is characterized by urban growth and (2) that the FCC designation failed to comply with the GMA because it violated one of the GMA's principle goals of reducing sprawl.

¶ 9 On appeal to Division One, the Court of Appeals reinstated the Board's ruling. The court unanimously determined that the Board correctly found that King County complied with the GMA in designating the area as an FCC. Quadrant Corp. v. State Growth Mgmt. Hearings Bd., 119 Wash.App. 562, 572, 81 P.3d 918 (2003). By a 2-1 decision, it found that the Board's interpretations of the GMA with regard to the UGA designation "lie within its expertise, and ... conclude[d] that they [were] reasonable." Id. As such it upheld the Board's determination that the term "`characterized by urban growth'" refers only to the "built environment." Id. Judge H. Joseph Coleman disagreed and opined that in light of the stated purposes and mandates of the GMA greater deference should have been paid to King County's decision to designate the area a UGA, reasoning that it was inconsistent with the legislature's intent and the goals of the GMA to preclude counties from considering vested development applications when determining which areas to include in a UGA. Id. at 578-79, 81 P.3d 918.

¶ 10 Not surprisingly, all three parties petitioned this court for review which we granted.

II Analysis GMA Background

¶ 11 The legislature enacted the GMA in 1990 and 1991 largely "`in response to public concerns about rapid population growth and increasing development pressures in the state, especially in the Puget Sound region.'" King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 546, 14 P.3d 133 (2000) (quoting Alan D. Copsey, Including Best Available Science in the Designation and Protection of Critical Areas Under the Growth Management Act, 23 SEATTLE U.L.REV. 97, 97 (1999)). After decades of lax and optional land use regulations,⁵ the legislature's stated intent was to combat "uncoordinated and unplanned growth." RCW 36.70A.010. One of the central requirements of the GMA, and the one at issue here, is that counties and cities which plan under it must designate UGAs "within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature." RCW 36.70A.110(1). In addition, planning counties were required to adopt a "county-wide planning policy in cooperation with the cities located in whole or in part" within its boundaries. RCW 36.70A.210(2). These CPPs were designed to promote coordinated and orderly planning. See RCW 36.70A.210(3).

¶ 12 The GMA created three growth management hearings boards to hear and review challenges to county and city actions under the GMA. See RCW 36.70A.250 through .340. In addition the legislature appointed the Department of Community, Trade, and Economic Development to provide technical assistance to counties and cities in adopting and implementing their comprehensive plans and development regulations. See RCW 36.70A.050, .190.

¶ 13 Relevant here, the GMA, at its inception, was "riddled with politically necessary omissions, internal inconsistencies,...