Stevens County v. Futurewise

• Decision Date: 26 June 2008
• Docket Number: No. 26038-1-III.,26038-1-III.
• Citation: 192 P.3d 1,146 Wn. App. 493
• Court: Washington Court of Appeals
• Parties: STEVENS COUNTY, Appellant, v. FUTUREWISE, Respondent.

192 P.3d 1

146 Wn. App. 493

STEVENS COUNTY, Appellant, v. FUTUREWISE, Respondent.

No. 26038-1-III.

Court of Appeals of Washington, Division 3.

June 26, 2008.

Publication Ordered September 4, 2008.

Peter Guillum Scott, Gough, Shanahan, Johnson & Waterman, Helena, MT, for Appellant.

Keith Patrick Scully, Gendler & Mann LLP, Michael David Pierson, Riddell Williams PS, Brock Howell, Seattle, WA, for Respondent.

Brian T. Hodges, Bellevue, Amicus curiae.

KULIK, A.C.J.

¶ 1 Stevens County Code (SCC) 13.10.034(3)(C) establishes protections for "critical habitat," defined as "only those areas designated by a state or federal agency through a formal statutory or rule-making process for endangered, threatened, or sensitive species." Futurewise, a citizens' group, filed a petition with the Eastern Washington Growth Management Hearings Board (Board) claiming that the above code section violates the Growth Management Act (GMA) because it fails to protect the habitats of endangered, threatened, or sensitive species. Concluding that Stevens County had not complied with the GMA, the Board ordered the county to amend SCC 13.10.034. The Board's final decision and order was affirmed by the Stevens County Superior Court.

¶ 2 On appeal to this court, Stevens County contends Futurewise's petition should have been barred under the equitable doctrines of res judicata, collateral estoppel, or virtual representation. Substantively, the county argues that the Board does not give due deference to the county's discretion in land use planning under the GMA and that the Board's findings are not supported by substantial evidence. We conclude that Futurewise's petition is not barred and that the Board correctly decided that SCC 13.10.034(3)(C) does not comply with the GMA. Accordingly, we affirm.

FACTS

¶ 3 The Washington legislature enacted the GMA in 1990 to combat "uncoordinated and unplanned growth" and to promote cooperation among local governments and citizens in comprehensive land use planning. RCW 36.70A.010. Included in the GMA's planning goals is the conservation of fish and wildlife habitat. RCW 36.70A.020(9). To that end, counties and cities are required to designate and protect "critical areas," defined as wetlands, recharge areas for aquifers, areas of frequent flooding, geologically hazardous areas, and fish and wildlife conservation areas. RCW 36.70A.030(5), .170; see Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wash.2d 415, 421, 166 P.3d 1198 (2007). Counties and cities are directed to "include the best available science in developing policies and development regulations to protect the functions and values of critical areas." RCW 36.70A.172(1). Three regional boards review compliance with the GMA by cities and counties located in the boards' jurisdictional boundaries. Swinomish Tribal Cmty., 161 Wash.2d at 421, 166 P.3d 1198 (citing RCW 36.70A.250-.350). The Board reviews Stevens County's compliance with the GMA.

¶ 4 In March 2003, Stevens County adopted a Critical Areas Ordinance, codified in SCC Title 13. One purpose of SCC Title 13 was to comply with the mandate of the GMA by providing reasonable and effective regulations to "conserve, protect and maintain the functions and values of regulated critical areas," including fish and wildlife conservation areas. SCC 13.00.020. Another purpose of the ordinance was to classify and designate the county's critical areas. SCC 13.00.020.

¶ 5 County resident Jeanie Wagenman (representing Larson Beach Neighbors) and the citizens group called "1000 Friends of Washington" participated in the process of adopting the ordinance. "1000 Friends" is now known as Futurewise. In May 2003, Ms. Wagenman filed a petition for review of Title 13 with the Board, which later consolidated it with two other petitions under case no. 03-1-0006c. 1000 Friends/Futurewise did not join in any of the petitions.

¶ 6 In February 2004, the Board found Title 13 to be noncompliant with the GMA and ordered that Title 13 be amended to address, in part, public participation in its development. The county then proposed amendments to Title 13 in Resolution 80-2004. The last public hearing on Resolution 80-2004 was held on June 22, 2004. It was only after that meeting that the county added a subsection to SCC 13.10.034(3) that qualified the classification of critical habitat:

C. For purposes of this section, critical habitat shall include only those areas designated by a state or federal agency through a formal statutory or rule-making process for endangered, threatened, or sensitive species. Critical habitat for species of local importance shall be limited to those areas determined by the County when designating such a species.

The amendments were adopted on July 6, 2004, without further public hearings.

¶ 7 Soon after, Ms. Wagenman challenged the amendments as noncompliant with the GMA. In her reply brief, she raised for the first time a new issue regarding the language of SCC 13.10.034(3)(C):

The county under the new "C" provisions now narrowly defines [the Washington State Department of Fish and Wildlife's habitat conservation areas] as only those areas that were designated by a formal rule-making process for ETS [endangered, threatened, or sensitive species] by either state or federal agencies.

What this means is ETS will not receive the protection they need because the State of Washing[ton] does NOT by rule-making designate critical habitat areas. In addition[,] the U.S. Fish and Wildlife does by rule-making designate SOME but not ALL areas in which ETS have primary association and only for those "federal" areas in which they have jurisdiction.

Hearing Board Record (HBR) doc. 31 at 13-14. She also asserted that the public participation requirements had been violated when SCC 13.10.034(3)(C) was adopted. Futurewise did not participate as a party in this action. Although these new issues had not been timely raised, the parties agreed that it would be best to examine the merits of the new compliance issue and submitted supplemental briefing. The Washington State Department of Fish and Wildlife (the Wildlife Department) submitted an amicus brief that addressed whether the county's decision to apply larger than standard riparian buffers to fish and wildlife conservation areas designated by rule as critical habitat rendered Title 13 noncompliant with the GMA. Because the Wildlife Department concluded that the GMA does not require additional protections for priority habitats, it concluded that limiting those additional protections to formally designated critical habitats complied with the GMA.

¶ 8 On October 15, 2004, the Board issued an order on compliance in case no. 03-1-0006c. The Board addressed only whether the GMA requires more protection for endangered, threatened, and sensitive species than it does for other fish and wildlife:

We agree with [the Wildlife Department] that GMA does not require additional protection for priority habitat, even priority habitat associated with listed species. In other words, priority habitat is subject, at most, to the protection requirements found necessary for the protection of that habitat. Ms. Wagenman does not contend that the protections in Title 13 for fish and wildlife habitat conservation areas fail to protect functions and values. Ms. Wagenman has not met the burden of showing that the County's action is clearly erroneous and that the priority habitat is not adequately protected.

HBR doc. 51 at 11. Although the Board concluded that the county was compliant with the GMA on most of the raised issues, it ordered the county to respond to public nominations of species and habitat.

¶ 9 The Board had issued a memorandum decision in September 2004 outlining the proposed decision. In response to the memorandum decision, Ms. Wagenman filed a new petition for review before the October 2004 order on compliance was entered. This new petition, case no. 04-1-0010, challenged the public participation process used to adopt SCC 13.10.034(3)(C). The Board filed a final decision and order in case no. 04-1-0010 in February 2005 that found the amendment of SCC 13.10.034(3)(C) violative of the public participation requirements of the GMA. The resolution to adopt the amendment (Resolution 80-2004) was remanded for public comment and appropriate legislative action. After proper notification and a public hearing, the county again adopted SCC 13.10.034(3)(C) in May 2005 (per new Resolution 65-2005) without any changes.

¶ 10 Futurewise filed a petition for review with the Board in case no. 05-1-0006 in July 2005. It raised two general issues regarding SCC 13.10.034(3)(C): (1) that the county fails to designate all of the identified habitats of endangered, threatened, and sensitive species (hereafter referred to as "listed species") as fish and wildlife conservation areas; and (2) that SCC 13.10.034(3)(C) fails to consider the best available science in designating all of the identified habitats of listed species as fish and wildlife conservation areas. The county responded that Futurewise's petition was barred by res judicata, collateral estoppel, and virtual representation.

¶ 11 In its January 2006 final decision and order on case no. 05-1-0006, the Board concluded that Futurewise had not been a party before and that the substantive issues raised had not been presented before. Further concluding that Futurewise met its burden of proving by clear, cogent, and convincing evidence that SCC 13.10.034(3)(C) violates the GMA, the Board remanded Resolution 65-2005 back to the county to amend SCC 13.10.034 so that it protects all listed species' habitat using the best available science.

¶ 12 In February 2006, the county petitioned for judicial review of case no. 05-1-0006 in the Stevens County Superior Court. The superior court affirmed the Board in a 34-page memorandum decision that rejected the county's arguments for dismissal on the basis of res...