Stevens County v. E. Wash. Growth Mgmt. Hearings Bd.
| Decision Date | 28 June 2011 |
| Docket Number | No. 29191-0-III,29191-0-III |
| Court | Washington Court of Appeals |
| Parties | STEVENS COUNTY, Appellant, v. EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, JEANIE WAGENMAN, Respondent. |
Brown, J. — Stevens County (the County) appeals the final decision and order (FDO) and the first order of compliance (FOC) of the Eastern Washington Growth Management Hearings Board (the Board) concluding the County's subdivision ordinance failed to protect critical areas as required by the Growth Management Act (GMA). The County contends: (1) Jeanie Wagenman lacks standing here; (2) the Board should have deferred to County discretion; (3) the superior court improperly deferred to the Board; (4) the Board improperly considered the GMA's planning goals;(5) the Board improperly considered best available science (BAS) requirements; and
(6) the County's critical areas ordinance (CAO) adequately protects critical areas. We affirm.
In 2007, the County enacted numerous development regulations in Resolution 2007-1, later codified as Stevens County Code (SCC) Title 3. Jeanie Wagenman petitioned the Board to review Title 3 for GMA compliance. Her petition was consolidated with others into a single case challenging Title 3. In October 2008, the Board issued its FDO in which the Board ruled SCC Title 3 complies with the GMA on every issue except one. Conclusion of law 10 states:
Stevens County is not protecting Critical Areas as required by the GMA pursuant to RCW 36.70A.70A.060, .172, .020(9), and .020(10) by enacting design standard development regulations, SCC 3.11 Subdivisions and SCC 3.16 Short Subdivisions which protect all of the functions and values of critical areas, and Ordinance 2007-1 is non-compliant with the GMA's requirements in regard to critical area protection as to the application of impervious surface coverage limitation and the consideration of stormwater discharges.
Hearings Board Record (HBR) at 64. The Board made the related findings:
HBR at 62. The Board remanded SCC 3.11 and SCC 3.16 to the County for legislative action to bring those provisions into compliance with the GMA. The County adopted Ordinance No. 3-2009, which amended three provisions of SCC Title 3. Ordinance 32009 added the underlined text to Title 3:
Following adoption, the Board conducted a compliance hearing. Upon reviewing the amended regulations, the Board found they still failed to protect the functions and values of critical areas and, therefore, did not comply with the final decision and order, and the GMA. Specifically, the Board concluded:
Stevens County has failed to enact legislation which complies with the Growth Management Act's requirements to protect the functions and values of critical areas as set forth in RCW 36.70A.020(10), .060(2), and .172.
HBR at 260. The Board remanded Ordinance No. 3-2009 to the County for further legislative action.
The County unsuccessfully asked the Board to reconsider, and then it petitioned the Stevens County Superior Court for review. The Board declined to participate in this judicial review, but Ms. Wagenman responded to the appeal, appearing as a respondent. The County unsuccessfully moved to dismiss Ms. Wagenman from the judicial review for lack of standing. Ultimately, the superior court affirmed the Board's actions. The County appealed.
The issue is whether Ms. Wagenman has standing to respond to Stevens County's appeal of the Board's decision. The County contends Ms. Wagenman lacksstanding to participate in judicial review of the Board's decision as an aggrieved party because she does not show a reversal would result in particularized injury to her.
Standing challenges are jurisdictional and may be raised at any time. Diehl v. W. Wash. Growth Mgmt. Hearings Bd., 118 Wn. App. 212, 75 P.3d 975 (2003). Our review of a growth management hearings board decision is determined by GMA standing requirements, not the Administrative Procedure Act (APA), RCW 34.05. See Project for Informed Citizens v. Columbia County, 92 Wn. App. 290, 966 P.2d 338 (1998) (). Id. at 296-97.
Even so, neither the GMA nor the APA denies Ms. Wagenman the opportunity to participate in judicial review of the Board's decision. The relevant provision of the GMA provides: "Any party aggrieved by a final decision of the hearings board may appeal the decision." RCW 36.70A.300(5). Ms. Wagenman has not appealed the Board's decision because she was not aggrieved by it. Similarly, the relevant provision of the APA provides: "A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action." RCW 34.05.530.
In sum, under the GMA, participation standing at the Board level entitles an aggrieved party standing to appeal. Informed Citizens, 92 Wn. App. at 296-97. Ms. Wagenman gained standing before the Board by participating in the legislative process for the challenged county code sections. Accordingly, we conclude Ms. Wagenman has standing to defend the Board's decision here.
The issue is whether the Board improperly failed to defer to county discretion when applying its review standards.
"Growth management hearings boards determine compliance with the GMA and are authorized to invalidate noncomplying comprehensive plans and development regulations." Stevens County v. Futurewise, 146 Wn. App. 493, 508, 192 P.3d 1 (2008) (citing Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 423, 166 P.3d 1198 (2007)). County development regulations are presumed compliant. RCW 36.70A.320(1). A growth management board should grant counties and cities broad discretion in planning for growth. RCW 36.70A.3201. That "discretion is bounded, however, by the goals and requirements of the GMA." King County v. Central Puget Sound Growth Mgmt. Hearings Board, 142 Wn.2d 543, 561, 14 P.3d 133 (2000). Thus, the Board must find compliance unless it determines that the county's action is "clearly erroneous" in light of the goals and requirements of the GMA. RCW 36.70A.320(3). "An action is clearly erroneous if the Board has a firm conviction that a mistake has been committed." Futurewise, 146 Wn. App. at 509 (citing Swinomish Indian Tribal Cmty., 161 Wn.2d at 423-24).
We review the Board's decisions under the APA. Swinomish Indian Tribal Cmty., 161 Wn.2d at 424 (citing RCW 34.05.570(3)). We review the Board's legal conclusions de novo, giving substantial weight to their interpretation of the GMA. Id. (citing Central Puget Sound Hearings Bd., 142 Wn.2d at 553). The Board's findings of fact arereviewed for substantial evidence. Id. Substantial evidence is "a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order." Central Puget Sound Hearings Bd., 142 Wn.2d at 553 (quoting Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)).
The County argues judicial deference to the Board's decision, as required by the APA review standards, impermissibly conflicts with GMA legislative intent to defer to local decision making. But as the superior court noted, "It is apparent that the County has misinterpreted the different levels of review standards that apply in growth management appeals." Clerk's Papers at 314. An appellate court must "accord substantial weight to [an] agency's interpretation of the law it administers - especially when the issue falls within the agency's expertise." In re Disciplinary Proceedings Against Brown, 94 Wn. App. 7, 12, 972 P.2d 101 (1998). Here, the growth management hearings board is tasked with determining compliance with the GMA concerning issues its members are "qualified by experience or...
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