The Cooper Point Ass'n v. Thurston County

• Decision Date: 14 September 2001
• Docket Number: No. 26425-1-II.,26425-1-II.
• Citation: 108 Wn. App. 429,31 P.3d 28,108 Wash. App. 429
• Parties: THE COOPER POINT ASSOCIATION, The League of Women Voters of Thurston County, Jolene Unsoeld, Michael Lynch, Tom Mumford, Lea Mitchell, Sylviann Frankus, and Western Washington Growth Management Hearings Board, Respondents, v. THURSTON COUNTY, a municipal corporation and political subdivision of the State of Washington, Appellant.
• Court: Washington Court of Appeals

31 P.3d 28

108 Wn. App. 429

108 Wash. App. 429

THE COOPER POINT ASSOCIATION, The League of Women Voters of Thurston County, Jolene Unsoeld, Michael Lynch, Tom Mumford, Lea Mitchell, Sylviann Frankus, and Western Washington Growth Management Hearings Board, Respondents, v. THURSTON COUNTY, a municipal corporation and political subdivision of the State of Washington, Appellant.

No. 26425-1-II.

Court of Appeals of Washington, Division 2.

September 14, 2001.

Jeffrey George Fancher, Thurston County Deputy Prosecuting Attorney, Olympia, for Appellant.

Marjorie Ann Smitch, Office of Attorney General, Barnett N. Kalikow, Olympia, for Respondents.

Tim Trohimovich, Seattle, for Amicus Curiae 1000 Friends of Washington & Washington Environmental council.

HUNT, A.C.J.

Thurston County appeals a Growth Management Board determination that extending a sewer line from an urban treatment plant to rural Cooper Point violates RCW 36.70A.110(4) of the Growth Management Act (GMA). Holding that the statute is not ambiguous and finding no Board error, we affirm.

FACTS

Cooper Point is a Thurston County peninsula that extends northward from Olympia into Puget Sound. In 1995, the County adopted its Comprehensive Plan in accordance with the GMA. The County designated most of Cooper Point rural, including the area at issue here. The County designated the southern base of Cooper Point an urban growth area (UGA);¹ this UGA is contiguous to the city of Olympia.

Located in the rural area of Cooper Point are two, more densely developed, unincorporated communities, 1,500 feet apart that pre-date the GMA—Tamoshan and Beverly Beach. Beverly Beach comprises 22 homes; Tamoshan comprises 84 homes. Each community has its own small sewage treatment plant, which discharges treated effluent into Puget Sound. Although both treatment plants are aging, they are currently operating effectively, without threatening harm to people or the environment. A number of private shoreline residences on small lots, however, lie outside these two areas served by the treatment plants. Thus far, various on-site solutions have remedied failing septic systems at these individual residences such that they do not pose imminent threats to human health or the marine environment of Puget Sound.²

Looking ahead to avoid potential future threats to health and the environment, the County began working with the Cooper Point community in 1992 to develop long-term wastewater solutions.³ They focused on the Tamoshan and Beverly Beach sewage treatment plants and failing single-family septic systems along the shoreline. On December 20, 1999, the County amended its Comprehensive Plan to include the Cooper Point Wastewater Facilities General Plan (Plan). The Plan addressed non-point pollution⁴ and considered five alternatives for Beverly Beach and Tamoshan:

1. Do nothing, keep the status quo;

2. Rebuild the Tamoshan plant and adopt an enhanced on-site septic system operation and maintenance program;

3. Have separate sewer service areas and an enhanced on-site septic system operation and maintenance program;

4. A limited capacity LOTT⁵ sewer line and enhanced on-site septic systems operations and maintenance program; and

5. Construct a sewer system to serve all of Cooper Point to be connected [to] the LOTT plant.

Administrative Record (AR) at 527-29, 947.

The County adopted option 4 as its "preferred" alternative—extension of a four-inch sewer line from the urban LOTT plant through the rural area of Cooper Point to Tamoshan and Beverly Beach. This sewer line would also provide potential future hook-ups for up to 100 single-family homes currently on small or individual septic systems. The County did not intend that these hook-ups be made available for new development.

On February 8, 2000, the Cooper Point Association, the League of Women Voters of Thurston County, and several individuals (Association)⁶ filed a petition with the Western Washington Growth Management Board (Board). They contended that the Plan violated the State Environmental Policy Act (SEPA) and the GMA. The Board dismissed their SEPA claim. With respect to the GMA claim, however, the Board ruled that the County's Plan did not satisfy RCW 36.70A.110(4) because the County failed to show that the proposed sewer extension was "necessary to protect basic health and safety and the environment."⁷ AR at 949-52, 954. The Board ordered the County to abandon its planned extension of sewer service from the treatment plant to Cooper Point.

The County sought review in Thurston County Superior Court. We granted the County's subsequent petition for accelerated review.

ANALYSIS

I. STANDARD OF REVIEW

The Board is charged with adjudicating GMA compliance and, when necessary, invalidating noncompliant comprehensive plans and development regulations. RCW 36.70A.280, .302. The Board "shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA]." RCW 36.70A.320(3). To find an action "clearly erroneous," the Board must be "left with the firm and definite conviction that a mistake has been committed." Dep't of Ecology v. Pub. Util. Dist. No. 1, 121 Wash.2d 179, 201, 849 P.2d 646 (1993).

A party aggrieved by a final Board decision may appeal the decision under the Administrative Procedure Act (APA). RCW 36.70A.300(5). Our "judicial review of the Board's decision is based on the record made before the Board." Buechel v. Dep't of Ecology, 125 Wash.2d 196, 202, 884 P.2d 910 (1994). "We apply the standards of RCW 34.05 directly to the record before the agency[.]" City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998). The burden of demonstrating that the Board erroneously interpreted or applied the law, or that the Board's order is not supported by substantial evidence,⁸ remains on the party asserting the error—in this case, the County. RCW 34.05.570(1)(a). We review the Board's legal conclusions de novo, giving substantial weight to the Board's interpretation of the statute it administers. City of Redmond, 136 Wash.2d at 46, 959 P.2d 1091; Diehl v. Mason County, 94 Wash.App. 645, 652, 972 P.2d 543 (1999).

RCW 34.05.570(3) sets forth nine grounds for reversing a Board decision, two of which the County asserts here:

(d) The agency has erroneously interpreted or applied the law;

(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter[.]

While lauding the County's long-range planning efforts to protect public and environmental health, we disagree with its assertion that the Board erred in interpreting and applying the Act as the Legislature mandated.

II. URBAN GOVERNMENTAL SERVICES IN RURAL AREAS

RCW 36.70A.110(4) provides:

In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development.

(Emphasis added.) The County first argues that RCW 36.70A.110(4) does not apply to its planned sewer line extension to Cooper Point. Alternatively, the County argues that the Board misread the statute.

A. APPLICABILITY

The County contends that the proposed four-inch, limited-capacity sewer line is not an urban public service under the GMA because it is too small to carry urban-level sewage. The County also asserts that the Board inconsistently referred to the sewer line as an "urban service" and a line whose size "virtually excludes any possibility of permitting `urban development.'" AR at 951.

Contrary to the Board's assertion, the GMA's definition of "urban governmental service" expressly "includ[es] storm and sanitary sewer systems[.]" RCW 36.70A.030(19). This statutory definition does not mention sewer pipe size; nor does it exclude small sewer lines. Consistent with inclusion of sewers as "urban governmental services," the GMA specifically provides, "[r]ural services do not include storm or sanitary sewers, except as otherwise authorized by RCW 36.70A.110(4)." RCW 36.70A.030(16) (emphasis added). Under the plain language of these statutes, the County's proposed four-inch sewer line is an urban governmental service.

The County next contends that RCW 36.70A.110(4) does not apply because the sewer line would merely replace current "urban services" facing impending obsolescence; therefore, it is not an "extension" or "expansion" of urban services. On the contrary, the Plan would extend approximately four miles of sewer pipe from an existing urban treatment plant through and to land that the County previously designated rural under its Comprehensive Plan.⁹ It would allow for up to 100 new hook-ups by customers currently without sewer service.¹⁰ Clearly, running the sewer line to existing residences not currently served by sewer would be an expansion or extension of new urban services under RCW 36.70A.110(4).

Replacement of the aging sewage treatment plants at Tamoshan and Beverly Beach is somewhat more problematic in that such urban services already exist in these two communities, pre-dating the GMA. Assuming, without so deciding, that replacement of the Tamoshan and Beverly Beach treatment plants were "necessary" (see discussion infra), the County has not shown that extending the LOTT sewer line onto Cooper Point constitutes "replacement" rather than "extension" or "expansion" of urban services. Nor has it shown that such extension is the only way to solve...