The Suquamish Tribe v. Cent. Puget Sound Growth Mgmt. Hearings Bd.
| Decision Date | 07 July 2010 |
| Docket Number | No. 39017-5-II.,39017-5-II. |
| Citation | 156 Wash.App. 743,235 P.3d 812 |
| Parties | The SUQUAMISH TRIBE, Kitsap Citizens for Rural Preservation, Jerry Harless, and The Port Gamble S'Klallam Tribe, Appellants,v.CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, State Agency Respondent,Additional Party from underlying Agency Case: Kitsap County, Respondent. |
| Court | Washington Court of Appeals |
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Melody L. Allen, Suquamish Tribe, Office of Tribal Attorney, Suquamish, WA, David Alan Bricklin, Bricklin & Newman, LLP, Seattle, WA, for Appellants.
Jerry Harless, Port Orchard, WA, pro se.
Shelley E. Kneip, Lisa J. Nickel, Kitsap County Prosecutors Office, Port Orchard, WA, Jerald R. Anderson, Attorney at Law, Olympia, WA, for Respondent.
Charles Edward Maduell, Clayton Paul Graham, Davis Wright Tremaine LLP, Seattle, WA, for Amicus Curiae on behalf of Olympic Property Group.
¶ 1 The Suquamish Tribe, Kitsap Citizens for Rural Preservation, and Jerry Harless1 appeal the Central Puget Sound Growth Management Hearings Board (Board) decisions validating Kitsap County's (County) comprehensive plan under Washington's Growth Management Act (GMA), chapter 36.70A RCW. The Citizens argue that the Board erred because (1) it applied bright line rules to approve minimum urban density and maximum rural density; (2) substantial evidence did not support its findings that the County's reduced urban density plan, the County's adoption of the minimum density in the land capacity analysis, and the County's Rural Wooded Incentive Program all complied with the GMA; and (3) it did not decide all issues related to urban density, the land capacity analysis, the Rural Wooded Incentive Program, and the County's rural element goal harmonizing document. We reverse those parts of the Board's decisions that the Citizens challenge on appeal and remand for the Board to reconsider appropriate urban and rural densities without use of bright line rules and for it to address all of the issues that the Citizens raised relating to urban density, the land capacity analysis, the Rural Wooded Incentive Program, and the County's rural element goal harmonizing document.
¶ 2 In 1990, Kitsap County began creating its first comprehensive plan under the GMA. In 1992, the County adopted its first set of Countywide Planning Policies to guide its development regulations and comprehensive plan creation. The County's original Countywide Planning Policies set a development goal that allocated 83 percent of growth to urban areas and 17 percent of growth to rural areas.
¶ 3 In 1998, the County adopted the comprehensive plan and, on review, the Board found it valid. The plan established various urban density levels and a minimum density for the Urban Low and Urban Cluster designations of five dwelling units per acre and one dwelling unit per five acres for areas with the Rural Residential designation.
¶ 4 The County's 2002 Buildable Lands Report showed that, from 1995 to 2000, urban growth had not occurred at minimum density levels (five dwelling units per acre) established in the 1998 comprehensive plan. The Buildable Lands Report also showed that growth did not occur in accordance with the 1992 Countywide Planning Policies' goal to allocate growth primarily in the urban growth areas (UGAs). In fact, 43 percent of all growth occurred in the UGAs and 57 percent occurred in rural areas. To remedy the inconsistency between actual growth and the projected growth in the UGAs and the rural areas, the County adopted “reasonable measures” in 2004 to remedy the discrepancy. 2 Admin. Record (AR) at 2150. It also updated the Countywide Planning Policies, reducing the urban growth target to 76 percent and delaying the 1992 goal of 83 percent of growth in UGAs until the County could achieve the 76 percent target.
¶ 5 In 2006, the County completed a 10 year update of its comprehensive plan. The 2006 updated plan included the land capacity analysis that the County used to set the size of its UGA based on (1) population projections, (2) the urban growth target of 76 percent,3 (3) available land in the county, (4) a market factor related to the likelihood of redevelopment of different urban parcels, and (5) the minimum density within each zoning area. 4 The latest plan's various zoning densities were: Urban Restricted Residential (one to five dwelling units per acre), Urban Low Residential and Urban Cluster Residential (four to nine dwelling units per acre), Urban Medium Residential (10-18 dwelling units per acre), and Urban High Residential (19-30 dwelling units per acre).5
¶ 6 The updated 2006 comprehensive plan also included a Rural Wooded Incentive Program with the goal to preserve open space and forestry through partial residential development at densities higher than those otherwise allowed by zoning. The Rural Wooded Incentive Program allows development of rural wooded land 6 at residential densities equivalent to one dwelling unit per five acres in exchange for setting aside 75 percent of the land for open space. It also allows clustered developments in parcels ranging from 20 to 500 acres. The County may approve projects until the total acreage developed under the Rural Wooded Incentive Program reaches 5,000 acres, at which point the county commissioners must decide whether to authorize another 5,000 acre phase. The program restricts clusters to a maximum of 25 houses, sets no minimum lot size,7 creates minimum setbacks of 20 feet in the front yard and 5 feet on the sides and rear, and requires a 150 foot buffer between clusters. It also contains hearing examiner approval criteria for proposed projects and a postdevelopment monitoring and evaluation component that allows the county commissioners to review each 5,000 acre phase.
¶ 7 The Citizens raised three broad issues8 in their petition for review of the County's 2006 comprehensive plan to the Board that are relevant to this appeal:
• Whether the County's decision to reduce urban density and to expand the UGA complied with the GMA's (1) goals for urban growth, sprawl, transportation, housing, environment, and public facilities and service; (2) requirements for UGA designation; and (3) requirement for internal consistency.
• Whether the County's land capacity analysis complied with the GMA's (1) urban growth and anti-sprawl goals, (2) requirements for UGA designation, and (3) requirement for internal consistency.
• Whether the County's Rural Wooded Incentive Program complied with the GMA's (1) environment, open space, and recreational goals; (2) rural element requirement; and (3) definition of rural development.9
¶ 8 In its review, the Board found that the County designated a minimum density of four dwelling units per acre for 90 percent of its urban areas. The Board approved this density:
At the outset, the Board acknowledges that 4 [dwelling units per acre] is an “appropriate” urban density; it is not low-density sprawl. In fact, the County is correct in noting that since 1995, 4 [dwelling units per acre] has been an approved and accepted minimum urban density for Kitsap County.
AR at 1952 (citing Bremerton v. Kitsap County, No. 95-3-0039, 1995 WL 903165) (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Oct. 6, 1995) ( Bremerton I). The Board acknowledged the Citizens' “very impressive evidence” of the service efficiencies for higher density and agreed “that there is certainly persuasive evidence providing a solid basis and rationale for increased densities and compact urban growth.” AR at 1952-53. But it ruled that the reduction in density did not fall “outside the GMA's requirements.” AR at 1953.
¶ 9 In response to the Citizens' argument that the only local consideration came from a “Citizen Advisory Group,” the Board emphasized that “4 [dwelling units per acre] is an appropriate urban density and not the historic pattern previously found in Kitsap County.” 10 AR at 1953. It concluded that the Citizens did not carry their burden of proof and it rejected the argument “that the County's action of establishing a minimum urban density of 4 [dwelling units per acre] is clearly erroneous or contrary to the challenged provisions of the GMA.” AR at 1953. After reaching this conclusion, the Board failed to address the further assertion regarding inconsistency with the GMA goals and internal plan inconsistency.
¶ 10 The Board also rejected the Citizens' challenge to the methodology that the County employed in the land capacity analysis to calculate the size of UGAs because it had already adopted the County's four dwelling units per acre figure as the proper minimum density for UGAs:
Just as the Board agreed with the County in regard to urban density, the Board here also agrees with the County on its methodology. The [land capacity analysis] largely rests upon a residential density assumption of 4 [dwelling units per acre], which, as the Board has stated supra, is an “appropriate” urban density. The consequence of adopting this lower assumption is, in fact, to demonstrate a need for more urban land. The methodology of the County is not flawed, nor is the use of a minimum of 4 [dwelling units per acre] rather than a trend or mid-range density flawed or in violation of any GMA directive. However, the Board does agree with [Citizens] that adopting this approach may dampen the recent success the County has had in encouraging higher densities in the UGAs, since the County concedes that between 2000 and 2005, the County achieved an average of 5.6 [dwelling units per acre] for urban low density plats.
AR at 1956. In reaching this conclusion based on the four dwelling units per acre density, the Board again failed to...
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