Thurston County v. W. Wash. Growth Management, No. 80115-1.

• Court: United States State Supreme Court of Washington
• Writing for the Court: Fairhurst
• Citation: 164 Wn.2d 329,190 P.3d 38
• Parties: THURSTON COUNTY, Petitioner, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD and 1000 Friends of Washington, Respondents, and Building Industry Association of Washington, Olympia Master Builders, and People for Responsible Environmental Policies, Petitioner-Intervenors.
• Docket Number: No. 80115-1.
• Decision Date: 14 August 2008

190 P.3d 38 164 Wn.2d 329 THURSTON COUNTY, Petitioner,
v.
WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD and 1000 Friends of Washington, Respondents, and
Building Industry Association of Washington, Olympia Master Builders, and People for Responsible Environmental Policies, Petitioner-Intervenors. No. 80115-1. Supreme Court of Washington, En Banc. Argued March 20, 2008. Decided August 14, 2008.

[190 P.3d 40]

Jeffrey George Fancher, Attorney at Law, Andrew C. Cook, Building Industry Association of Washington, Olympia, WA, Richard L. Settle, Foster Pepper PLLC, Seattle, WA, Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, for Petitioner.

Tim Trohimovich, Futurewise, Seattle, WA, John T. Zilavy, Attorney at Law, Martha Patricia Lantz, Office of Atty. Gen. Lic. & Admin. Law Div., Olympia, WA, for Respondents.

Ann M. Gygi, Brian Corker Free, Hillis Clark Martin & Peterson, PS, Seattle, WA, Amicus Curiae on behalf of Clallam County.

Shelley E. Kneip, Kitsap County Prosecutor's Office, Port Orchard, WA, Amicus Curiae on behalf of Kitsap County.

[190 P.3d 41]

FAIRHURST, J.

¶ 1 Petitioners, Thurston County (County) and the Building Industry Association of Washington, Olympia Master Builders, and People for Responsible Environmental Policies (hereinafter collectively BIAW), seek review of a Court of Appeals ruling upholding the Western Washington Growth Management Hearings Board's (Board) determination that the County's 2004 updates to its comprehensive plan failed to conform to the Growth Management Act's (GMA), chapter 36.70A RCW, requirements regarding urban growth areas (UGA) and rural densities. The County asserts the Board lacked jurisdiction to hear Futurewise's¹ challenge to the County's updates and asserts the updates complied with the GMA.

¶ 2 We hold a party may challenge a county's failure to revise aspects of a comprehensive plan that are directly affected by new or recently amended GMA provisions if a petition is filed within 60 days after publication of the county's seven year update. A party may challenge a county's revisions or failures to revise its UGA designations when there is a change in the population projection, if a petition is filed within 60 days after publication of the county's 10 year update. We remand this case to the Board to determine whether a market factor was employed by the County in revising its UGAs and whether the County's designations were clearly erroneous. We also remand the case to the Board to determine whether it was clearly erroneous for the County to include densities greater than one dwelling unit per five acres in its rural element and whether the County provided for a variety of rural densities by the use of innovative zoning techniques.

I. STATEMENT OF THE CASE

¶ 3 The legislature enacted the GMA in 1990 to address concerns related to "uncoordinated and unplanned growth" in the State and "a lack of common goals expressing the public's interest in the conservation and the wise use of our lands." RCW 36.70A.010. The GMA provides a "framework" of goals and requirements to guide local governments who have "the ultimate burden and responsibility for planning." RCW 36.70A.3201. Great deference is accorded to a local government's decisions that are "consistent with the requirements and goals" of the GMA. Id. The GMA's goals include encouraging development in urban areas and reducing rural sprawl. RCW 36.70A.020(1), (2).

¶ 4 The GMA requires counties to develop a "`comprehensive plan,'" which sets out the "generalized coordinated land use policy statement" of the county's governing body. Former RCW 36.70A.030(4) (1997). Among other things, the comprehensive plan must designate a UGA "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). The plan also must include a rural element that provides for a variety of rural densities. Former RCW 36.70A.070(5)(b) (2004). The GMA recognizes regional differences and allows counties to consider local circumstances when designating rural densities so long as the local government creates a written record explaining how the rural element harmonizes the GMA requirements and goals. Former RCW 36.70A.070(5)(a).

¶ 5 The County's first comprehensive plan, following enactment of the GMA, was adopted in 1995.² The GMA requires counties to update their comprehensive plans every 7 years and review UGA designations every 10 years. Former RCW 36.70A.130(1)(a), (3) (2002). The County elected to perform these updates simultaneously in 2004.

¶ 6 In preparing the 2004 update, the County relied on population estimates for the cities within its boundaries developed by the Thurston Regional Planning Council based on the state Office of Financial Management's (OFM) population projections. The County also relied on the Thurston Regional

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Planning Council, Buildable Lands Report for Thurston County (Sept.2002) (Buildable Lands Report) produced by the County.³ The supply of lands available for future residential urban development throughout the county in 2000 was 18,789 acres, including vacant lots and underdeveloped plots. The County projected the demand for new residential urban land development will be 11,582 acres in 2025. After 25 years of population growth, 7,025 acres, or approximately 38 percent of available residential urban areas, will remain undeveloped.⁴

¶ 7 The County's overall UGA was slightly expanded in 2004 as a result of a revised UGA for the city of Tenino and a new UGA for the town of Bucoda. Tenino proposed in 2004, and the County accepted, the addition of 298 acres to the Tenino UGA to compensate for 295 acres that were transferred out of the UGA into conservation and family trusts. Prior to the 2004 revisions, the Tenino UGA included 505 buildable acres. The projected demand for new residential urban lands in Tenino in 2025 is 353 acres. According to the year 2000 estimates, approximately 30 percent of buildable Tenino UGA lands will remain undeveloped in 2025.

¶ 8 The buildable residential land supply in the town of Bucoda in 2000 was 81 acres.⁵ Demand for new residential urban lands in Bucoda in 2025 is projected to be 30 acres, leaving 63 percent of the buildable residential lands unused. Bucoda proposed in 2004, and the County accepted, the creation of a UGA that would include 74 developable acres. The County accepted Bucoda's proposal "to accommodate growth projected by the city, provide economic opportunity and avoid intensifying impacts to a sensitive aquifer within existing city limits." Administrative Record (AR) at 697.

¶ 9 The County did not modify its rural density designations in 2004. The comprehensive plan indicates 399,264 acres are allocated for rural use in the county. Of this, 39.3 percent is designated natural resource use lands (designated agriculture, forestry, and mineral lands); 48.3 percent is rural resource and residential lands (residential density of one dwelling unit per five acres); 5.5 percent is rural and suburban residential lands (densities greater than one dwelling unit per two acres); 1.9 percent is public parks, trails, and preserves; 4.6 percent is military reservations; and 0.4 percent is rural commercial and industrial use. Actual zoning densities are set forth in the County's development regulations.

¶ 10 The County's development regulations provide for a number of innovative rural zoning techniques, including clustering and transfers of development rights. Thurston County Code (TCC) 20.30.020; TCC 20.30A.010, .020. The use of these innovative techniques is not specifically described in the County's comprehensive plan.

¶ 11 On November 22, 2004, the County adopted resolution 13234 modifying its comprehensive plan and ordinance 13235 modifying its development regulations. Futurewise

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filed a petition with the Board challenging the County's updates. The Board determined the County's comprehensive plan failed to comply with the GMA by, among other things, "creating UGA boundaries that significantly exceed the projected demand for urban residential lands over the course of the 20-year planning horizon" and failing to provide for a variety of rural densities. AR at 2573.

¶ 12 The County sought direct review of the Board's decision with this court and the BIAW intervened. We transferred the case to the Court of Appeals, which affirmed the Board in part. Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 137 Wash.App. 781, 154 P.3d 959 (2007). The County and the BIAW petitioned for review, which we granted. Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 162 Wash.2d 1014, 178 P.3d 1033 (2008).

II. ISSUES

1. When a comprehensive plan is updated either every 7 years in accordance with former RCW 36.70A.130(1)(a) or when UGAs are reviewed every 10 years in accordance with former RCW 36.70A.130(3), does a growth management hearings board (GMHB) have jurisdiction to review the entire comprehensive plan?

2. Whether a UGA violates RCW 36.70A.110 when the supply of developable residential land in the UGA exceeds the projected demand for such land in 25 years by 38 percent.

3. Whether a comprehensive plan provides for a variety of rural densities in accordance with former RCW 36.70A.070(5)(b) when resource lands and densities greater than one dwelling unit per five acres are included in the rural element.

III. ANALYSIS

A. Standard of Review

¶ 13 The GMHBs adjudicate issues of GMA compliance and may invalidate noncompliant comprehensive plans. RCW 36.70A.280(1)(a), .302. Petitions challenging whether a comprehensive plan complies with the GMA "must be filed within sixty days after publication by the legislative bodies of the county or city." RCW 36.70A.290(2). A comprehensive plan is presumed valid, and "[t]he board shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the...