Thurston County v. Western Wash. Bd.

• Decision Date: 03 April 2007
• Docket Number: No. 34172-7-II.,34172-7-II.
• Citation: 137 Wn. App. 781,154 P.3d 959
• Parties: THURSTON COUNTY, Appellant, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD and Futurewise (formerly known as 1000 Friends of Washington), Respondents, and Building Industry Association of Washington, Olympia Master Builders, and People for Responsible Environmental Policies, Appellants-Intervenors.
• Court: Washington Court of Appeals

154 P.3d 959

137 Wn. App. 781

THURSTON COUNTY, Appellant, v. WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD and Futurewise (formerly known as 1000 Friends of Washington), Respondents, and Building Industry Association of Washington, Olympia Master Builders, and People for Responsible Environmental Policies, Appellants-Intervenors.

No. 34172-7-II.

Court of Appeals of Washington, Division 2.

April 3, 2007.

Allen T. Miller, Jeffrey George Fancher, Olympia, WA, Richard L. Settle, Foster Pepper PLLC, Seattle, WA, for Petitioners.

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

Russell Clayton Brooks, Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, for Appellant-Intervenors.

ARMSTRONG, J.

¶ 1 Thurston County appeals a Western Washington Growth Management Hearings Board decision that invalidated certain portions of the County's comprehensive plan and development regulations. The Board, acting on 1000 Friends of Washington's challenge to the County's periodic review, found that the County failed to explain why its urban growth areas exceeded projected population growth by 38 percent, improperly designated agricultural land of long-term significance, and failed to create a variety of densities in its rural areas.

¶ 2 The County argues that the Board wrongly decided these issues on the merits arguing that: (1) 1000 Friends of Washington (now Futurewise) did not have standing before the Board because it did not show that any member lived in or owned property in the county, (2) the Board lacked jurisdiction to review land use decisions the County made years earlier and did not revise in its recent update, and (3) the Board lacked jurisdiction to review the County's criteria for designating agricultural land of long-term significance because the County revised this part of its comprehensive plan early and Futurewise did not petition for review within the 60-day period the Growth Management Act allowed.

¶ 3 We conclude that Futurewise had standing before the Board because the legislature granted standing to a "participating" party at the county level and that the legislative grant of such standing does not violate the separation of powers doctrine. We further conclude that the Board had jurisdiction to consider those parts of the County's comprehensive plan that it had not revised in the mandated update, and the Board did not err in finding that the County failed to give sufficient notice of its early review of part of the comprehensive plan.

¶ 4 In addition, we hold that in reviewing the County's criteria for designating agricultural lands of long-term significance, the Board correctly determined that a criterion excluding lands not currently used for agriculture violated the Act, but it erred in concluding that predominant parcel size was an invalid criterion. In reviewing the County's urban growth areas (UGAs), the Board correctly determined that, without explanation from the County as to the rationale, the 38 percent excess land in the UGAs was too large. But in reviewing the County's rural densities, the Board erred in concluding that the County's zoning designations did not provide for a variety of rural densities. Accordingly, we affirm in part and reverse in part.

FACTS

¶ 5 The legislature enacted the Growth Management Act (Act), chapter 36.70A RCW, to minimize the threats that unplanned growth poses to the environment, economic development, and public welfare. RCW 36.70A.010; Diehl v. Mason County, 94 Wash.App. 645, 650, 972 P.2d 543 (1999). The Act encourages development in areas already characterized by urban development, reduction of urban sprawl, and conservation of productive agricultural lands. RCW 36.70A.020.

¶ 6 The Act requires counties with large populations or rapid growth to plan for future growth. RCW 36.70A.040(1). Each county planning under the Act must adopt a comprehensive land use plan and development regulations. RCW 36.70A.040(3). The Act requires counties to "take action to review and, if needed, revise their comprehensive plans and development regulations" in accordance with a set schedule. RCW 36.70A.130(4). Counties may conduct their required reviews before the established time periods and may receive grants if they elect to do so. RCW 36.70A.130(5)(a).

¶ 7 Thurston County is required to plan under the Act. Its first update was due on or before December 1, 2004, with successive updates due every seven years thereafter. RCW 36.70A.130(4)(a). In November 2003, the County adopted a resolution amending its comprehensive plan's Natural Resource Lands and Natural Environment chapters, which designate agricultural lands of long-term significance. The County adopted the update of its comprehensive plan and development regulations in November 2004.¹

¶ 8 The Thurston County Planning Commission provided for public comment on the update. Futurewise wrote the County regarding its concerns that the comprehensive plan did not provide for a variety of rural densities, contained urban growth areas that were too large, and did not properly classify agricultural lands. Tim Trohimovich² testified on behalf of Futurewise before the Commission about these concerns.

¶ 9 In January 2005, Futurewise petitioned the Board for review of the County's comprehensive plan update. The Board concluded that the plan did not comply with the Act because it failed to establish a variety of rural densities, the urban growth areas contained 38 percent more acres than projected demand required through 2025, and two of the County's criteria for designating agricultural resource lands did not comply with RCA 36.70A.060 and .170.

¶ 10 The County sought direct review of the Board's decision in the Supreme Court. The Building Industry Association of Washington Olympia Master Builders, and People for Responsible Environmental Policies intervened. The Supreme Court transferred the case to this court.³

ANALYSIS

I. STANDARD OF REVIEW

¶ 11 The Board adjudicates Act compliance and, when necessary, can invalidate noncompliant comprehensive plans and development regulations. RCW 36.70A.280, .302. The Board must presume that a county's comprehensive plans and development regulations are valid upon adoption. RCW 36.70A.320(1). A challenging petitioner bears the burden of demonstrating that a county's actions do not comply with the Act. RCW 36.70A.320(2). And 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 Act]." 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." King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 552, 14 P.3d 133 (2000) (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wash.2d 179, 201, 849 P.2d 646 (1993)).

¶ 12 In reviewing decisions of the Board, we apply the standards of the Administrative Procedure Act (APA) directly to the record before it. King County, 142 Wash.2d at 553, 14 P.3d 133. The party asserting error, in this case the County, has the burden of demonstrating the invalidity of the Board's action. RCW 34.05.570(1)(a); King County, 142 Wash.2d at 553, 14 P.3d 133.

¶ 13 Under the APA, we will reverse an agency decision that is unconstitutional, exceeds the agency's statutory authority or jurisdiction, erroneously interprets or applies the law, is not based on substantial evidence, or is arbitrary or capricious. RCW 34.05.570(3). The County asserts it is entitled to relief under these five grounds.

¶ 14 We review the Board's legal conclusions de novo, giving substantial weight to the Board's interpretation of a statute it administers. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998). But the Act requires us to give even greater deference to county planning decisions that are consistent with the Act's goals. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 238, 110 P.3d 1132 (2005). Thus, we do not defer to a Board ruling that fails to give considerable deference to a county's choices in adopting or revising its comprehensive plan. Quadrant Corp., 154 Wash.2d at 238, 110 P.3d 1132. Nonetheless, the Board need not defer to a county decision that is clearly an erroneous application of the Act. Quadrant Corp., 154 Wash.2d at 238, 110 P.3d 1132.

¶ 15 We review the Board's factual findings for substantial supporting evidence, which is "`a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" King County, 142 Wash.2d at 553, 14 P.3d 133 (quoting Callecod v. Wash. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997)). Where the agency's findings of fact are unchallenged, we consider them verities on appeal. Manke Lumber Co. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 113 Wash.App. 615, 628, 53 P.3d 1011 (2002).

II. STANDING OF FUTUREWISE

¶ 16 The County challenges Futurewise's standing to petition the Board for review of the County's growth management enactments. The County argues that Futurewise made no showing that Trohimovich or any other member is a resident of or property owner in Thurston County and, thus, did not show actual injury from the County's actions.

A. Standing Under the Act

¶ 17 The Act provides that a person who has participated orally or in writing before a county in the adoption or amendment of a comprehensive plan or development regulations may petition the Board for review of that matter.⁴ RCW 36.70A.280(2)(b). The person must show that his or her participation before the County was "reasonably related to the person's issue[s] as presented to the board." RCW 36.70A.280(4)....