Whatcom County v. Brisbane
| Decision Date | 08 December 1994 |
| Docket Number | No. 60655-2,60655-2 |
| Citation | 884 P.2d 1326,125 Wn.2d 345 |
| Court | Washington Supreme Court |
| Parties | WHATCOM COUNTY, a Municipal Corporation, Appellant, v. Steve BRISBANE, Respondent. |
Pacific Legal Foundation, John M. Groen, Bellevue, Pacific Legal Foundation, Ronald A. Zumbrun, Robin L. Rivett, Sacramento, CA, for respondent.
Catherine W. Smith, Seattle, amici curiae for respondent on behalf of the Washington Environmental Council, North Cascades Audubon Soc., Greater Ecosystem Alliance, Point Roberts Preservation Committee, Watershed Defense Fund, and Friends of Chuckanut.
This court granted the motion of Respondent Steve Brisbane 1 to transfer from the Court of Appeals, Division One, to the Supreme Court review of a decision by the Whatcom County Superior Court dismissing on summary judgment a challenge by Whatcom County to a referendum petition to amend portions of a critical areas ordinance adopted by the Whatcom County Council pursuant to the Growth Management Act. We reverse.
On June 23, 1992, the Whatcom County Council adopted the Temporary Critical Areas Ordinance, ordinance 92-032. 2
Respondent Brisbane (Respondent) conducted a successful referendum campaign to eliminate portions of the ordinance. 3 The referendum was certified by the County Auditor in January 1993 for placement on the November 1993 ballot. 4
On January 12, 1993, Whatcom County (County) filed a declaratory judgment action in the Whatcom County Superior Court asking the court to declare that the critical areas ordinance was not subject to local referendum. 5 On May 14, 1993, the Whatcom County Superior Court, the Honorable Michael F. Moynihan, granted summary judgment in favor of Respondent Brisbane and dismissed the complaint. 6 The trial court held the critical areas ordinance is subject to local referendum. 7 Whatcom County appealed to the Court of Appeals, Division One. On July 16, 1993, Respondent Brisbane moved to transfer the appeal to this court. The County did not oppose the motion. We granted it on April 6, 1994.
The sole question presented is whether a critical areas ordinance adopted by the Whatcom County Council pursuant to the Growth Management Act is subject to amendment by referendum under the home rule charter of the County.
The Growth Management Act, RCW 36.70A, was enacted in 1990 to prevent "uncoordinated and unplanned growth" and to encourage "comprehensive land use planning" among the "citizens, communities, local governments, and the private sector...." 8 Two years later, in 1992, WAC 365-195 was promulgated which, when read in conjunction with the Growth Management Act, similarly operates to "accomplish[ ] the planning and development regulation requirements of the act." 9
Under former RCW 36.70A.040(1) any county with "a population of fifty thousand or more and has had its population increase by more than ten percent in the previous ten years ... shall adopt comprehensive land use plans and development regulations." 10 The statute further provides that "[a]ny county ... required to adopt a comprehensive land use plan under subsection (1) ... shall adopt the plan on or before September 1, 1993." 11
Whatcom County adopted the Temporary Critical Areas Ordinance 12 on June 23, 1992 to "carry out the goals of the Whatcom County Comprehensive Land Use Plan" 13 mandated by RCW 36.70A.040(1) and (3), .050, .060, .170, and .210.
Pursuant to Const. art. 11, § 4 (amend. 21), 14 Whatcom County enacted the most recent version of its home rule charter (Charter) in 1993. Included among the rights of self-governance under the Charter was the right of citizens to reject ordinances passed by the County Council. 15 16 This court observed in Snohomish Cy. v. Anderson, supra:
The Washington State Constitution expressly relegates home rule charters to an inferior position vis-a-vis "the Constitution and laws of this state". Const. art. 11, § 4, para. 2. The Henry court ... recognized bounds on charter rights, noting that county home rule was intended to further self-governance in "purely local affairs ... so long as [those exercising their rights to self-governance] abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws."[ 17
Under the Growth Management Act, RCW 36.70A, the Legislature used the words "county" or "city" interchangeably with the words "legislative body" of the county or city. 18 Thus, the power to act under the Growth Management Act was delegated to the "county legislative body". This raises a conflict between the language of the Growth Management Act and the language of the Whatcom County Home Rule Charter (1993).
"Referendum rights do not exist when power has been statutorily delegated to the 'legislative authority'." 19 "In the context of statutory interpretation, [this court has] previously held that a city's 'corporate authority', also referred to as a 'legislative authority', means exclusively the mayor and city council. Therefore, a statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum. 20
Our most recent case involving legislative authority and the right of referendum is Snohomish Cy. v. Anderson. 21 In that case, we considered whether a section of the Growth Management Act, RCW 36.70A.210(2), was subject to referendum and whether the mandatory language of the Growth Management Act conflicted with referendum rights under the Snohomish County Home Rule Charter. 22 The Snohomish County Charter has a provision identical to that of the Whatcom County Charter granting referendum rights to the people. In that case, the people of Snohomish County argued that the words "legislative authority" included their right to exercise referendum powers. 23 This court rejected that argument, stating:
"[L]egislative authority" cannot be carried out by initiative or referendum. For example, the statute directs the "legislative authority" to convene meetings and establish processes. These responsibilities cannot be performed by the exercise of a "yes/no" vote.
Furthermore, the Legislature is presumed to be familiar with judicial decisions of the Supreme Court construing existing statutes and the state constitution. At the time the Legislature enacted RCW 36.70A, case law defined "legislative authority" and comparable terms in statutory contexts to mean the council and/or mayor only, and not to permit referendum rights.[ 24
The purpose of the Growth Management Act, RCW 36.70A, would be frustrated if the people of Whatcom County were permitted by referendum to amend an ordinance adopted to implement the goals of a comprehensive land use plan. Under Anderson, "[p]ermitting the referendum would jeopardize [the] entire state plan [as intended by the Growth Management Act] and thus would extend beyond a matter of local concern." 25 One consequence of such a broad interpretation of the referendum power includes the potential repeal of ordinances required by the Legislature to be enacted for statewide growth management. Also, it would be difficult to balance the various interests contemplated by the Legislature. 26
Referendum rights are generally matters of local governance and are not mentioned in the Growth Management Act. 27 28 But the Growth Management Act does provide a process for public participation in growth management legislation at the county or city level. The people of Whatcom County had a participatory opportunity to voice their concerns prior to adoption of the Temporary Critical Areas Ordinance, Ordinance Number 92-032. RCW 36.70A.140, provides:
Each county and city that is required or chooses to plan under RCW 36.70A.040 shall establish procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments. Errors in exact compliance with the established procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the procedures is observed.
(Italics ours.)
Ordinance 92-032 was adopted to satisfy the Whatcom County comprehensive land use plan mandated by the Growth Management Act. The County is correct in its assertion that adoption of the ordinance did not create new policy, but merely pursued a plan already adopted by its legislative body, the County Council. The ordinance is merely execution of a policy already in existence. It specifically provided that it was created to comply with the mandate of the Growth Management Act. 29
Whatcom County Code art. 2, § 2.20 provides in relevant part:
The County Council shall exercise its legislative power by adoption and enactment of ordinances or resolutions. It shall have the power:
d) To adopt by ordinance comprehensive plans, including improvement plans for the...
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