Kittitas County v. Eastern Wash. Growth Mgmt. Hearings Bd.

172 Wash.2d 144

256 P.3d 1193

KITTITAS COUNTY, a political subdivision of the State of Washington; Building Industry Association Of Washington (BIAW), a Washington not-for-profit corporation; Central Washington Home Builders Association (CWHBA), a Washington not-for-profit corporation; Mitchell F. Williams, d/b/a MF Williams Construction Co.; Teanaway Ridge, LLC; Kittitas County Farm Bureau; Son Vida II; and American Forest Land Company, Petitioners,

v.EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD; Kittitas County Conservation; Ridge; Futurewise; and Washington Department of Community, Trade and Economic Development, Respondents.

No. 84187–0.

Supreme Court of Washington, En Banc.

Argued Oct. 19, 2010.Decided July 28, 2011.

Alexander Weal Mackie, Patrick W. Ryan, Eric S. Merrifield, Perkins Coie LLP, Seattle, WA, Timothy M. Harris, Goodstein Law Group PLLC, Tacoma, WA, Julie Sund Nichols, Law Offices of Stephen Whitehouse, Shelton, WA, Neil Alan Caulkins, Suzanne Michelle Becker, Kittitas County Prosecutor's Office, Jeffrey David Slothower, Attorney at Law, Ellensburg, WA, for Petitioners.Marc Worthy, Office of the Attorney General, Keith Patrick Scully, Newman & Newman, LLP, Tim Trohimovich, Futurewise, Seattle, WA, Alan D. Copsey, Dorothy Harris Jaffe, Office of the Attorney General, Olympia, WA, for Respondents.Amanda Wilcox Goodin, Earthjustice, Seattle, WA, amicus counsel for Center for Environmental Law and Policy.Margaret Jane King, Kenyon Disend, PLLC, Issaquah, WA, amicus counsel for City of Roslyn.Alan Myles Reichman, Office of the Attorney General, Ecology Division, Olympia, WA, amicus counsel for Department of Ecology.Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, amicus counsel for Pacific Legal Foundation.OWENS, J.

[172 Wash.2d 151] ¶ 1 Kittitas County (the County) and several other parties (collectively “Petitioners”) challenge two final decisions and orders of the Eastern Washington Growth Management Hearings Board (Board). The Board found several provisions of the County's revised comprehensive plan (Plan) and development code noncompliant with the Growth Management Act (GMA), chapter 36.70A RCW. Petitioners argue that the Board misinterpreted the law and acted beyond its jurisdiction, without substantial evidence, and arbitrarily and capriciously in making findings related to rural and agricultural densities and uses, zoning techniques, land use near airports, and water resources. We hold that the Board did not improperly disregard evidence and appropriately found that the County violated the GMA by failing to: develop the required written record explaining its rural element, include provisions in its Plan that protect rural areas, provide for a variety of rural densities, protect agricultural land, and protect water resources. However, we find that the Board improperly found that the County's airport overlay zone is noncompliant with the GMA. Finally, we decline to reach the questions of whether the Board applied a bright line rule to determine appropriate rural density and failed to protect rural areas in specific development regulations.

FACTS

¶ 2 In December 2006, the County passed Ordinance 2006–63, updating its Plan as required by the GMA. Kittitas County Ordinance (Ord.) 2006–63 (Dec. 11, 2006) (Administrative Record, Kittitas County Conservation v. Kittitas County, No. 07–1–0004c (E. Wash. Growth Mgmt. Hr'gs Bd.) (1 AR) at 1–242); RCW 36.70A.130(4)(c). Kittitas County Conservation, RIDGE, and Futurewise (collectively “RIDGE”) and the Washington Department of Community, Trade and Economic Development (CTED) ¹ filed petitions for review with the Board, alleging that ordinance 2006–63 failed to comply with the GMA. The Board held a hearing and issued a final decision and order, directing the County to further revise its Plan and specific development regulations to achieve compliance with the GMA. Kittitas County Conservation v. Kittitas County, No. 07–1–0004c, 2007 WL 2729590 (E. Wash. Growth Mgmt. Hr'gs Bd. Aug. 20, 2007) ( Kittitas Conservation I ). Petitioners separately appealed the Board's order in the Kittitas County Superior Court, where their appeals were consolidated.

¶ 3 In the midst of that challenge, the County proceeded to revise its development code, adopting ordinance 2007–22. Ord. 2007–22 (July 19, 2007) (Administrative Record, Kittitas County Conservation v. Kittitas County, No. 07–1–0015 (E. Wash. Growth Mgmt. Hr'gs Bd.) (2 AR) at 8–16). RIDGE also challenged this ordinance in proceedings before the Board. After another hearing on the merits, the Board issued a final decision and order, again concluding that the County's Plan and several of its development regulations failed to comply with the requirements of the GMA. Kittitas County Conservation v. Kittitas County, No. 07–1–0015, 2008 WL 1766717 (E. Wash. Growth Mgmt. Hr'gs Bd. Mar. 21, 2008) ( Kittitas Conservation II ). Petitioners separately appealed in the superior court, where their cases were again consolidated.

¶ 4 RIDGE filed motions for discretionary review in both consolidated cases, which were granted by Division Three of the Court of Appeals. The Court of Appeals then consolidated the two cases into one and certified it for review by this court pursuant to RCW 2.06.030.

ISSUES

¶ 5 1. Did the Board improperly disregard evidence or elevate some GMA goals over others?

¶ 6 2. Did the Board properly determine that the County failed to develop a written record explaining the rural element of its Plan?

¶ 7 3. Did the Board improperly employ a bright line rule regarding rural densities?

¶ 8 4. Did the Board properly find that the County failed to protect rural character?

¶ 9 5. Did the Board properly conclude that the County failed to provide for a variety of rural densities?

¶ 10 6. Did the Board properly find that the County's development regulations allow for urban densities and uses in its designated agricultural land?

¶ 11 7. Did the Board properly determine that the County's land use decisions around its airports violate the GMA?

[172 Wash.2d 154] ¶ 12 8. Did the Board properly determine that the County failed to protect water by not requiring disclosure of common ownership in subdivision applications?

ANALYSIS

¶ 13 In reviewing growth management hearings board (board) decisions, courts give “ ‘substantial weight’ ” to a board's interpretation of the GMA. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wash.2d 488, 498, 139 P.3d 1096 (2006) (quoting King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000)). Courts' deference to boards is superseded by the GMA's statutory requirement that boards give deference to county planning processes. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wash.2d 224, 238, 110 P.3d 1132 (2005) (“a board's ruling that fails to apply this ‘more deferential standard of review’ to a county's action is not entitled to deference from this court”). To make a finding of noncompliance with the GMA, a board must find that a county's actions are “clearly erroneous,” RCW 36.70A.320(3), meaning the board has a “ ‘firm and definite conviction that a mistake has been committed.’ ” ² Lewis County, 157 Wash.2d at 497, 139 P.3d 1096 (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wash.2d 179, 201, 849 P.2d 646 (1993), aff'd, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994)). We have also importantly recognized that the GMA “is not to be liberally construed.” Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wash.2d 329, 342, 190 P.3d 38 (2008).

[172 Wash.2d 155] ¶ 14 Courts apply the standards of the Administrative Procedure Act, chapter 34.05 RCW, and look directly to the record before the board. Lewis County, 157 Wash.2d at 497, 139 P.3d 1096; Quadrant Corp., 154 Wash.2d at 233, 110 P.3d 1132. Specifically, courts review errors of law alleged under RCW 34.05.570(3)(b), (c), and (d) de novo. Thurston County, 164 Wash.2d at 341, 190 P.3d 38. Courts review challenges under RCW 34.05.570(3)(e) that an order is not supported by substantial evidence by determining whether there is “ ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ” Id. (internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998)). Finally, courts review challenges that an order is arbitrary and capricious under RCW 34.05.570(3)(i) by determining whether the order represents “ ‘willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.’ ” City of Redmond, 136 Wash.2d at 46–47, 959 P.2d 1091 (internal quotation marks omitted) (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wash.2d 1, 14, 820 P.2d 497 (1991)).

I. The Board Did Not Improperly Disregard Evidence or Elevate GMA Goals

¶ 15 The GMA requires boards to defer to counties' local planning processes, even establishing a presumption of validity for comprehensive plans and development regulations. RCW 36.70A.320(1). Petitioners contend that the Board did not give proper deference to the County and implicitly present a question about the evidentiary rule in City of Arlington v. Central Puget Sound Growth Management Hearings Board, 164 Wash.2d 768, 193 P.3d 1077 (2008). In particular, Petitioners allege that the Board improperly “dismissed” community testimony in support of three-acre densities.³ Petitioners argue that, under City of Arlington, the mere presence of evidence supporting a county decision as comporting with the GMA entitles that county to Board deference. While the issue of proper deference pervades each question, Petitioners' argument and the significance of proper deference to our standard of review in GMA cases compel us to clarify the rule at the...