Olympic Stewardship Found. v. Western Washington Growth Mgmt. Hearings Bd.

166 Wash.App. 172

274 P.3d 1040

OLYMPIC STEWARDSHIP FOUNDATION, Appellant,

v.WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, Respondent.

No. 40272–6–II.

Court of Appeals of Washington, Division 2.

Jan. 26, 2012.

Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, for Appellant.

Marc Worthy, Office of the Attorney General, Mark Robert Johnsen, Attorney at Law, Seattle, WA, for Respondent.

PENOYAR, C.J.

[166 Wash.App. 175] ¶ 1 Rivers alter their course over time, a process known as “ channel migration.” In 2009, Jefferson County (County) enacted a critical areas regulation requiring property owners to retain all vegetation located in “high-risk” channel migration zones (CMZs) ¹ for five of the County's rivers. The regulation defined “high-risk CMZs” as those portions of the five rivers' channels that are “likely to migrate” during the next 50 years. In this appeal, Olympic Stewardship Foundation (Foundation) challenges the vegetation regulation, arguing that it violates (1) the Growth Management Act's (GMA) “best available science” requirement, RCW 36.70A.172(1); and (2) RCW 82.02.020's “constitutional nexus and rough proportionality” requirements. Additionally, the Foundation asserts that (3) the legislature's 2010 amendment to RCW 36.70A.480 invalidates the County's nonconforming use regulation for critical areas. We reject the Foundation's arguments and affirm the Western Washington Growth Management Hearings Board's (Board) final decision and order and its subsequent compliance order.

FACTS

¶ 2 The GMA, chapter 36.70A RCW,² requires participating counties to designate critical areas “where appropriate” and to adopt development regulations to protect these areas. RCW 36.70A.170(1)(d); RCW 36.70A.060(2). “Critical areas” include “geologically hazardous areas,” which are defined as “areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the sitting of commercial, residential, or industrial development consistent with public health or safety concerns.” RCW 36.70A.030(5)(e), (9). Counties must “include the best available science” when they designate critical areas or develop policies and development regulations to protect critical areas. RCW 36.70A.172(1).

I. 2008 Ordinance

¶ 3 On March 17, 2008, the Jefferson County Board of County Commissioners (BOCC) adopted critical areas ordinance 03–0317–08 (2008 ordinance), which added former chapter 18.22 (2008) to the Jefferson County Code (JCC). See Ordinance 03–0317–08, at 1, 16, 18, Ex. C. 1–42. Article V of former chapter 18.22 JCC designated “geologically hazardous areas” in the County and adopted protection standards for these areas. Former JCC 18.22.160, .170 (2008).

[166 Wash.App. 177] ¶ 4 Significantly, former JCC 18.22.160(2)(d) designated CMZs as a type of “geologically hazardous area” subject to article V's protection standards. The development regulations noted that CMZs are “subject to risk due to stream bank destabilization, rapid stream incision, stream bank erosion and shifts in the location of stream channels.” Former JCC 18.10.030 (2008).

¶ 5 Besides designating CMZs as “geologically hazardous areas,” former chapter 18.22 JCC defined CMZs to include three distinct components: “the present channel, the severe channel migration hazard area and the moderate channel migration hazard area.” Former JCC 18.10.030. Another subsection defined a “high risk CMZ area”—a designation that the BOCC may have intended as a synonym for “severe channel migration hazard area”—as an area where “channel migration is likely within the next 100 years.” Former JCC 18.22.160(2)(d). Most importantly, for purposes of this appeal, article V's protection standards imposed the following “vegetation retention” requirements on any future project involving a parcel that contained a CMZ:

(1) General. Application for a project on a parcel of real property containing a designated geologically hazardous area or its buffer shall adhere to the requirements set forth below.

....

(4) Vegetation Retention. The following provisions regarding vegetation retention shall apply:

(a) During clearing for roadways and utilities, all trees and understory lying outside of approved construction limits shall be retained; provided, that understory damaged during approved clearing operations may be pruned.

(b) Damage to vegetation retained during initial clearing activities shall be minimized by directional felling of trees to avoid critical areas and vegetation to be retained.

(c) Retained trees, understory and stumps may subsequently be cleared only if such clearing is necessary to complete the proposal involved in the triggering application.

Former JCC 18.22.170.

A. County's Consideration of “Best Available Science”

¶ 6 The BOCC included findings in the 2008 ordinance that addressed the GMA's “best available science” requirement:

81. ... Classification and/or designation of certain regions of the county as a particular type of critical area is, in many cases, based on information disseminated by others.... These citations to outside sources used to determine where critical areas are located within the County are hereby incorporated by reference as Best Available Science.

82. As part of the 2004 [comprehensive plan] update process, County staff and consultants reviewed current Best Available Science and received a report entitled: Christensen, D.2004.³ Review of Best Available Science for 2004 Comprehensive Plan and Development Regulations Update. September 22, 2004.

....

89. Jefferson County Natural Resources Division and Jefferson County Department of Community Development receive report Perkins, S.J. 2006. Final Report. Channel Migration Hazard Maps for the Dosewallips, Duckabush, Big Quilcene, and Little Quilcene Rivers, Jefferson County, Washington. Perkins Geosciences, in February, 2006.

90. USDI Bureau of Reclamation September, 2004 Channel Migration Zone Study Jefferson County, Washington[,] Duckabush, Dosewallips, Big Quilcene and Little Quilcene Rivers. Technical Service Center Flood Hydrology Group D–8530 Denver, Colorado, provides channel migration zone information.

91. A Framework for Delineating Channel Migration Zones, Washington State Department of Ecology, Washington State Department of Transportation, November, 2003. Ecology Final Draft Publication # 03–06–027, provides channel migration zone information.

Ordinance 03–0317–08, at 9–10. The ordinance stated that the Planning Commission, Department of Community Development, and the BOCC had considered and evaluated the scientific literature that the BOCC included in an attached 24–page bibliography and that the BOCC had developed the regulations in former chapter 18.22 JCC by synthesizing this scientific literature. Ordinance 03–0317–08, at 17.

B. The Foundation's Challenge to the 2008 Ordinance

¶ 7 On May 23, 2008, the Foundation, a nonprofit corporation, and seven of its members,⁴ challenged the 2008 ordinance by filing a petition for review with the Board. All seven members named in the petition reside in the County, but the administrative record apparently does not include any information about whether these members own property that is affected by the County's vegetation regulation.

¶ 8 The Foundation raised 10 issues in its prehearing brief to the Board, but only 2 are relevant in this appeal:

6. Did Jefferson County fail to comply with RCW 36.70A.172(1) [the GMA's “best available science” provision] when it adopted JCC 18.22.170(4) by imposing vegetation retention standards on all development in a “channel migration zone?”

....

10. Did Jefferson County fail to comply with RCW 36.70A.172(1) and RCW 36.70A.370,⁵ and fail to consider and balance planning goal 6 ( RCW 36.70A.020(6) (property rights)) in adopting JCC 18.22.160–.180, which changes existing development and uses into nonconforming uses?

1 Administrative Record (AR) at 158.⁶ The Foundation also suggested in its prehearing brief that because the “best available science” did not support the vegetation regulations, these regulations did not comply with “constitutional nexus and rough proportionality requirements.” 1 AR at 169.

¶ 9 Both parties attached numerous exhibits to their prehearing briefs, including the scientific studies that the BOCC cited in findings 82, 89, 90, and 91 of the ordinance. The parties also attached the following scientific information:

• 1 AR at 206–18 (“Channel Migration Zones,” a chapter from King County's Best Available Science, Volume 1 (Feb. 2004));

• 1 AR at 365–458 (“Lower Hoh River Channel Migration Study,” by Perkins Geosciences (June 2004));

• 1 AR at 627–635 (“Geology, geomorphology, and the restoration ecology of salmon,” by David R. Montgomery, University of Washington (Nov. 2004));

• 1 AR at 637–71 (“Channel Migration Hazard Maps for Eastern Jefferson County Rivers” by Susan Perkins, Perkins Geosciences (2004)); and

• 1 AR at 705–708 (“Management Recommendations for Washington's Priority Habitats: Riparian,” Washington Department of Fish and Wildlife (DFW web page)).

C. Board's Final Decision and Order

¶ 10 On November 19, 2008, the Board issued a final decision and order rejecting the majority of the Foundation's claims. With regard to issue six, the Foundation's “best available science” challenge, the Board noted that the County had relied on the studies listed in the 24–page bibliography attached to the ordinance—including the Bureau of Reclamation's CMZ study, the Department of Ecology's CMZ delineation study, and Perkins Geosciences's 2006 CMZ hazard maps—as the “best available science” to develop the critical areas regulations. The Board noted that in its interpretation, the Foundation was not arguing that these scientific studies did not constitute the “best available science” but, rather, that these studies did not support the adopted vegetation regulation.

¶ 11 The Board partly agreed with the Foundation on issue six, noting that...