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In re Expansion of Spokane County Urban Growth Area

Court of Appeals of Washington, Division 2

May 20, 2014

In the Matter of the Expansion of the Spokane County Urban Growth Area . Kathy Miotke et al., Appellants ,
Spokane County, Respondent

Oral Argument January 14, 2014.

Page 435

Appeal from Thurston Superior Court. Docket No: 11-2-02087-5. Date filed: 10/10/2012. Judge signing: Honorable Lisa L Sutton.

Richard K. Eichstaedt (of Center for Justice ), for appellants.

Steven J. Tucker, Prosecuting Attorney, and David W. Hubert, Deputy, for respondent.

AUTHOR: Jill M Johanson, J. We concur: Lisa Worswick, C.J., Thomas R Bjorgen, J.


Page 436

[181 Wn.App. 372] Johanson, J.

¶ 1 After Spokane County (County) expanded its comprehensive plan's " Urban Growth Area" (UGA), property owners in the newly-expanded UGA commenced urban development. Kathy Miotke and the " Neighborhood Alliance of Spokane" (Miotke) petitioned the Eastern Washington Growth Management Hearings Board (Board) for review of the County's expansion. The Board found the County's UGA expansion invalid under the Growth Management Act (GMA), ch. 36.70A RCW. In an attempt to address the invalidity determination, the County passed a resolution that repealed the UGA expansion resolution. Based on the repeal of the UGA expansion resolution, the Board found the County in compliance with the GMA. Miotke appeals the Board's decision, arguing that the mere repeal of the UGA expansion resolution fails to establish GMA compliance. We reverse the superior court decision upholding the Board and remand to the Board to determine whether repeal of the UGA expansion, given the urban development vested under it, has remedied the expansion's interference with GMA goals.

[181 Wn.App. 373] FACTS

¶ 2 In August 2005, Miotke petitioned the Board to review the County's enactment of resolution 5-0649, which amended the County's comprehensive plan by expanding its UGA. In February 2006, the Board issued a final decision and order of invalidity (Final Order), finding that the County's expansion of its UGA violated the GMA. Specifically, the Board found that resolution 5-0649 interfered with the GMA goals 1, 2, 3, and 12.[1]

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The Board found that the County failed to prepare a land quality analysis and failed to plan for capital facilities, utilities, and transportation among other things. The Board concluded that the County failed to " show its work" and ordered the County to bring itself into compliance with the GMA. Administrative Record (AR) at 76.

¶ 3 Between the enactment of resolution 5-0649 and the Board finding that resolution invalid for interfering with GMA goals, development permits were submitted and accepted by the County, thereby vesting urban development rights in the newly expanded UGA. Urban development then occurred in these areas. This development is the center of the dispute here.

¶ 4 After its February 2006 Final Order, the Board twice found the County in continued noncompliance with the GMA. In July 2006, the Board found that the County was in noncompliance because it had failed to resolve any of the [181 Wn.App. 374] issues enumerated in the Final Order. The Board found further that the County failed to address " other issues of non-compliance such as the 'island UGA.'" [2] AR at 259.

¶ 5 In October, the Board determined that the County remained noncompliant, having resolved none of the issues set forth in the Final Order. The Board recognized that the County had made progress, but the Board raised concerns regarding the County's use of an " emergency provision" to allow further UGA expansion. The Board ordered the County to comply by December 6, 2006. Shortly thereafter, various cities within the County reported that their contributions to the planning process would not be available until after the County's compliance deadline.[3] In order to meet its deadline, the County considered removal of the subject land from the UGA. Endeavoring to achieve GMA compliance, the County passed resolution 7-0077, which repealed resolution 5-0649, shrinking the UGA back to the borders that existed before the adoption of resolution 5-0649.

¶ 6 Miotke submitted additional briefing urging the Board to conclude that adopting resolution 7-0077 and repealing the expanded UGA was inadequate to bring the County into compliance. For example, Miotke argued, " [T]he paper exercise of re-designation [of the UGAs] not only fails to comply with the Board's Final Order, it is inconsistent with other provisions of the GMA and substantially interferes with other GMA goals." AR at 633. Nevertheless, on March 5, 2007, the Board found that the County was now in GMA compliance: " With the repeal of the portions of the resolution which enlarged the UGA, the objected to action was removed and the County brought itself into compliance." AR at 698. The Board did not consider in either the order finding compliance or the order on reconsideration [181 Wn.App. 375] the effect of resolution 7-0077 with regard to the specific GMA violations enumerated by the Board in its Final Order. On March 15, 2007, Miotke unsuccessfully moved for reconsideration. Miotke now appeals the superior court's order affirming the Board's Final Order.


I. APA Standard of Review

¶ 7 We review a hearings board's decision under the Administrative Procedure Act (APA), ch. 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 367, 376, 259 P.3d 227 (2011). We apply APA standards directly to the Board's record, performing the same function as the superior court. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998). The party challenging the Board's decision bears the burden of proving it is invalid. RCW 34.05.570(1)(a). The decision is invalid

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if it suffers from at least one of many enumerated infirmities.[4] RCW 34.05.570(3).

¶ 8 We review de novo errors of law alleged under RCW 34.05.570(3)(d). Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008). We accord the Board's interpretation of the GMA " substantial weight." King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). But the ...

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