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Concrete Nor'West v. Western Washington Growth Management Hearings Board

Court of Appeals of Washington, Division 2

February 3, 2015

Concrete Nor'West et al., Appellants
The Western Washington Growth Management Hearings Board, Respondent

Oral Argument September 11, 2014

Appeal from Thurston Superior Court. Docket No: 12-2-02214-1. Judge signing: Honorable Erik D Price. Judgment or order under review. Date filed: 10/16/2013.

Margaret Y. Archer (of Gordon Thomas Honeywell ), for appellants.

David S. McEachran, Prosecuting Attorney for Whatcom County, and Karen Frakes, Deputy ; and David S. Mann (of Gendler & Mann LLP ), for respondent.

Nancy B. Rogers on behalf of Washington Aggregates & Concrete Association, Inc., amicus curiae.

John P. Ahlers and Lindsay K. Taft on behalf of Associated General Contractors of Washington, amicus curiae.

Authored by Thomas R Bjorgen. Concurring: Jill M Johanson, Rich Melnick.


Page 352

Thomas R Bjorgen, J.

[185 Wn.App. 748] [¶1] Concrete Nor'West, a division of Miles Sand and Gravel Company, and 4M2K LLC (collectively CNW) appeal a superior court's affirmance of a final decision and order from the Western Washington Growth Management Hearings Board (Board). The Board found no violation of Washington's Growth Management Act (GMA), chapter 36.70A RCW, in Whatcom County's denial of a proposed amendment to its comprehensive plan and zoning map designating certain property as mineral resource land (MRL). CNW argues that the GMA, Whatcom County's comprehensive plan, and the Whatcom County Code (WCC) collectively required adoption of the amendment. Because we agree with the Board that they did not, we affirm.


[¶2] Concrete Nor'West operates a gravel mine on land in Whatcom County. Pursuant to the WCC, CNW applied to amend Whatcom County's comprehensive plan and its [185 Wn.App. 749] zoning map to expand an MRL overlay onto a parcel adjacent to its mine and to redesignate that parcel from commercial forestry land to MRL.[1]

[¶3] Staff at Whatcom County Planning and Development Services (planning staff) processed CNW's application and determined that the parcel at issue satisfied the MRL designation criteria found in Whatcom County's comprehensive plan. After analyzing the criteria prescribed in the WCC for considering an amendment to the comprehensive plan and determining that the amendment satisfied them, the planning staff recommended approving CNW's request. After a hearing, Whatcom County's Planning Commission concurred with the planning staff, recommended adopting the proposal, and forwarded CNW's application to the Whatcom County Council (Council) for consideration.

[¶4] CNW's proposal did not command a majority of the Council. Three members voted to pass the proposed amendment, three voted to reject it largely based on concerns about water quality and the effects of future mining on nearby agricultural lands, and one abstained. Because the proposed amendment failed to garner a majority of the Council, it was not adopted.

[¶5] CNW petitioned the Board for review of the Council's failure to pass the proposed amendment. CNW argued that because RCW 36.70A.120, part of the GMA, requires counties and cities to " perform [their] activities ... in conformity with [their] comprehensive plan[s]," and because the parcel met the comprehensive plan's criteria for designation as MRL, the Council had a duty under the comprehensive plan and the GMA to pass the proposed amendment and redesignate [185 Wn.App. 750] the land. Admin. Record (AR) at 9-10.

Page 353

The Board disagreed, stating that " the fatal flaw in Petitioners' argument is the lack of language in any of the cited Goals/Policies or the designation criteria that require the County to designate land as MRL when the designation criteria are met." AR at 1186 (footnote omitted). Because the Council had no duty to designate the land by adopting the amendment, the Board held that no violation of the GMA had occurred and that it lacked the power to grant CNW relief. Therefore, it dismissed CNW's petition for review with prejudice. AR at 1187-88 (citing Stafne v. Snohomish County, 174 Wn.2d 24, 37-38 & n.5, 271 P.3d 868 (2012) (quoting SR 9 / US 2 LLC v. Snohomish County, No. 08-3-0004, 2009 WL 1134039, at *4, (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Apr. 9, 2009); Cole v. Pierce County, No. 96-3-0009c, 1996 WL 678407, at *7-8, *10,  (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. July 31, 1996))).

[¶6] CNW petitioned for superior court review of the Board's decision under the Administrative Procedure Act, chapter 34.05 RCW. The superior court affirmed the Board, and CNW appealed.


I. The Standards of Review

[¶7] The legislature has charged the Board " with adjudicating GMA compliance, and, when necessary, with invalidating noncompliant comprehensive plans and development regulations." King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543, 552, 14 P.3d 133 (2000). By statute, the Board's review is deferential and it must

" find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the [185 Wn.App. 751] entire record before the board and in light of the goals and requirements of [the GMA]."

King County, 142 Wn.2d at 552 (alteration in original) (quoting RCW 36.70A.320(3)). An action by a state agency, county, or city is clearly erroneous if " the Board [is] 'left with the firm and definite conviction that a mistake has been committed.'" King County, 142 Wn.2d at 552 (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993)).

[¶8] We review a board decision by applying the standards of chapter 34.05 RCW directly to the record before the Board, sitting in the same position as the superior court. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wn.2d 38, 45, 959 P.2d 1091 (1998). We " review[ ] the Board's legal conclusions de novo," but, because of its expertise in administering the GMA, we accord substantial weight to the Board's interpretation of its provisions. King County, 142 Wn.2d at 553. CNW bears the burden of showing the invalidity of the Board's decision and, thus, as relevant here, the burden of showing that the Board " erroneously interpreted or applied the law." Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 367, 376-77, 259 P.3d 227 (2011) (citing RCW 34.05.570(1)(a), (3)(d)).


[¶9] Among the GMA's core requirements is the mandate that counties and cities subject to it " adopt comprehensive growth management plans and development regulations in accordance with the [GMA's] provisions." King County, 142 Wn.2d at 546. Whatcom County is subject to the GMA. See RCW 36.70A.040(1). For jurisdictions subject to it, the GMA requires periodic reviews and updates to comprehensive plans and development regulations and authorizes the consideration of comprehensive plan amendments no more than once a year, with exceptions. RCW 36.70A.130.

[185 Wn.App. 752] [¶10] The GMA prescribes 13 exclusive goals that cities and counties must use " for the purpose of guiding the development of comprehensive plans." RCW 36.70A.020. Two of these goals are especially pertinent to the present appeal: to " [m]aintain and enhance natural resource-based industries," RCW 36.70A.020(8), and to " [p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." RCW 36.70A.020(10).

Page 354

[¶11] As CNW notes, the GMA sets out specific procedures for accomplishing its goal of maintaining and enhancing natural resource-based industries. First, the GMA requires cities and counties to designate " where appropriate ... [m]ineral resource lands that are not already characterized by urban growth and that have long-term significance for the extraction of minerals." RCW 36.70A.170(1)(c). Next, RCW 36.70A.060(1) requires cities and counties within its scope to " adopt development regulations ... to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170." The GMA further requires that cities and counties operating under its strictures periodically review ...

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