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Protect Peninsula's Future v. Growth Management Hearings Board

Court of Appeals of Washington, Division 2

February 18, 2015

Protect the Peninsula's Future, Appellant,
v.
The Growth Management Hearings Board et al., Respondents

Appeal from Jefferson Superior Court. Docket No: 13-2-00009-1. Judgment or order under review. Date filed: 08/28/2013. Judge signing: Honorable Keith C Harper.

Gerald B. Steel, for appellant.

Robert W. Ferguson, Attorney General, and Dionne M. Padilla-Huddleston, Assistant, for respondent Growth Management Hearings Board.

Holly D. Golden and Stephen H. Roos (of Hillis Clark Martin & Peterson ), for respondent Clallam County.

Authored by Bradley A. Maxa. Concurring: Jill M Johanson, Lisa Sutton.

OPINION

Page 706

[185 Wn.App. 963] Maxa, J.

¶ 1 Protect the Peninsula's Future (PPF) appeals the Western Washington Growth Management Hearings Board's (Board) dismissal of its compliance action seeking to require Clallam County to adopt new critical areas regulations that comply with the

Page 707

Growth Management Act (GMA).[1] PPF argues that new regulations are required because the Board invalidated portions of Clallam's existing critical areas regulations in 2001 (a decision that we affirmed in part on appeal) and because the legislature-imposed moratorium on changes to critical areas regulations that took effect shortly after that invalidation now has ended.

¶ 2 Clallam argues that the legislature implicitly validated Clallam's critical areas regulations by incorporating them into 2011 GMA amendments that established a new program, the Voluntary Stewardship Program (VSP). One of the VSP statutes, RCW 36.70A.735(1)(b), provides that counties that have elected to participate in the VSP but are [185 Wn.App. 964] unable to implement a VSP work plan instead can adopt the critical areas regulations of one of four counties, one of which is Clallam, to achieve compliance. Clallam claims that because some other counties can comply with the GMA by adopting Clallam's existing regulations, the legislature necessarily determined that those regulations comply with the GMA.

¶ 3 We hold under the plain language of RCW 36.70A.735(1)(b) that the legislature chose to distinguish alternative pathways to GMA compliance for counties that have elected to participate in the VSP and counties that have not, and that only the VSP counties can comply with the GMA by adopting Clallam's regulations. Therefore, we hold that RCW 36.70A.735(1)(b) does not reflect a legislative determination that Clallam's regulations unconditionally comply with the GMA's critical areas protection requirements. Because the Board based its dismissal of PPF's compliance action on a contrary reading of the statute, we reverse the Board's dismissal and remand to the Board for further proceedings consistent with this opinion.

FACTS

¶ 4 In December 1999, Clallam adopted critical areas regulations, as required by RCW 36.70A.060, part of the GMA. Part of Clallam's regulations, Clallam County Code (CCC) 27.12.035(7), exempted preexisting agricultural operations from the critical areas protection requirements. PPF petitioned the Board to invalidate the agricultural exemption and other parts of the ordinance. The Board found that the agricultural exemption did not comply with the GMA requirements and invalidated that exemption.

¶ 5 In response, Clallam amended CCC 27.12.035(7) in 2001. The amended ordinance limited the agricultural exemption to preexisting agricultural uses on land classified as farm and agricultural land under the open space tax program, chapter 84.34 RCW, and required that exempt [185 Wn.App. 965] agricultural operations utilize best management practices. PPF again petitioned the Board for review. The Board held that the amended agricultural exemption was invalid, noting that it did not limit its application to designated agricultural resource areas. On appeal, we held that the Board correctly ruled that Clallam could not exempt all preexisting agricultural uses from critical areas regulations. Clallam County v. W. Wash. Growth Mgmt. Hr'gs Bd., 130 Wn.App. 127, 133-37, 140, 121 P.3d 764 (2005). However, we also clarified that Clallam's agricultural exemption need not be limited to designated agricultural resource lands. Id. at 138-40. We remanded to the Board for further proceedings, including redetermination of whether the agricultural exemption complied with the GMA. Id. at 141.

¶ 6 Before the Board could determine on remand whether Clallam's agricultural exemption complied with the GMA, the legislature in 2007 enacted a moratorium on alteration of GMA critical areas regulations and initiated a policy study. Due to the moratorium, Clallam did not change its critical areas regulations. The moratorium lasted until 2011, when the legislature amended the GMA to add the VSP[2]. The VSP allows participating counties to comply with the GMA by implementing a watershed work plan that protects critical areas. RCW 36.70A.720. A participating county that is unable to implement a VSP work plan may achieve GMA compliance by, among other things, adopting

Page 708

the critical areas regulations of one of four counties: Clallam, Clark, King, or Whatcom. RCW 36.70A.735(1)(b).

¶ 7 In order to participate in the VSP, counties had to elect to participate in the program by January 22, 2012, six months after the effective date of the 2011 amendments. RCW 36.70A.710(1)(b). Counties that did not elect to participate remained subject to the original GMA provisions requiring regulations protecting critical areas. RCW 36.70A.710(6). Clallam did not elect to participate in the VSP.

[185 Wn.App. 966] ¶ 8 In August 2012, PPF reinitiated the delayed compliance review before the Board. Clallam moved to dismiss the compliance action, claiming that by enacting RCW 36.70A.735(1)(b) the legislature had validated Clallam's 2001 critical areas regulations and superseded the Board's invalidation order. Therefore, Clallam argued that its regulations were now fully compliant with the GMA. The Board agreed with Clallam's interpretation of RCW 36.70A.735(1)(b), stating that " [c]learly the legislature concluded the development regulations of those four counties were sufficiently protective of critical areas in areas used for agriculture." Clerk's Papers (CP) at 22. As a result, the Board ...


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