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Whatcom County v. Western Washington Growth Management Hearings Board

Court of Appeals of Washington, Division 1

February 23, 2015

Whatcom County et al., Petitioners,
v.
The Western Washington Growth Management Hearings Board, Respondent

Oral Argument January 15, 2015

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Appeal from Skagit Superior Court. Docket No: 13-2-01147-9. Judge signing: Honorable Michael E Rickert. Judgment or order under review. Date filed: 08/15/2013.

Jay P. Derr, Tadas A. Kisielius, and Duncan M. Greene (of Van Ness Feldman LLP ); and David S. McEachran, Prosecuting Attorney for Whatcom County, and Karen Frakes, Deputy, for petitioner Whatcom County.

Jean O'Meara Melious (of Nossaman LLP ), for petitioners Eric Hirst, Laura Leigh Brakke, Wendy Harris, and David Stalheim.

Tim Trohimovich (of Futurewise ), for petitioner Futurewise

Robert W. Ferguson, Attorney General, and Diane L. McDaniel, Managing Assistant, for respondent.

Alan M. Reichman, Managing Assistant Attorney General, on behalf of Department of Ecology, amicus curiae.

Rachael P. Osborn and David L. Monthie on behalf of Center for Environmental Law & Policy, amicus curiae.

Bill Clarke and Sarah E. Mack on behalf of Washington Realtors, Building Industry Association of Washington, and Washington State Farm Bureau, amici curiae.

Josh Weiss and Alethea Hart on behalf of Washington State Association of Counties, amicus curiae.

Authored by Ronald Cox. Concurring: Michael J. Trickey, Ann Schindler.

OPINION

Page 1260

Cox, J.

[186 Wn.App. 39] ¶ 1 Whatcom County appeals the Growth Management Hearings Board's Final Decision and Order [186 Wn.App. 40] dated June 7, 2013 (FDO). The Board determined that the rural element of the County's comprehensive plan and zoning code, as amended by Ordinance No. 2012-032, fails to comply with the Growth Management Act (GMA), chapter 36.70A RCW, Eric Hirst, Laura Leigh Brakke, Wendy Harris, David Stalheim, and Futurewise (collectively Hirst) cross appeal the FDO, arguing that the Board erred by declining to declare the ordinance invalid.

¶ 2 We hold that the Board engaged in unlawful procedure by taking official notice of and relying on two documents without first providing the County the opportunity to contest information in these documents. We also hold that the Board erroneously interpreted and applied the law in determining that Ordinance No. 2012-032 fails to comply with the GMA. But the Board did not abuse its discretion by declining to declare the ordinance invalid. We affirm in part, reverse in part, and remand for further proceedings.

¶ 3 In August 2012, the County adopted Ordinance No. 2012-032.[1] By its terms, Ordinance No. 2012-032 amended the Whatcom County Comprehensive Plan and Zoning Code.[2] Among other things, this ordinance amended certain rural element policies and adopted by reference various preexisting county regulations. These amendments were in response to a series of prior rulings from the Board and the courts requiring that the rural element of the County's comprehensive plan and development regulations be brought into compliance with the GMA.

¶ 4 Hirst petitioned the Board for review, challenging the adoption of Ordinance No. 2012-032. In particular, Hirst challenged the ordinance on rural land use planning, which included a challenge to the adequacy of the County's measures to protect surface and groundwater resources.

¶ 5 The Board held a hearing in April 2013. Thereafter, the Board issued its FDO. The Board concluded that the [186 Wn.App. 41] rural element amendments to the County's comprehensive plan and development regulations do not constitute measures to protect rural character by protecting surface and groundwater resources. Thus, according to the Board, Hirst met its burden of demonstrating that the County failed to comply with the GMA, specifically RCW 36.70A.070(5)(c).[3] But the Board denied Hirst's request for a declaration of invalidity.[4] The Board remanded the ordinance to the County to take corrective action within 180 days.[5]

¶ 6 Both parties appealed. The County sought review in Skagit County Superior Court, challenging the Board's determination of noncompliance with the GMA. Hirst sought review in Thurston County Superior Court, challenging the Board's decision not to declare the ordinance invalid.

¶ 7 Thurston County Superior Court transferred Hirst's appeal to Skagit County Superior Court, where the cases were consolidated under the Skagit County cause number.[6] The Board issued its certificates of appealability regarding the FDO, certifying the consolidated appeals for direct review by this court.

¶ 8 In April 2014, the Board held a compliance hearing. The Board concluded that " Whatcom County [was] in continuing non-compliance with the Growth Management Act [as determined in the FDO]." [7] The Board issued a Second Order on Compliance.[8]

¶ 9 The County moved for discretionary review of the FDO, and we accepted the consolidated appeals for direct review. We also granted the County's request ...


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