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Save Our Scenic Area v. Skamania County

Supreme Court of Washington, En Banc

June 11, 2015

Save Our Scenic Area et al., Respondents
v.
Skamania County, Petitioner

Argued February 17, 2015

Susan E. Drummond (of Law Offices of Susan E. Drummond ); and Adam N. Kick, Prosecuting Attorney for Skamania County, for petitioner.

J. Richard Aramburu (of Aramburu & Eustis LLP ); Gary K. Kahn (of Reeves Kahn Hennessy & Elkins ); and Nathan J. Baker (of Friends of the Columbia Gorge ), for respondents.

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

Tim Trohimovich on behalf of Futurewise, Friends of the White Salmon River, Columbia Riverkeeper, Spokane Riverkeeper, Neighborhood Alliance of Spokane County, Grays Harbor Audubon Society, Friends of Grays Harbor, Palouse Audubon Society, Spokane Audubon Society, Vancouver Audubon Society, Willapa Hills Audubon Society, and North Central Washington Audubon Society, amici curiae.

AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Steven C. González. AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles K. Wiggins, Justice Mary I. Yu.

OPINION

Page 178

 Johnson, J.

[183 Wn.2d 458] [¶1] This case involves whether the plaintiffs' claims under the Growth Management Act (GMA), chapter 36.70A RCW, and Planning Enabling Act of the State of Washington (PEA), chapter 36.70 RCW, were properly dismissed as time barred. [1] The trial court granted the defendant-county's summary judgment motion on each of the plaintiffs' claims, but the Court of Appeals reversed on the GMA and PEA claims, reasoning that a genuine issue of fact remained as to (1) whether Skamania County actually completed periodic review on August 2, 2005, which Skamania County argues triggered the clock for the GMA claim, and (2) the date on which the inconsistency, if any, arose between the unmapped classification and the conservancy designation, which would have triggered the clock for the PEA claim. The Court of Appeals remanded for further factual proceedings to address the time bar issue.

[183 Wn.2d 459] [¶2] We agree with the Court of Appeals in part, holding that both claims were timely because (1) inaction generally does not trigger the GMA 60-day appeal period and (2) in this case, no actionable inconsistency existed between the 1986 ordinance and the " 2007 Comprehensive Plan" (2007 Plan) until August 2012. Because further factual development is unnecessary to address the time bar issue, we affirm the Court of Appeals' reversal of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

Facts

[¶3] Skamania County is a rural, heavily forested county located in the southwestern region of Washington State. Roughly 90 percent of the county is publically owned federal or state park forest area, with only about 3 percent of the county open for private development. Because the county is sparsely populated and developed, the county is statutorily considered 1 of 10 " Counties Planning for Critical Areas and Natural Resource Lands," or " CARL" counties, in Washington State. Clerk's Papers (CP) at

Page 179

28. These CARL counties are sometimes referred to as " partial planning counties," and they are obligated only to designate critical areas and natural resource lands. RCW 36.70A.170; Resp'ts' Suppl. Br. at 3 n.4. CARL counties are not under the same obligation to fully plan and zone their lands like " full planning" counties. See ch. 36.70A RCW.

[¶4] In 1986, Skamania County (County) adopted a zoning ordinance, codified at Title 21 Skamania County Code (SCC), which applied an " unmapped" classification to all those areas without formal designation. SCC 21.64.010. The ordinance provided, " In the areas classified as unmapped (UNM) all uses which have not been declared a nuisance by statute, resolution, ordinance, or court of jurisdiction are allowable." SCC 21.64.020.

[¶5] In 1993, the County adopted zoning classifications and development regulations, codified at Title 22 SCC, to [183 Wn.2d 460] bring certain federal lands in compliance with the federal Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544. The ordinance applied exclusively to lands located within the Columbia River Gorge National Scenic Area. For several years thereafter, much of the County remained " unmapped."

[¶6] On August 2, 2005, the County adopted Resolution 2005-35 (Resolution), which the County passed in order to comply with its GMA obligation to designate natural resource lands under RCW 36.70A.170. The Resolution declared, " [T]he designation of forest and agricultural lands within the [Columbia River Gorge] National Scenic Area and the development regulations adopted under SCC Title 22 meets the requirements of the Growth Management Act (RCW 36.70A) for the conservation of forest, agricultural, and mineral resource lands." CP at 34. The respondents do not dispute that adopting the Resolution satisfied the County's obligation under the GMA to designate its natural resource lands. Br. of Appellants at 19 n.24. However, the County concedes that this Resolution did not meet its obligation to designate critical areas. [2]

[¶7] On July 10, 2007, the County revised its original 1977 comprehensive plan and designated much of the County's private forest area " Conservancy." The plan provided, " The Conservancy land use area is intended to provide for the conservation and management of existing natural resources in order to achieve a sustained yield of these resources, and to conserve wildlife resources and habitats." CP at 213. As a [183 Wn.2d 461] result, some areas in Skamania County carry both an unmapped zoning classification and a conservancy land designation.

[¶8] That same day, the County enacted an ordinance imposing a six-month building moratorium applicable to approximately 15,000 acres of unmapped private land within the unincorporated portion of the County. According to the ordinance, the purpose of the moratorium was " to maintain the status quo of the area pending the County's consideration of developing zoning classifications for the areas covered by the newly adopted 2007 Plan and completing the Critical Areas Update Process." CP at 258. The County intended that the moratorium remain in effect " until the zoning classifications related to the 2007 Comprehensive Plan and the Critical Areas Update Process [were] complete." CP at 258. The County renewed this moratorium every six months for five years, each time reiterating that the County was still in the process of designating lands consistent with the 2007 Plan.

[¶9] On August 21, 2012, the County renewed the moratorium for another six-month period but substantially modified its scope, reducing the moratorium to an approximately

Page 180

4,500-acre region known as the High Lakes. Like each preceding moratorium, the ordinance stated that the County was in the process of updating the zoning classifications consistent with the 2007 Plan.

[¶10] Soon after portions of the moratorium were repealed, the County approved plans for the construction of a large industrial wind turbine farm, known as the Whistling Ridge Energy Project, to be built on the High Lakes site. In a separate suit, the two respondents in this case, Friends of the Columbia Gorge and Save Our Scenic Area (collectively SOSA), challenged the project's approval on the grounds that it was inconsistent with the 2007 Plan's conservancy land designation. But the 2007 Plan's " Conservancy" designation does not impose enforceable restrictions on land use; restrictions are achieved only by zoning. The area is still [183 Wn.2d 462] classified as " unmapped" lands under the 1986 ordinance, and, thus, this court held that the industrial development was permissible because ...


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