Oral Argument: January 27, 2015.
Appeal from Spokane Superior Court. Docket No: 13-2-05088-3. Judge signing: Honorable Rebecca Baker. Judgment or order under review. Date filed: 01/27/2014.
Lawrence H. Haskell, Prosecuting Attorney for Spokane County, and Dan L. Catt, Deputy ; and David W. Hubert (of DWH Law PLLC ), for petitioner.
Robert W. Ferguson, Attorney General, Kristen K. Mitchell and Deborah L. Cade, Managing Assistants, and D. Maren Padilla-Huddleston, Assistant ; Richard K. Eichstaedt (of Center for Justice ); and Tim Trohimovich (of Futurewise ), for respondents.
Authored by Robert E. Lawrence-Berrey. Concurring: Laurel H. Siddoway, George B. Fearing.
Robert E. Lawrence-Berrey,
[188 Wn.App. 472] [¶1] The Washington State Growth Management Act (GMA), chapter 36.70A RCW, requires counties to provide for early and continuous public participation before a county or city votes on any change to a comprehensive plan or development regulation. Here, Spokane County (County) adopted Resolution 13-0689, which expanded the County's urban growth area (UGA) boundary by 4,125 acres and, without notice to the public, increased the population growth projection from 113,541 to 121,112 to fit the expanded boundary.
[¶2] The Neighborhood Alliance of Spokane County, Futurewise, the Five Mile Prairie Neighborhood Association, the Southgate Neighborhood Council, the Glenrose Association, Paul Kropp, Larry Kunz, Dan Henderson, the State of Washington Department of Commerce, and the Washington State Department of Transportation (collectively the Neighborhood Alliance) petitioned the Eastern Washington Growth Management Hearings Board [188 Wn.App. 473] (Board) for review of the resolution, alleging that the County failed
to comply with the public participation requirements of the GMA in adopting the increased population growth projection.
[¶3] The Board found that the County's adoption of the increased population projection represented a significant change in the comprehensive plan that required public review and comment. It remanded the resolution to the County for compliance with the GMA's public participation requirements. It also invalidated the resolution, finding its continued validity would substantially interfere with the fulfillment of GMA goals.
[¶4] On direct appeal from the Board's order, the County argues that the Board erred by concluding that a change in the population growth projection is a change to an amendment to a comprehensive plan under RCW 36.70A.035(2)(a). The County also asserts that the Board's order is not supported by substantial evidence and is the product of unlawful procedure. We conclude that the County's failure to notify the public of its increased population projection violates the GMA's public participation requirement. We also hold that the continuing validity of the resolution substantially interferes with the goals of the GMA. Accordingly, we affirm.
[¶5] In 2009, Spokane County adopted a population growth projection as the basis for planning regarding potential changes to its UGA. The Board of Commissioners for Spokane County adopted Resolution 09-0531, " IN THE MATTER OF ALLOCATION OF THE 20 YEAR POPULATION FORECAST FOR 2011 to 2031," which further provides " the Board hereby adopts for planning purposes regarding the review and revision if necessary of the urban growth area boundary the population projection and allocations for the 20 year period ending in 2031 as described [188 Wn.App. 474] herein and set forth in Attachment 'A.'" Admin. Record (AR) at 963, 965. Attachment A adopted a 2008 to 2031 total population projection of 612,226 for 2031, with a projection of urban population growth of 114,919 persons between 2008 and 2031.
[¶6] In the process of planning for the UGA expansion, the County prepared two environmental impact statements (EISs). In 2011, the County prepared a draft and final EIS examining four alternatives for UGA expansion. In 2012, the County prepared another draft and final EIS adding a fifth alternative to the analysis. Both of the EISs used a 2011 to 2031 UGA population growth projection of 113,541, consistent with the projection adopted in Resolution 09-0531. The number was a little lower than the 2008 to 2031 UGA population growth projection, apparently to adjust for the 2011 to 2031 shorter time horizon. Using this population growth projection, all five alternatives showed a population capacity surplus, meaning that there was no need to expand the UGA.
[¶7] On July 18, 2013, the Spokane County Board of County Commissioners adopted Resolution 13-0689, which added 4,125 acres of land to Spokane County's UGA and increased the UGA population growth projection from 113,541 to 121,112. The County's unilateral increase of the population projection appears to have been a retrofit driven by the desire to increase the UGA. During the Board hearing, the Board asked how the County could change the population forecast after the comment period had been completed. The county attorney, David Hubert, responded:
Well, I don't think that the change itself is de minimis. I don't think that the difference in the numbers is de minimis or insignificant in any sense.
The fact that the analysis was made based on the initial population projection, the County's answer is that that was always--it was always anticipated that those numbers would be the starting point. We would do our analysis. We would look [188 Wn.App. 475] at what that means, what that population projection would require in terms of a size of a UGA and capital facilities and so on and so forth as a starting point so that we would know that if we choose one of the alternatives, then there's going to be a difference and that we're going to then have to adjust the land quantity analysis. We're going to have to adjust the capital facilities plan
and everything to accommodate the final UGA boundary that's actually adopted.
CP at 127-28.
[¶8] A Board member then asked if the population projection was driven by " the desired size of the UGA as opposed to a [real] population projection," observing, " We're fitting the population projection into the desired UGA size; isn't that true?" CP at 128. Mr. Hubert answered:
Well, we are fitting the population into the UGA boundary that's adopted. ... [I]n developed areas that aren't yet in the UGA, those need to be considered for being put in the UGA, if possible, and so forth. And so I agree with you that, yes, we're saying that the UGA boundary is going to tell us what population projection we have to adopt, but it wasn't simply a desire kind of a decision. It was a complex decision that was made, we believe, under the requirements of the GMA.
CP at 128-29. During oral argument before this court, Mr. Hubert conceded that the County drew its desired urban growth area map and then increased the population growth projection to 121,270 to fit the chosen area.
[¶9] The County published the last public notice inviting public comment on the proposed changes to the UGA on February 3, 2013. The notice stated that the County was considering " PROPOSED REVISIONS TO THE SPOKANE [188 Wn.App. 476] COUNTY URBAN GROWTH AREA BOUNDARY INCLUDING CONCURRENT COMPREHENSIVE PLAN MAP AND ZONING MAP AMENDMENTS." AR at 1041. It provided in part:
The proposal examines the adequacy of the County's Urban Growth Area and its ability to provide for future growth. The action includes amendment to the Spokane County Comprehensive Plan and Zoning Code maps should modification of the UGA be deemed necessary. Five alternative land use scenarios are considered within the proposal. A final decision on the UGA update may include any combination of study areas from the different alternatives.
AR at 1041.
[¶10] The notice indicated that the Spokane County Planning Commission and the Steering Committee of Elected Officials for Spokane County had made recommendations and that a topic of discussion at the meeting may include environmental documents that had been prepared with the proposal. The notice also referred to the 2011 and 2012 EISs. However, neither the notice nor the recommendations suggested that the County was considering any changes to the UGA population growth projection.
[¶11] The Neighborhood Alliance parties filed two petitions for review alleging that the County had not complied with the public participation requirements of the GMA in adopting the expanded UGA. They also asserted that the resolution should be declared invalid because it substantially interfered with GMA goals. The State Department of Commerce and State Department of Transportation filed a supporting response arguing that " population numbers are a necessary precursor to decisions on designations of the UGA" and that the County's unilateral adjustment of these numbers violated the GMA. AR at 1096.
[¶12] The Board granted the respondents' motion and remanded the resolution to the County to address the public participation flaws regarding the population projection [188 Wn.App. 477] of 121,112. The Board specifically found (1) the continued validity of the new population projection of 121,112, which had not been subjected to adequate public participation processes, would substantially interfere with the fulfillment of GMA goals, (2) there was a significant risk of vesting, and (3) the resolution was invalid in its entirety and required public participation. It concluded, " [b]ased on the importance of the public participation
requirements of the GMA, [and] the basic significance of the County['s] adopted population growth target, ... the Board determines [that] Resolution No. 13-0689 would substantially interfere with the fulfillment of ...