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Heritage Baptist Church v. Central Puget Sound Growth Management Hearings Board

Court of Appeals of Washington, Division 1

March 12, 2018

HERITAGE BAPTIST CHURCH, a Washington nonprofit organization Appellant,

          TRICKEY, J.

         Heritage Baptist Church (Heritage) sought to rezone its property in the city of Monroe (City). The City enacted ordinances in 2013 enabling the rezone. In 2014, the Central Puget Sound Growth Management Hearings Board (the Board) issued an order of invalidity (2014 order) and remanded the ordinances to the City. In 2015, Heritage and the City published a supplemental environmental impact statement (SEIS) and the City adopted new ordinances for the rezone. In 2016, the Board issued an order finding continuing noncompliance (2016 order). Heritage directly appeals the Board's 2016 order. Finding no error, we affirm.


         The Property

         Heritage owns approximately 43 acres of undeveloped land (the Property) split into five parcels near the City's eastern boundary. The Property is located within the Skykomish River drainage basin and floodplain, and is bordered by State Route 2 to the south and a steep hillside to the north. The Property regularly floods, and can experience up to 8 feet of flooding during a 100-year flood event. The City's regulations and Federal Emergency Management Agency (FEMA) 1999 Flood Insurance Rate Maps (FIRMs) adopted by the City state that the Property is in a 500-year floodplain. Preliminary 2007 FIRMs place the Property within a 100-year floodplain, although the City and FEMA have not adopted these maps.

         The Skykomish River valley is bordered by several ridges. The Property is located primarily on the valley floor and extends up an adjacent slope between 60 and 250 feet. The northern portion of the Property and adjoining properties are classified by the United States Department of Agriculture as severe erosion hazard areas. A geological report noted several recent landslides and evidence of slope failure under a home and its associated property at the top of the northwest section of the slope.

         An oxbow slough designated as a Type 1 stream runs through the Property and connects to the Skykomish River. The slough is designated as an urban conservancy, and supports listed threatened and endangered species of fish.

         The Property contains category two and category three wetlands, which are critical areas protected under the Monroe Municipal Code (MMC). The Property also contains a native growth protection area (NGPA). The NGPA and the City's critical area regulations limit the presently developable area of the Property to approximately 11.3 acres.

         The Property is currently zoned as limited open space (LOS). LOS zoning allows "at a minimum level of development, one dwelling unit per five acres, " with commercial or more intensive uses only allowed as conditional uses.

         In July 2010, Heritage and East Monroe Economic Development Group, LLC submitted an application to amend the City's comprehensive plan and rezone the Property from LOS to general commercial (GC). GC zoning would allow for more intensive development, with the final environmental impact statement (FEIS) proposing "a mixture of commercial development, including retail and restaurant development."[1] In 2012, the City issued a final phased environmental impact statement (FPEIS) and adopted Ordinance 018/2012 to amend its comprehensive plan to rezone the Property.

         Lowell Anderson, a resident of the City, challenged the FPEIS and Ordinance 018/2012 before the Monroe Hearing Examiner. The hearing examiner concluded that the FPEIS was inadequate as a matter of law.[2] The Monroe City Council repealed Ordinance 018/2012 and re-docketed the Property for comprehensive plan review in 2013. Anderson's challenges to the FPEIS and ordinance were dismissed as moot.

         Heritage hired PACE Engineering, Inc. to perform environmental impact analyses to support the rezone. In September 2013, the City, as lead agency under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, issued a FEIS for the rezone. The FEIS offered three alternative development plans to Heritage's proposed reclassification: (1) an LOS alternative, including a fitness facility, daycare, and church; (2) a GC alternative, including retail and restaurants; and (3) a mixed use commercial, including professional offices, a medical center, and residential development.

         Anderson again challenged the FEIS before the City's hearing examiner, arguing that the FEIS did not adequately consider and analyze the Property's present use or the environmental impacts of the reclassification. The hearing examiner upheld the adequacy of the FEIS.

         In December 2013, the Monroe City Council adopted Ordinance 022/2013 to amend the comprehensive plan and Ordinance 024/2013 to reclassify the Property from LOS to GC (together, 2013 ordinances). Brandi Blair, Matthew Blair, Brett Blair, James Blair, Anderson, Douglas Hamar, and Chad McCammon challenged the 2013 ordinances before the Board in several petitions for review. The petitions were consolidated before the Board.[3]

         In August 2014, the Board issued its final decision and order.[4] The 2014 order found that the FEIS was inadequate under SEPA because it did not properly inform decision-makers of the impacts of the rezone. The Board concluded that the continuing validity of the 2013 ordinances would interfere with the Growth Management Act's (GMA), chapter 36.70A RCW, goal of protecting the environment. The Board remanded the 2013 ordinances to the City and entered a determination of invalidity.

         The City did not appeal the Board's 2014 order. Heritage intervened as a compliance participant to assist the City with complying with the Board's 2014 order. In August 2015, the City, Heritage, and PACE issued a draft SEIS. The draft SEIS incorporated the 2013 FEIS by reference and included appendices with expert reports examining the conditions of the Property's wetlands and habitats, the impacts of fill and compensatory flood storage, and the Property's topography and landslide hazards.

         In September 2015, PACE presented the draft SEIS to the Monroe Planning Commission. The planning commission voted six to one against recommending that the City move forward with the reclassification.

         In October 2015, PACE and the City's SEPA official presented the draft SEIS to the Monroe City Council. On November 2, 2015, the City released the final SEIS. On November 24, 2015, the Monroe City Council voted four to three to adopt Ordinances 015/2015 and 016/2015 (2015 ordinances), which allowed the rezone.

         The Board held a compliance hearing and, in April 2016, issued an order finding continuing noncompliance (2016 order). The Board found that the SEIS used a true no-action development alternative. But it also found that the SEIS failed to provide an impartial assessment or sufficient discussion of the probable environmental consequences of the reclassification, properly analyze the foreseeable adverse environmental impacts on the entire Property, and provide a reasonably thorough analysis of significant aspects of the possible environmental consequences. The Board concluded that the 2015 ordinances would substantially interfere with GMA's goal of protecting the environment. The Board remanded the 2015 ordinances to the City and entered a determination of invalidity.

         Heritage applied for direct review of the Board's decision and sought discretionary review by this court. The Snohomish Superior Court, having heard no objection from the Board, certified the case for direct review by this court. On August 8, 2016, a commissioner of this court granted discretionary review.


         Scope of 2016 Order

         Heritage argues that the Board[5] improperly expanded the scope of its review in its 2016 order to include issues that had been dismissed by the 2014 order. But Heritage cites only to the concurring opinion of the Board's 2016 order, which criticized Heritage's failure to provide a new transportation analysis despite the 2014 order's determination that the City's traffic conclusions were not credible. Heritage has not demonstrated that the concurring opinion required additional actions or reargument of the issue before the Board. We reject Heritage's argument and conclude that the Board did not improperly expand the 2016 order's scope of review.

         Review Framework

         Board Review of Local Planning Actions

         The Board "is charged with adjudicating GMA compliance and invalidating noncompliant plans and development regulations." Lewis County v. W. Wash. Growth Mgmt. Hr'gs Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006) (citing RCW 36.70A.280, .302). The Board hears petitions pertaining to "state agency, county, or city planning" compliance with the GMA or an environmental impact statement's (EIS) compliance with SEPA. RCW 36.70A.280(1)(a); see also chapter 41.21C RCW.

         Under the GMA, comprehensive plans and development regulations are presumed valid when adopted, and thus the Board must "grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of the GMA. RCW 36.70A.320(1)-(2). But "deference to counties remains 'bounded ... by the goals and requirements of the GMA.'" Whatcom County v. Hirst, 186 Wn.2d 648, 667, 381 P.3d 1 (2016) (quoting King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543, 561, 14 P.3d 133 (2000) (hereinafter referred to as Soccer Fields)[6]). Therefore, the Board "'shall find compliance' unless it determines that a county action 'is clearly erroneous in view of the entire record before the board and in light of the goals and requirements' of the GMA." Lewis County, 157 Wn.2d at 497 (quoting RCW 36.70A.320(3)).

         "To find an action 'clearly erroneous, ' the Board must have a 'firm and definite conviction that a mistake has been committed.'" Lewis County, 157 Wn.2d at 497 (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993)). "[A] board's ruling that fails to apply this 'more deferential standard of review' to a county's action is not entitled to deference from [an appellate court]." Quadrant Corp. v. State Growth Mgmt. Hr'gs Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005).

         If the Board finds that the state agency, county, or city is not in compliance with the GMA, it "shall remand the matter to the affected state agency, county, or city." RCW 36.70A.300(3)(b). "A county or city subject to a determination of invalidity made under RCW 36.70A.300 . .. has the burden of demonstrating that the ordinance or resolution it has enacted in response to the determination of invalidity will no longer substantially interfere with the fulfillment of the goals of the [GMA]." RCW 36.70A.320(4).

         Administrative decisions state that an ordinance adopted in response to a finding of invalidity is accorded a presumption of validity. RCW 36.70A.320(1); see Abenroth, et al. v. Skagit County, No. 97-2-0060c, coordinated with Skagit County Growthwatch v. Skagit County, No. 07-2-0002, 2009 WL 419365, at *3 (Wash. Growth Mgmt. Hr'gs Bd. Jan. 21, 2009) ("While the ordinance that is adopted to cure non-compliance is entitled to a presumption of validity, nevertheless, the local jurisdiction must still demonstrate to the Board that it has addressed the area of non-compliance identified in the [final decision and order.]"). This language is similar to the language of cases according deference to city and county planning actions prior to a finding of invalidity. See Quadrant Corp., 154 Wn.2d at 238.

         Appellate Court Review of Board Decision

         On appeal from a decision of the Board, the appellate court reviews the decision of the Board and accords deference to the Board's determination of the GMA's requirements. Soccer Fields, 142 Wn.2d at 553; Lewis County, 157 Wn.2d at 498.

         The appellate court applies the standards of the Administrative Procedure Act (APA), chapter 34.05 RCW, directly to the record before the Board. Soccer Fields, 142 Wn.2d at 552-53. Under the APA, "[t]he burden of demonstrating the invalidity of agency action is on the party asserting invalidity." RCW 34.05.570(1)(a).

         "[D]eference to county planning actions, that are consistent with the goals and requirements with the GMA, supersedes deference granted by the APA and courts to administrative bodies in general." Quadrant Corp., 154 Wn.2d at 238. But "this deference ends when it is shown that a county's action are in fact a 'clearly ...

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