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Futurewise v. Snohomish County

Court of Appeals of Washington, Division 1

July 15, 2019

FUTUREWISE and PILCHUCK AUDUBON SOCIETY, Appellants,
v.
SNOHOMISH COUNTY and THE GROWTH MANAGEMENT HEARINGS BOARD, Respondents.

          Dwyer, J.

         Following the 2014 Oso landslide, Snohomish County updated its regulations designating and protecting critical areas, including geologically hazardous areas (GHAs) such as landslide hazard areas. Futurewise and the Pilchuck Audubon Society (collectively Futurewise) believe that the County's regulations fail to meet the requirements of the Growth Management Act (GMA), codified primarily in chapter 36.7OA RCW. Futurewise challenged the County's new regulations before the Growth Management Hearings Board, but the Board concluded that the majority of the regulations complied with the GMA. On appeal, Futurewise seeks reversal of the Board's decision to uphold the regulations.

         Futurewise asserts that the County's new regulations fail to protect the public health and safety from GHAs as required by the GMA and that the Board erred when it concluded that Futurewise presented inadequate briefing on certain issues and deemed those issues abandoned. We disagree. The GMA does not mandate that local governments consider the protection of the public health and safety when developing critical area regulations, and the Board did not err when it concluded that Futurewise had abandoned several issues by presenting inadequate briefing to the Board.[1] We affirm.

         I

         Following the Oso landslide in 2014, the Snohomish County Council adopted Amended Ordinance 15-034 (Ordinance 15-034) on September 2, 2015, updating its critical area regulations. The Ordinance amended sections of the Snohomish County Code (SCC) pertaining to wetlands and fish and wildlife habitat conservation areas (chapter 30.62A SCC), geologically hazardous areas (chapter 30.62B SCC), and critical aquifer recharge areas (CARAs) (chapter 30.62C SCC).

         Futurewise and the Tulalip Tribes challenged Ordinance 15-034 and the amended regulations protecting critical areas before the Board. The Board subsequently concluded that Futurewise and the Tulalip Tribes failed to meet their burden to establish the invalidity of the challenged regulations except as to one issue not pertinent to this appeal.[2] Most pertinent to this appeal are the Board's conclusions that (1) the GMA does not mandate that the County consider the public health and safety when developing critical area regulations, and (2) that Futurewise abandoned all issues set forth under "Issue C-1" in its briefing before the Board because it presented inadequate argument linking the County's regulations to specific violations of the GMA. After the Board reached its decision, Futurewise appealed to the Thurston County Superior Court, which affirmed the Board's decision in a brief order.

         Futurewise timely appealed to Division Two, which transferred the matter to us for decision.

         II

         Futurewise's primary contention on appeal is that the Board erred by concluding that the GMA does not require local governments to consider the protection, against GHAs, of the public health and safety when developing critical area regulations. This is so, Futurewise asserts, because RCW 36.70A.030(10) defines GHAs as "areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns." According to Futurewise, the Board's conclusion that the GMA does not require local governments to consider the protection of the public health and safety during the development of critical area regulations improperly writes "consistent with public health or safety concerns" out of the statutory definition of GHAs.

         In response, the County asserts that RCW 36.70A.030(10) does not set forth any affirmative mandate to consider the public health and safety during the development of critical area regulations. Instead, the County asserts that RCW 36.70A. 172(1) sets forth the requirements for counties and cities when developing regulations and that this statute does not require consideration of the public health and safety. The County has the better argument.

         A

         Our review of decisions by the Growth Management Hearings Board is governed by the Washington Administrative Procedure Act, chapter 34.05 RCW (APA). Kittitas County v. E. Wash. Growth Mgmt. Hearings Bd., 172Wn.2d 144, 155, 256 P.3d 1193 (2011). We review the Board's decision directly, rather than reviewing the decision of the superior court. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). "Under the judicial review provision of the APA, the 'burden of demonstrating the invalidity of [the Board's decision] is on the party asserting invalidity.'" Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 7-8, 57 P.3d 1156 (2002) (alteration in original) (quoting RCW 34.05.570(1)(a)).

         We review issues of law de novo. Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008). We accord substantial weight to the Board's interpretation of the GMA, but we are not bound by the Board's interpretations. Thurston County, 164 Wn.2d at 341. Any deference we show to the Board's interpretations, however, is superseded by the deference both we and the Board must show to county planning actions. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). Additionally, we will not defer to the Board's interpretations of the GMA where the Board's interpretation expands the scope of its own authority. See Ma'ae v. Dep't of Labor & Indus., 8 Wn.App. 2d 189, 197, 438 P.3d 148(2019).

         The Board's decision must be supported by substantial evidence, which requires that there be "'a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" Kittitas County, 172 Wn.2d at 155 (internal quotation marks omitted) (quoting Thurston County, 164 Wn.2d at 341). "On mixed questions of law and fact, we determine the law independently, then apply it to the facts as found" by the Board. Cooper Point Ass'n, 148 Wn.2d at 8 (citing Hamel v. Emp't Sec. Dep't., 93 Wn.App. 140, 145, 966 P.2d 1282 (1998)).

         "A county has broad discretion under the GMA in creating development regulations tailored to local circumstances." Yakima County v. E. Wash. Growth Mgmt. Hearings Bd., 168 Wn.App. 680, 691, 279 P.3d 434 (2012) (citing Swinomish Indian Tribal Cmty. v. W Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 430, 166 P.3d 1198(2007)). When a party challenges a county's regulations under the GMA, the Board must find compliance unless the challenged regulations are clearly erroneous in view of the entire record and the goals and requirements of the GMA. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006) (citing 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 (citing Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121 Wn.2d 179, 201, 849 P.2d 646 (1993), aff'd, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994)).

         B

         Futurewise contends that several of the County's updated critical area regulations do not comply with the GMA because they were developed without considering the protection of the public health and safety from critical areas. But Futurewise fails to identify any provision of the GMA that sets forth such a requirement. Instead, Futurewise asserts that by failing to consider the public health and safety when developing critical area regulations, the County ignored the definition of GHAs set forth in RCW 36.70A.030(10)-which specifies that GHAs are areas "not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns." According to Futurewise, this definition requires the County to consider the protection of the public health and safety from GHAs when developing critical area regulations.

         Local governments subject to the GMA are required to "adopt development regulations that protect critical areas" designated under RCW 36.70A.170. RCW 36.70A.060(2). The GMA further specifies that "[i]n designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas." RCW 36.70A. 172(1). This provision sets forth the affirmative obligation the GMA places on counties developing critical area regulations to protect critical areas' "functions and values," and it does not include any requirement that counties consider the public health and safety when developing critical area regulations.[3]Indeed, when interpreting the requirements of RCW 36.70A. 172(1), our Supreme Court has analyzed the statute as requiring the protection of critical areas themselves, rather than anything external to critical areas, such as the public health or safety. See Swinomish, 161 Wn.2d at 427-28 (concluding that a no harm regulation setting the baseline for measuring harm as the current condition of critical areas complied with the GMA because the word protect in RCW 36.70A.172 required only the prevention of further harm to critical areas, rather than the enhancement of already damaged critical areas).[4]

         Furthermore, Futurewise's argument ignores longstanding Board precedent establishing that GMA definitions do not, by themselves, create any GMA duties. Hanson v. King County, No. 98-3-0015c, 1998 WL 990439, at *6-7 (Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Dec. 16, 1998) (Final Decision and Order). In fact, the Board has previously applied this general rule specifically to determine that the GMA does not require local government entities to consider the public health and safety when developing critical area regulations.[5] Audubon Soc'y v. Pierce County, No. 05-3-0004c, 2005 WL 2227915, at *21 (Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. July 12, 2005) (Final Decision and Order).

         In Audubon Society, the Board analyzed the duties set forth in the GMA related to critical area regulations and concluded that the definition of GHAs set forth in RCW 36.70A.030 does not contain any affirmative mandate requiring counties to consider the public health and safety when developing critical area regulations. The Board acknowledged that the GMA defined GHAs as areas that "'are not suited to [the] siting of. . . development consistent with public health or safety concerns, '" but concluded that "there is no affirmative mandate associated with this definition" except that set forth in RCW 36.70A.172 to protect the functions and values of critical areas.[6] Audubon Soc'y, 2005 WL 2227915, at *21 (quoting RCW 36.70A.030(10)). The Board therein also noted that, under Board precedent, GMA definitions, by themselves, do not create any GMA duties. Audubon Soc'y, 2005 WL 2227915. at *21 n.18 (citing Hanson, 1998 WL 990439, at *7-8).

         Numerous subsequent Board decisions have analyzed whether the GMA sets forth a duty to protect people and property during the development of critical area regulations, and they have consistently held that the GMA does not require critical area regulations to protect the public health and safety from GHAs. See Blair v. City of Monroe, No. 14-3-0006c, 2015 WL 10684571, at*29 (Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. April 1, 2015) (Order Finding Continuing Non-Compliance) ("risk to life and property in geologically hazardous areas is a policy decision"); Friends of the San Juans v. San Juan County, No. 13-2-0012c, 2013 WL 5212385, at *22 (W. Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Sept. 6, 2013) (Final Decision and Order) ("The GMA does not impose an independent duty to protect life and property."); Friends of Pierce County v. Pierce County, No. 12-3-0002c, 2012 WL 3060647, at *53 (Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. July 9, 2012) (Final Decision and Order) (the GMA definition of GHAs "by itself does not impose an independent duty upon the County to protect life and property"); Seattle Audubon Soc'y v. City of Seattle, No. 06-3-0024, 2006 WL 3791721, at *16 (Wash. Cent. Puget Sound Growth Mgmt. Hr'gs Bd. Dec. 11, 2006) (Final Decision and Order) (concluding that people and property must be protected against GHAs through building codes, not the GMA).[7]

         We decline to overturn over 20 years of Board precedent holding that GMA definitions do not, by themselves, create GMA duties, and almost 15 years of Board precedent holding that the GMA imposes no duty on local governments to consider the public health and safety when developing regulations to protect critical areas, including GHAs. The Board's interpretation aligns with the plain language of RCW 36.70A.172 and our Supreme Court's consideration, in Swinomish, of RCW 36.70A.172 as requiring protection of critical areas. 161 Wn.2d at 427-28. Furthermore, deference to the Board's interpretation of the GMA is appropriate herein because the Board is interpreting a statute it administers within its administrative expertise and its interpretation restrains, rather than expands, the scope of its own authority to overrule decisions made by elected county and city officials. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 612, 90 P.3d 659 (2004); Ma'ae, 8 Wn.App. 2d at 197.

         Finally, we note that our legislature has also tacitly acquiesced to the Board's interpretation of the GMA. The Board's decisions concluding that GMA definitions do not, on their own, create GMA duties, extend back over 20 years, and decisions concluding specifically that no definition in the GMA sets forth a duty to consider the public health and safety when developing critical area regulations extend back almost 15 years.[8] See Hanson, 1998 WL 990439, at *7- 8; Audubon Soc'y, 2005 WL 2227915, at *21. The Washington State Legislature has amended the GMA, including RCW 36.70A.172 and RCW 36.70A.030, several times during this period without disavowing the Board's rulings. See Laws of 2017, 3d Spec. Sess., ch. 18, §2; Laws of 2012, ch. 21, § 1; Laws of 2010, ch. 211, §3; Laws of 2009, ch. 565, § 22; Laws of 2005, ch. 423, §2.

         The plain language of the GMA, interpretations of the GMA by our Supreme Court, and over a decade of Board decisions-with clear accompanying legislative acquiescence to those decisions-strongly support the Board's conclusion herein that the GMA does not impose a duty on local governments to consider the public health and safety ...


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