MRSC has joined with Phil Olbrechts, Attorney, Ogden Murphy Wallace, Pat Dugan, Dugan Consulting Services, Arthur Sullivan, Program Manager of ARCH (A Regional Coalition for Housing), and Anindita Mitra, founder of CREÄ Affiliates, LLC, to bring you the "Planning Advisor" article series on planning and growth management issue affecting Washington Local Governments. The "Planning Advisor" will feature a new article each month with timely information and advice you can use.*

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The Most Significant Land Use Case of 2008, Maybe, Although We’re Not Sure Because No One Knows What it Means

December 2008

Phil Olbrechts, Attorney
Ogden Murphy Wallace, PLLC

On July 31, 2008 the Washington State Supreme Court invalidated all of this state’s critical area ordinances (“CAO”s) as they apply within shoreline areas in Futurewise v. Anacortes, 164 Wn.2d 242 (2008). In other words, all those local ordinances that cities and counties thought protected streams, wetlands and steep slopes within shoreline areas, don’t. Under the plurality’s analysis, in most counties and cities developers can build to the edge of marine bluffs and up to around 30 feet of wetlands and streams within 200 feet of shorelines regulated by the Washington State Shoreline Management Act, Chapter 90.58 RCW (“SMA”). Or maybe the Anacortes decision didn’t invalidate those CAO’s. The decision was so self-contradictory and confusing that six governmental entities requested reconsideration or at least clarification: the Washington State Department of Ecology (“DOE”), the Washington State Department of Community, Trade and Economic Development (CTED [now the Washington State Department of Commerce]), and King, Kitsap, Pierce and Cowlitz Counties. You would think that such a ruling would have environmentalists and anyone concerned about shoreline resources screaming for legislative action. They’re not, yet, because the plurality’s own opinion contradicts itself and brings the holding of the case into question. After declaring that CAO’s don’t apply within shoreline areas, the plurality plus one concurring justice (forming a majority of the Court) upheld a lower decision by the Western Washington Growth Management Hearings Board (“WWGMHB”). The WWGMHB ruled that CAO’s still apply within shoreline areas, contradicting the plurality. The plurality reinstated a decision it doesn’t agree with.

A Brief Primer on the SMA and GMA

Those of you who did your duty and took the free “short course” land use seminar from CTED [now the Washington State Department of Commerce] can skip this section. To understand the Anacortes decision, you need to understand the overlap of the SMA and the Growth Management Act, Chapter 36.70A RCW (“GMA”). The SMA was adopted by a state citizen’s initiative in 1971. The SMA requires cities and counties to adopt regulations protecting shorelines, defined as the land within 200 feet of streams that run over 20 cubic feet per second, lakes over 20 acres in size and the wetlands associated with these lakes and streams.¹ The local regulations that protect shorelines are called shoreline master programs (“SMP”), basically mini-zoning codes for shoreline areas. The content of SMP’s is heavily regulated by DOE.² Significant for this discussion, no amendments to an SMP go into effect until DOE approves them.³ SMP stream and wetland buffers are typically around 30 feet and they contain relatively few restrictions on steep slope development.

The state legislature adopted the GMA in 1990. The GMA requires all cities and counties to adopt CAO’s.⁴ These CAO’s must protect a long list of environmental resources, such as streams, wetlands and steep slopes.⁵ Further, the GMA requires that cities and counties base these ordinances upon best available science, meaning that credible scientific evidence must support the proposition that the CAO’s are adequately protecting these environmental resources.⁶ CAO’s typically require 150 to 200 foot buffers for environmentally significant streams and wetlands. Development along marine bluffs and other steep slopes also involves in-depth geotechnical review with extensive mitigation. CAO’s tend to be much more protective of environmental resources than SMP’s.

The Source of the Confusion

The reason for the current state of confusion is that people disagree with whether the GMA should protect critical areas within shorelines, since the SMA already does so. Cities and counties have adopted over 140 CAO’s across the state. Until the Anacortes decision, it’s likely that every single one of those cities and counties applied their CAO’s within shoreline areas regulated by local SMP’s. There’s always been some overlap between the CAO’s and SMP’s, but jurisdictions dealt with them by applying both sets of standards. If the SMP required a 30 foot setback and the CAO requires a 200 foot buffer, the city or county would apply the greater buffer, i.e. the 200 foot buffer. In 2003 the legislature adopted RCW 36.70A.480 and decreed that CAO’s do not apply within shoreline areas regulated by the SMA. If cities and counties wanted to protect environmental resources within shoreline areas, that must be done through amendment of the SMP, which requires DOE approval. No one disagrees that the legislature intended to exclude CAO’s from shoreline areas. The question was when. The legislature set out the timing as follows:

As of the date the department of ecology approves a government’s shoreline master program…the protection of critical areas…shall be accomplished through the local government’s shoreline master program…

RCW 36.70A.480(3)(a).

Cities and counties took a common sense approach to the language above, and determined that “as of the date the department of ecology approves” an SMP was at the time the city or county updated its SMP. The next SMP update for most cities and counties is due 2012 to 2014, depending upon the city or county.⁷ In the meantime, the CAO’s would continue to apply in shoreline areas.

In the Anacortes decision, the State Supreme Court surprised everyone by interpreting RCW 36.70A.480(3)(a) as applying retroactively. In other words, if cities and counties want to apply CAO’s within their SMP’s now, they should have already adopted them as amendments to their SMP’s the last time they updated their SMP’s. Here’s the Court in its own words:

…the legislature uses “as of the date the department of ecology approves” to refer to the date of approval of each plan. In Anacortes’s case, that date was in 2000 [the last time Anacortes updated its SMP].

Futurewise v. Anacortes, 164 Wn.2d at 246.

In short, the Anacortes Court is saying that the Anacortes CAO does not apply within Anacortes’s shorelines because Anacortes failed to incorporate its CAO into its SMP when it last updated it in 2000. That’s quite a requirement, considering that RCW 36.70A.480 wasn’t adopted until three years later, in 2003. Of course, no city or county could be expected to have known before the adoption of RCW 36.70A.480 that in order to apply CAO’s within shorelines, it had to adopt them as an SMP amendment. The practical consequence of the Court’s interpretation of RCW 36.70A.480(3)(a) is that CAO’s don’t apply in any SMP’s despite the understanding of every city and county that they did. The Court recognized this consequence, holding that under the SMP “the shorelines will remain protected.” Id. At p. 247.

The holding of the Anacortes court would be clear if it stopped here, but it gets worse, much worse. After ruling that RCW 36.70A.480(3)(a) applies retroactively, the Court concludes its decision by reinstating the WWGMHB decision that was the subject of the appeal. This reinstatement directly contradicts the language quoted above, because the WWGMHB expressly held that RCW 36.70A.480(3)(a) does not apply retroactively:

A legislative amendment is presumed to apply prospectively unless there is clear legislative intention to apply it retroactively. A legislative enactment is presumed to apply prospectively only and will not be held to apply retrospectively unless such legislative intent is clearly expressed. Such a clear expression of retroactive application is not apparent in ESHB 1933 [RCW 36.70A.480]. In fact, retroactive application would contradict another expression of legislative intent found in RCW 36.70A.480(4):

Shoreline master programs shall provide a level of protection to critical areas located within shorelines of the state that is at least equal to the level of protection provided to critical areas by the local government's CAO’s adopted and thereafter amended pursuant to RCW 36.70A.060(2).

RCW 36.70A.480(4).

Futurewise v. Anacortes, WWGMHB, Final Decision and Order, Case No. 05-2-0016, p. 27-28, (citations omitted).

Differing significantly from the Supreme Court opinion, the WWGMHB stated that it agrees that “shorelines of the state are not stripped by ESHB 1933 [RCW 36.70A.480] of protections given by existing critical area regulations.” However, since Anacortes was amending its CAO after the legislature adopted RCW 36.70A.480, the CAO amendment had to be treated as an amendment to the Anacortes SMP, which in turn would require DOE approval.

The City of Anacortes has distributed a public letter to DOE stating the Anacortes case is clear and it doesn’t understand what all the fuss is about. For Anacortes the case is clear – if it wants to amend its CAO, it must acquire DOE approval if it wants the amended CAO to apply within its shorelines. This doesn’t solve the greater mystery of the current status of CAO regulations in shoreline areas for those jurisdictions that aren’t amending their SMP’s. Do we go by the statements of the plurality of the Court or the WWGMHB decision it reinstated?

The Confusion Deepens

We’re not done yet. In addition to contradicting itself, the Supreme Court decision was also fragmented with no easily discernible majority holding. You may have noticed that quotations from the Court were ascribed to the “plurality.” A plurality opinion is signed by less than a majority but has received more support than any other opinion. A court opinion is only binding if it’s issued by a majority of justices. In the Anacortes decision only four of the nine Supreme Court justices held that RCW 36.70A.480 applies retroactively. One other justice, Justice Madsen, concurred in the “result only” of the plurality decision. With Justice Madsen’s vote a majority of the justices did agree that the WWGMHB decision should be reinstated. Normally, this would give us confidence that the majority of the justices agree with the reasoning of the WWGMHB decision, but of course as discussed above the plurality actually doesn’t agree with the very decision it reinstated.

This fragmented and self-contradictory reasoning of the court is one of the reasons everyone has run to the Supreme Court to ask them to please explain what they’re doing. It’s a little difficult to speculate on how the Court will rule on the motions for reconsideration. Justice Madsen did not explain why she concurred with the plurality. If she actually agrees with the WWGMHB decision she sought to reinstate (this would normally be a logical assumption, but…), she would form a majority with the four dissenting justices that existing CAO’s still apply within shorelines. In a rational world, this would be the result if the Supreme Court clarifies its decision as requested by the parties.

The US Supreme Court has provided guidance on interpreting fragmented decisions as follows:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of [the majority], the holding of the Court may be viewed as the position taken by the those members who concurred in the judgment on the narrowest grounds.

430 US 188, 193 (1977).

Using the “narrowest grounds” standard, the Anacortes decision can be construed as holding only that if a city or county wants to amend its CAO and apply that amendment within shoreline areas, it must acquire DOE approval for the amendment as an SMP amendment. All the Supreme Court justices probably agree with this proposition and it was the primary issue before the Court. However, the plurality’s ruling on retroactive application puts the validity of applying all CAO’s within shoreline areas into serious question. Justice Madsen needs to identify where she stands on retroactive application so that cities and counties know whether they can apply their CAO’s within shoreline areas.

Consequences

There is a lot of confusing information on the Anacortes decision. Reputable sources assure us that the appeal period for CAO’s has lapsed and that the Anacortes decision doesn’t go into effect until the reconsideration motion is resolved. Neither of these points provides much protection to jurisdictions that want to protect shoreline resources with their CAO’s. On the presumption of validity, it is true that the appeal period for an SMP regulation, including a CAO within an SMP, is 60 days.⁸ If no one appeals a properly adopted SMP regulation within that 60-day period, it is immune from appeal to the Growth Management Hearings Boards. However, the trigger for an appeal of an SMP amendment is DOE approval.⁹ If a City never acquired DOE approval to incorporate its CAO into its SMP the appeal period never initiated, let alone lapsed. The lengthy period of time that has expired since the approval of most SMP’s may still serve as a defense under other theories of law, but it’s going to be far more difficult to prevail than citing to the 60-day appeal period. Remember also that the plurality has already satisfied itself that existing SMP regulations are “adequate” to protect shoreline resources, evidencing an assumption that CAO’s won’t apply within shorelines even though they’ve been applied that way for several years running. As to the point that the Anacortes decision isn’t final until the reconsideration decision is resolved, that does nothing for permits that haven’t been through the court system yet. The final Anacortes decision will most likely be applied retroactively to any development projects that haven’t completed judicial review. Developers that file their permits now can use the final Anacortes decision once they get into court.

Despite the potential adverse impacts of the Anacortes decision, it appears that all communities are taking a wait and see approach to see the results of the reconsideration motion. This is prudent given that the options to act aren’t very promising. A city or county could adopt a moratorium on development within shorelines, but that is always an extreme action that has its own set of legal risks. Asking DOE to approve a CAO as an SMP amendment could take years, so that doesn’t provide any immediate solution. As a precaution, cities and counties should use the State Environmental Policy Act, Chapter 43.21C RCW (“SEPA”) to mitigate impacts to shoreline resources. If a developer succeeds in invalidating the application of a CAO to a shoreline project, SEPA mitigation may still hold up.

 

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Pat Dugan has a unique combination of experience in both planning and public finance, spanning 35 years. As a planner, he has been a planning director in two cities (Auburn and Burien), and two regional planning agencies in Oregon and Washington; and was a planning manager in Goleta, California. In public finance, Pat has served as the chief financial officer in four public agencies including the Cities of Auburn and Lynnwood, and the Snohomish County Public Works Department. He has written extensively on financing capital facility programs and on public finance for planners. Pat now offers planning and public finance consulting services and in his own firm, Dugan Consulting Services in Everett and can be reached at consult.dugan@verizon.net.

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Anindita Mitra, AICP is the Founder of CREÄ Affiliates, LLC a planning and urban design consultancy that focuses on creating awareness of unsustainable practices, and offers a platform for affected parties to openly communicate and collaborate to arrive at creative sustainable solutions. She is also one of the Co-Chairs of the Climate and Sustainability Initiative of the Washington Chapter of the American Planning Association. Anindita's current interests include the development of sustainable master plans and streetscape designs; establishing sustainable community indicators and their integration into comprehensive plans and governance; identifying creative solutions directing communities towards energy-independence; preparing communities for the challenges potentially brought upon by the Climate Change phenomenon; and advancing the integration of transit and non-motorized travel solutions into community land use planning. She has worked throughout the United States for both the public and private sectors.

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Phil Olbrechts is a member (similar to partner) and elected member of the board of directors of Ogden, Murphy, Wallace, LLC. Phil focuses his practice on land use law and currently represents seven municipalities as either City Attorney or Hearing Examiner. He has taught over a dozen credits of land use law at the University of Washington, has taught numerous land use continuing legal education courses and has made over 200 land use presentations to elected and appointed officials throughout Washington State. Phil has served on the Seattle Planning Commission and in the past served as the Planning Director for two municipalities.

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Arthur Sullivan is the Program Manager of ARCH (A Regional Coalition for Housing). ARCH is a coalition of 16 public jurisdictions located in East King County. Its purpose is to facilitate efforts of public jurisdictions to create a full range of housing, with an emphasis on affordable housing. In 2004 ARCH was the winner of the inaugural Ash Institute / Fannie Mae Foundation Innovations in American Government Award in Affordable Housing. Previously Arthur was a Senior Manager at BRIDGE Housing and planner for Environmental Impact Planning. He holds a B.A. in Planning from the University of Washington, and a Master of Planning from UC, Berkeley.

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*The Articles appearing in the "Planning Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.

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