STATE
OF WASHINGTON
|
LAWRENCE MICHAEL INVESTMENTS, L.L.C.; CHEVRON
USA INC.; and CHEVRON LAND AND DEVELOPMENT COMPANY,
Petitioners, v. TOWN OF WOODWAY, Respondent. |
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)
) ) ) ) ) ) ) ) ) ) ) |
Case No. 98-3-0012 (LMI / Chevron) FINAL DECISION and ORDER |
On July 21, 1998, the Board held a Prehearing Conference.
On July 23, 1998, the Board received “Petitioner/Plaintiff’s Revised Statement of Issues.”
On July 24, 1998, the Board received a letter “Response by Town of Woodway to Petitioners’ July 23, 1998 Revised Statement of Issues.”
On July 24, 1998, the Board issued an “Order Directing LMI/Chevron to Provide Citations for Legal Issues 4, 5 and 6.”
On July 28, 1998, the Board received “Petitioner/Plaintiff’s Second Revised Statement of Issues.”
On July 29, 1998, the Board issued an “Order Granting Amicus Curiae Status and Prehearing Order.”
On August 11, 1998, the Board issued an “Order Granting Settlement Extension and Amending Prehearing Order -- Final Schedule.”
On July 23, 1998, the Board received “1000 Friends of Washington’s Motion to File a Brief Amicus Curiae.”The Town of Woodway did not respond to 1000 Friends’motion.
On July 29, 1998, the Board issued an “Order Granting Amicus Curiae Status and Prehearing Order.”The Order granted amicus curiae status to BIAW and 1000 Friends.BIAW’s participation was limited to a prehearing brief on part of Legal Issue 1 (Goal 1 -- Urban Growth and Goal 4 -- Housing).1000 Friends’ participation was limited to a prehearing brief on part of Legal Issue 1 (Goal 1 -- Urban Growth and Goal 2 -- Sprawl).
On August 7, 1998, the Board received “Association of Washington Business [AWB] Motion to File Amicus Brief.”
On August 13, 1998, the Board received a letter from Woodway’s attorney opposing the Association of Washington Business’ request for amicus curiae status.
On August 14, 1998, the Board issued an “Order Granting Amicus Curiae Status and Correcting Index.”The Order granted amicus curiae status to AWB.AWB’s participation was limited to a prehearing brief on Legal Issue 7 and part of Legal Issue 1 (Goal 1 -- Urban Growth and Goal 4 -- Housing).
On August 11, 1998, the Board issued an “Order Granting Settlement Extension and Amending Prehearing Order -- Final Schedule.”The Order extended the deadline for filing motions to supplement the record from August 5,1998 to August 19, 1998.
On August 14, 1998, the Board issued an “Order Granting Amicus Curiae Status and Correcting the Index.”In this Order, the four items added to the First Amended Index by Woodway were noted by the Board.These items were noted as Index Nos. 183 through 186.
On August 19, 1998, the Board received “Petitioner/Plaintiff’s Motion to Amend Index to Record and Second Motion to Supplement Record.”Included in the Motion to Supplement was a request to Amend the Index.Twelve proposed exhibits were appended to Petitioners’ Second Motion to Supplement the Record. No exhibits accompanied the request to Amend the Index.
On August 26, 1998, the Board received "Respondent Town of Woodway’s Response to Petitioner’s Motions to Supplement the Record and Motion to Amend Index to the Record.”
On August 31, 1998, the Board received “Petitioner/Plaintiff’s Reply on Motions to Supplement Record and Motion to Amend Index.”Six proposed exhibits were appended to the Reply.
On September 1, 1998, the Board issued an “Order on Motions to Supplement the Record.”The Order added Index Nos. 187 through 207 to the record.
At the October 21, 1998, Hearing on the Merits, the Presiding Officer granted Motions to Supplement requested by both Petitioners and Respondent.Three items were inadvertently omitted from the record and are hereby included in the record, as Index Nos. 208 through 210.
On August 26, 1998, the Board received "Petitioner/Plaintiff’s Response to Woodway’s Motion to Dismiss Issue 8."(LMI Motion Response)
On August 31, 1998, the Board received “Town of Woodway’s Reply Regarding Motion to Dismiss Issue 8.”(Woodway Motion Reply)
On September 2, 1998 the Board issued an “Order on Dispositive Motion.”The Order denied the Town of Woodway’s Motion to Dismiss Issue 8.
On October 13, 1998, the Board received “Town of Woodway’s Response to Plaintiff’s Prehearing Brief and Briefs of Amicus Curiae,” including 13 exhibits (Woodway Response).
On October 20, 1998, the Board received“Petitioners/Plaintiffs’ Reply Brief,” including two exhibits (LMI Reply).
On October 21, 1998, the Board held a hearing on the merits in Suite 1022 of The Financial Center, 1215 4th Avenue in Seattle, Washington.Board members Ed McGuire, Presiding Officer, Joseph W. Tovar and Chris Smith Towne were present for the Board.Petitioners LMI/Chevron were represented by Robert I. Heller, G. Richard Hill and Courtney A. Kaylor.The Town of Woodway was represented by David A. Bricklin and Jennifer A. Dold. Court reporting services were provided by Cynthia LaRose, RPR, of Robert H. Lewis & Associates, Tacoma.The hearing convened at 10:00 a.m. and adjourned at approximately 1:00 p.m.
The burden is on Petitioners LMI/Chevron to demonstrate that the actions taken by Woodway are not in compliance with the requirements of the GMA. RCW 36.70A.320(2).
Pursuant to RCW 36.70A.320(3), the Board “shall find compliance unless it determines that the action by [Woodway] is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].”For the Board to find Woodway’s action clearly erroneous, the Board must be “left with the firm and definite conviction that a mistake has been made.”Dep’t of Ecology v. PUD 1, 121 Wn.2d 179, 201 (1993).
1.The PFR challenges the Town of Woodway’s Comprehensive Plan amendments’ compliance with the GMA.PFR, at 8-17.
2.The Petitioners allege participation standing, pursuant to RCW 36.70A.280(2)(b).PFR, at 17-18.Woodway did not challenge Petitioners’ standing.
3.Woodway’s Ordinance No. 98-338 was adopted by the Council May 18, 1998, and published on May 21, 1998.PFR, at 7.
4.Woodway’s Ordinance No. 98-339 was adopted by the Council May 18, 1998, and published on May 21, 1998.PFR, at 7.
5.The PFR challenging these Ordinances was filed with the Board on June 18, 1998. Supra, at 1.
1.Pursuant to RCW 36.70A.280(1)(a), the PFR, on its face,raises issues over which the Board has subject matter jurisdiction.
2.Pursuant to RCW 36.70A.280(2), Petitioners LMI/Chevron have standing to bring the challenges set forth in the PFR
3.Pursuant to RCW 36.70A.290(2), the PFR was timely filed.
Ordinance No. 98-338 amended Woodway’s Comprehensive Plan to include Special Study Area Criteria (SSAC) as a Subarea Plan (Subarea).The SSAC applies only to the 60.8 acres owned by Chevron U.S.A.This area is the same area affected by Ordinance No. 98-339.Ex. 179, Ordinance No. 98-338, at 1.The SSAC includes the following headings: Framework, Statement of Purpose, Criteria for Residential Development, Character, Land Use, Site Ecology, Utilities, Transportation and Public Services.Ex. 179, Ordinance No. 98-338, at 1- 5.
Ordinance No. 98-339 amended three maps in the Woodway Comprehensive Plan. The same 60.8-acre area (Plan Amendment Area) was affected by each map amendment.
The Comprehensive Plan Map was amended to:
delete the designations of
IPS and C for the Chevron property and replace them with the designation
of Urban Restricted [UR].The
Chevron property should be shaded, with shading tone also added to the
legend, with the words: “Pursuant to the UR designation, development is
limited to compact urban growth (four units per acre) on the identified
disturbed areas of the site: (1) the 10.2 acre disturbed/grassland area
on Parcels K and L and (2) the 0.3 acres of disturbed deciduous-shrub area
in the southwest corner of parcel J.[2]Ex.
180, Ord. No. 98-339, Sec. 1(b), at 1.
TheDevelopment Potential Map was amended to:
delete the shading of the Chevron property, which indicates “undeveloped parcel.”There would be no shading of the property, thus indicating that it is to be developed pursuant to Urban Restricted.Ex. 180, Ord. No. 98-339, Sec. 1(c), at 2.
The Critical Areas Map was amended to:
shade the areas outside of the disturbed areas of the site (identified in 1(b) above), thus indicating they are permanently protected as wildlife habitat, wetlands, steep slopes, greenbelt, open space, and other natural resources on-site in their undeveloped natural state.Ex. 180, Ord. No. 98-339, Sec. 1(d), at 2.
Ordinance No. 98-339 also amended the text of the Woodway Comprehensive Plan in ten places: four goals or policies were changed; explanatory text or discussion was modified in three places; and the remaining changes were technical amendments to tables or footnotes.The challenged goals and policies, as amended, now read as follows:
Policy LU-5 -- Continue to develop low density residential sites according to existing policies, ordinances, and development regulations where appropriate and provide for compact urban growth consistent with the policies of this plan and the goals of the Growth Management Act.New development should be compatible with the character and quality of existing developments.Ex. 180, Ord. No. 98-339, Sec. 3(l), at 3; Ex. 20, at 20.
Policy LU-8 --Recognizing that the 60.8-acre Chevron Property presently zoned Conservation and Industrial Product Storage within the Town may become available for development other than present usage, designate the property as a Special Study area.The Town will make every effort to preserve the area as is or to retain the character of the Town.
The Special Studies described above have been completed for the Chevron property, and applications for development of that property have been reviewed in light of those studies and other considerations.As noted elsewhere in this Plan, the Conservation and Industrial Product Storage designations of the property referred to have been changed through an Amendment to this Plan.Ex. 180, Ord. No. 98-339, Sec. 1(a), at 1; Ex. 20, at 23.
The amendments to the Plan’s explanatory text or discussion now provide as follows:
Discussion following Policy LU-1:[3]
Discussion Housing density will continue to range from four single family homes per acre to one single family home per two acres.To maintain this density, land use development patterns and (sic) are expected to change very little.Ex. 180, Ord. No. 98-339, Sec. 3(j), at 3; Ex. 20, at 19.
The remaining changes to the Woodway Plan accomplished by Ordinance No. 98-339 correct table references and footnotes to reflect the substance of the map and policy revisions noted above; therefore, they will not be reiterated here.See Ex. 180, Ordinance No. 98-339, Sec. 1(e) and (f), at 2; and Sec. 3(m), at 3.
Nine Legal Issues are presented for the Board to resolve.Ordinance No. 98-338 is not challenged in Legal Issue Nos. 2 or 3; however, it is included in Legal Issue Nos. 1, 4, 5, 6, 7, 8and 9.Ordinance No. 98-339 is challenged in all nine Legal Issues.The Board will first address Legal Issue No. 8 (amendment process, p. 8), originally raised in dispositive motions; then the Board will resolve the remaining Legal Issues in the following order: No. 2 (critical areas, p. 15), No. 1 (goals, p. 21), Nos. 4, 5, 6 (all involving consistency, pp. 34, 43 and 47 respectively), No. 7 (mandatory elements, p. 50), No. 3 (open space corridors, p. 53)and No. 9 (invalidity, p. 55).
Any findings of fact that should be conclusions of
law, but have been improperly indicated, are deemed conclusions of law;
likewise, any conclusions of law that should be findings of fact, but have
been improperly indicated, are deemed to be findings of fact.
In its PFR and briefing on Woodway’s motion to dismiss Issue 8, LMI contended that the provisions of the GMA cited in Issue 8 establish a duty for Woodway to consider LMI/Chevron’s application for a comprehensive plan amendment in a timely (on an annual basis) and fair manner.PFR, at 16; LMI Motion Response, at 2.Woodway asserted that the GMA provisions cited in Issue 8 do not create such a duty, nor do they provide a basis for Petitioners’ claims.Woodway Motion, at 5-6; Woodway Motion Reply, at 2 and 7.The Board denied Woodway’s Motion to Dismiss Legal Issue No. 8, deferring consideration of the matter until the hearing on the merits.
The Board now addresses Legal Issue 8.
RCW 36.70A.020 provides, in relevant part:
The following goals are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations:
(7) Permits.Applications for both state and local government permits should be processed in a timely and fair manner to ensure predictability.(Emphasis added.)
Goal 7 indicates that plans and development regulations shall be guided by the goal to process applications for permits in a timely and fair manner.The issue before the Board in this case is a challenge to two ordinances amending Woodway’s Comprehensive Plan.Both ordinances involve proposals or “applications”for comprehensive plan amendments, not applications for permits.Goal 7 is not implicated for either Ordinance No. 98-338 or 98-339.
Petitioners challenge compliance with RCW 36.70A.470(2).RCW 36.70A.470 provides in its entirety:
(1)Project
review, which shall be conducted pursuant to the provisions of chapter
36.70B RCW, shall be used to make individual project decisions, not land
use planning decisions. If,
during project review, a county or city planning under RCW 36.70A.040
identifies deficiencies in plans or regulations:
(a) The permitting process shall not be used as a comprehensive planning process;
(b) Project review shall continue; and
(c) The identified deficiencies shall be docketed for possible future plan or development regulation amendments.
(2)Each
county and city planning under RCW 36.70A.040 shall include in its development
regulations a procedure for any interested person, including applicants,
citizens, hearing examiners, and staff of other agencies, to suggest plan
or development regulation amendments.The
suggested amendments shall be docketed and considered on at least an annual
basis, consistent with the provisions of RCW 36.70A.130.
(3) For purposes of this section, a deficiency in a comprehensive plan or development regulation refers to the absence of required or potentially desirable contents of a comprehensive plan or development regulation.It does not refer to whether a development regulation addresses a project’s probable specific adverse environmental impacts which the permitting agency could mitigate in the normal project review process.
(4)For purposes of this section, docketing refers to compiling and maintaining a list of suggested changes to the comprehensive plan or development regulations in a manner that will ensure such suggested changes will be considered by the county or city and will be available for review by the public.
(Emphasis added.)
RCW 36.70A.470 was added to the GMA during the 1995 Legislative Session as one of the products of regulatory reform efforts.The legislative findings and intent for this amendment are instructive and provide, in relevant part:
The legislature finds that during project review, a county or city planning under RCW 36.70A.040 is likely to discover the need to make various improvements in comprehensive plans and development regulations.There is no current requirement or process for applicants, citizens, or agency staff to ensure that these improvements are considered in the plan review process. . . . It is the intent of the legislature in enacting RCW 36.70A.470 to establish a means by which cities and counties will docket suggested plan or development regulation amendments and ensure their consideration during the planning process.
Laws of 1995, Ch. 347 § 101.
The legislature’s intent was clearly to provide for
consideration of potential amendments identified or discovered during project
review.The Board holds that the
docketing and consideration of suggested amendments referenced in RCW 36.70A.470
pertains to comprehensive plan or development regulation deficiencies or
potential improvements identified during the project review process.These
docketed suggestions must be reviewed, at least annually, and scheduled
for consideration as possible future amendments during the jurisdiction’s
next RCW 36.70A.130(2) plan amendment review process[4]
or development regulation review.
Regarding Ordinance No. 98-339, LMI’s proposed plan amendment was submitted to Woodway on November 13, 1995, concurrent with LMI’s petition for rezone and prior to LMI’s subdivision application.The subdivision application for the Woodway Highlands project was submitted to Woodway in July of 1996.Consequently, LMI’s suggested plan amendment could not have been identified, or discovered, during the project review process for either the rezone or subdivision application.Further, Petitioners do not characterize the proposed plan amendment as addressing a plan deficiency or improvement.
Likewise, Ordinance No. 98-338, which incorporated the SSAC into the Plan as a subarea plan, was not identified during project review.The staff recommended the SSAC’s incorporation as a subarea plan to comply with the GMA, since the SSAC was a land use policy document that applied to a localized and discrete area of Woodway.Ex. 36, at 3.
RCW 36.70A.470 does not apply to Ordinance No. 98-338 or to LMI’s application for a plan amendment, as ultimately addressed in Ordinance No. 98-339.Therefore, only RCW 36.70A.130 potentially applies to the challenged ordinances.
RCW 36.70A.130 provides, in relevant part:
(2)(a)Each county and city shall establish and broadly disseminate to the public a public participation program identifying procedures whereby proposed amendments or revisions of the comprehensive plan are considered by the governing body of the county or city no more frequently than once every year except that amendments may be considered more frequently under the following circumstances: . . . .
(Emphasis added.)
LMI argues that Woodway must consider plan amendments annually.LMI Motion Response, at 9.LMI points to RCW 36.70A.470(2) to bolster this assertion.LMI Motion Response, at 9-10.LMI points out that it took Woodway two-and-one-half years to consider the proposed amendment, not one.LMI PHB, at 70.Woodway contends that the GMA does not require an amendment decision on LMI’s proposal in the same year it was submitted, or even within a year of submittal.Woodway also claims it actively considered the proposed amendment over the two-and-one-half year period, and acted upon it in 1998.Woodway Response, at 68.
The GMA duty set forth in RCW 36.70A.130 requires Woodway to establish and disseminate a public participation program whereby proposed plan amendments are considered no more frequently than once a year. The Board recognizes that each local government has discretion in establishing and designing its .130 plan amendment process.[5]Here, LMI does not contest whether Woodway has a public participation program or whether Woodway followed its plan amendment process.[6]Instead, LMI argues that taking two-and-one-half years[7] to reach the decision on its proposed amendment is not timely or fair.LMI PHB, at 70. The plain language of RCW 36.70A.130(2)(a) limits consideration of plan amendments to no more frequently than once every year,[8] it does not require annual review.[9] LMI has failed to meet its burden of proof in showing how Woodway’s consideration of Ordinance Nos. 98-339 and 98-339 failed to comply with RCW 36.70A.130.
Regarding LMI’s timeliness argument, LMI has failed to show thatRCW 36.70A.020(7), .470, and .130, read individually or collectively, establish a duty upon Woodway to consider specific plan amendments, such as the one proposed by LMI, on an annual basis.
Lastly, Petitioners argue that not only was Woodway’s timing in processing their amendment unfair, but also that Woodway failed to act in an evenhanded manner since Mayor Drummond and Councilmember Saltonstall, who were “staunch opponents of development of the property,” participated[10] in Woodway’s consideration of, and decision on, Ordinance Nos. 98-338 and 98-339.LMI PHB, at 70.For this case specifically, the appearance-of-fairness question has been resolved by the Snohomish County Superior Court.The Court declared that “the Town’s decision regarding whether to amend the Woodway Comprehensive Plan is legislative.Consequently, the participation of Mayor Jan Taylor Drummond and Councilmember Kent Saltonstall in the Town Council’s deliberations and decision on LMI’s application for an amendment to the Woodway Comprehensive Plan does not violate the appearance of fairness doctrine or plaintiff’s due process rights.”Ex. 206, at 3.Nonetheless, Petitioners argue that Goal 6 provides a basis for the Board to hold that the GMA establishes a higher standard of fairness that applies to legislative actions.October 21, 1998, Hearing on the Merits transcript, at 47-48.Notwithstanding LMI’s urging, the Board does not find the basis for such a standard in the GMA.
Regarding LMI’s fairness argument, LMI has failed to show that the GMA establishes some extraordinary standard of fairness for legislative actions above that already required by law.
6.Woodway
first adopted its Comprehensive Plan by adopting Resolution No. 159, on
June 21, 1994.Ex. 20, at 46.
7.Woodway
then adopted its Comprehensive Plan by adopting Ordinance No. 297, on August
11, 1994.Ex. 20, at 47-48.
8.Other
than the amendments challenged in this action, Woodway has not amended
its Comprehensive Plan since its adoption in 1994.Woodway
Response, at 5.
9.LMI’s
proposed Plan amendment requested: a redesignation on the Comprehensive
Plan Map for the 60.8 acres owned by Chevron U.S.A. that is located in
the south portion of Woodway from IPS and C to SR-14.5; a change to Plan
Goal LU-8 to reflect completion of the special studies; and appropriate
amendments to the Plan that would limit development of the Plan Amendment
Area to no more than 86 lots.Ex.
1.
10.Ordinance
No. 338 amends the Plan to include Special Study Area Criteria (SSAC) as
a subarea plan and new section or chapter to the 1994 Plan.Ex.
179, at 1.
11.The
SSAC applies only to the 60.8-acres that is owned by Chevron U.S.A. and
is at issue here.Ex. 179, at 1.
12.Ordinance
No. 98-339 made 13 amendments to the 1994 Woodway Comprehensive Plan: ten
(10) text amendments --Section I, Vision of Woodway (1), Section II, Conservation
Element (1) and Land Use Element (7), Section III, Implementation Strategy
(1);and three map revisions, affecting
the Plan Amendment Area -- Section IV, Comprehensive Plan Map, Development
Potential Map and Critical Areas Map.Ex.
180, at 1-3; and Supra, at 6-8.
13.The
Plan Amendment Area is the 60.8-acres owned by Chevron.Ex.
1.
14.The
land included in the Plan Amendment Area in LMI’s proposed Plan amendment
is the same land as the Plan Amendment Area redesignated in Ordinance No.
98-339. Exs. 1 and 180.
15.The
land included in the Subarea and the Plan Amendment Area is the same 60.8-acres
owned by Chevron.Exs. 1, 179 and
180.
16.On November 13, 1995, LMI submitted its application for comprehensive plan amendment to Woodway.Ex. 1.
17.On November 13, 1995, LMI submitted its petition for rezone to Woodway.The request sought a rezone ofthe Plan Amendment Area from IPS and C to R-14.5.Ex. 2, at 1.
18.On July 18, 1996, LMI submitted its application for subdivision to Woodway.The application sought 86 lots for the “Woodway Highlands” project for the Plan Amendment Area.Ex. 3, at 1.
19.LMI’s application for comprehensive plan amendment was filed with its petition for rezone and prior to the application for subdivision of the Woodway Highlands project proposal.Exs. 1, 2 and 3.
20.Petitioners did not characterize their proposed plan amendment as a response to a plan deficiency or as an improvement identified during project review.Ex. 1.
21.Woodway staff recommended incorporation of the SSAC into the Plan as a subarea plan, since it was a land use policy document that applied to a localized and discrete area of Woodway.Ordinance No. 98-338 accomplished this incorporation.Ex. 36, at 3 and Ex. 179.
22.The Woodway Planning Commission and Town Council held public hearings, considered, deliberated and acted upon the proposed plan amendments (Ordinance Nos. 98-338 and 98-339) between June, 1997 and May, 1998.LMI PHB, at 10-11, and Woodway PHB, at 14-16.
23.Woodway amended its Plan, on May 18, 1998, to change the map designation of the 60.8-acre Plan Amendment Areaand change policies and text in the Plan.(Ordinance No. 98-339).Ex. 1, 36, 180 and Woodway Response, at 68-69.
24.Woodway amended its Plan, on May 18, 1998, to incorporate the SSAC as a subarea plan for the Plan Amendment Area.(Ordinance No. 98-338)Ex. 36 and 179.
25.The Snohomish County Superior Court determined that the decision regarding whether to amend the Woodway Comprehensive Plan is a legislative decision.Ex. 206, at 3.
4.RCW 36.70A.020(7) provides guidance for processing applications for permits.
5.Neither LMI’s application for plan amendment nor Woodway’s SSAC subarea plan amendment is an application for a permit, subject to Goal 7 -- Permits.Therefore, Ordinance Nos. 98-338 and 98-339 are not subject to the provisions of RCW 36.70A.020(7).
6.The docketing and consideration of suggested amendments referenced in RCW 36.70A.470 pertains to comprehensive plan or development regulation deficiencies or potential improvements identified during the project review process.These docketed suggestions must be reviewed, at least annually, and scheduled for consideration as possible future amendments during the jurisdiction’s next RCW 36.70A.130(2) plan amendment review process or development regulation review.
7.Neither LMI’s application for plan amendment nor Woodway’s SSAC subarea plan amendment was identified during project review as a plan improvement or a response to a plan deficiency.Therefore, Ordinance Nos. 98-338 and 98-339 are not subject to the provisions of RCW 36.70A.470.
8.RCW 36.70A.130(2) does not require annual review of plan amendments.
9.LMI has failed to meet its burden of proof in showing how Woodway’s considerationof Ordinance Nos. 98-339 and 98-338 failed to comply with RCW 36.70A.130.
10.LMI has failed to show that RCW 36.70A.020(7), .470, and 130, read individually or collectively, establish a duty upon Woodway to consider specific plan amendments, such as the one proposed by LMI, on an annual basis.
11.LMI has failed to show that the GMA establishes some extraordinary standard of fairness for legislative actions above that already required by law.
12.LMI has failed to meet its burden of proof in establishing that RCW 36.70A.020(7), .470 or .130 create duties with which the Town of Woodway has failed to comply in adopting Ordinance Nos. 98-338 and 98-339.The Board is not persuaded that on this Legal Issue, Woodway’s actions were clearly erroneous.
(1)On or before September 1, 1991, each county, and each city, shall designate where appropriate:
. . .
(d)Critical areas.[13]
(2)In making the designations required by this section, counties and cities shall consider the guidelines established pursuant to RCW 36.70A.050.
RCW 36.70A.050 provides, in relevant part:
(3)The guidelines under subsection (1) of this section shall be minimum guidelines that apply to all jurisdictions, but also shall allow for regional differences that exist in Washington state.The intent of these guidelines is to assist counties and cities in designating the classification of . . . critical areas under RCW 36.70A.170.
Chapter 365-190 WAC contains the Department of Community, Trade and Economic Development’s (CTED) Minimum Guidelines to Classify Agriculture, Forest, Mineral Lands and Critical Areas (Guidelines).Part Three of the Guidelines includes WAC 365-190-040, which provides guidance on “Process," and WAC 365-190-080, which provides guidance on “Critical Areas.”
RCW 36.70A.172 provides, in relevant part:
(1)In 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.In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.
The Board’s Rules of Practice and Procedure, at WAC 242-02-570(1),provide:
A petitioner, or a moving party when a motion has been filed, shall submit a brief on each legal issue it expects a board to determine.Failure by such a party to brief an issue shall constitute abandonment of the unbriefed issue.Briefs shall enumerate and set forth the legal issue(s) as specified in the prehearing order if one has been entered.
(See also, Prehearing Order, Section X, July 29, 1998.)
In briefing Legal Issue No. 2, LMI offered no argument regarding how Ordinance No. 98-339 fails to comply with RCW 36.70A.172.LMI PHB, at 38 - 48.Issues not briefed are abandoned.WAC 242-02-570(1).
On this Legal Issue, LMI challenges only Ordinance No. 98-339.LMI contends that when Woodway adopted Ordinance No. 98-339, it failed to comply with the GMA’s substantive and procedural requirements for identifying and designating critical areas.LMI also argues that Woodway cannot ignore GMA requirements for designating critical areas.LMI PHB, at 38-48, LMI Reply, at 10-11.Woodway counters that in adopting Ordinance No. 98-339, it did not designate critical areas pursuant to RCW 36.70A.050, .170 and .172.However, it did protect environmentally sensitive areas through the Urban Restricted (UR) designation for the 60.8-acre Plan Amendment Area, pursuant to RCW 36.70A.130; consequently, many of Petitioners’ arguments are irrelevant.Woodway Response, at 42.
It is undisputed that the GMA requires that local governments identify, designate and protect critical areas. Nonetheless, Woodway asserts that it is entitled to protect environmentally sensitive areas through the use of land use designations in its Plan. Id.“Woodway chose to protect the environmentally sensitive areas on-site through the Comprehensive Plan amendments process (pursuant to RCW 36.70A.130) not through designating the areas on-site as “critical areas” through the provisions [of] RCW 36.70A.050, .170, .172 and WAC 365-190-080 and -040.” Id.
Woodway offers an alternative to the requirements of the GMA for designating and protecting critical areas under the Act.However, the alternative process offered by Woodway evades the analytical rigor and scientific scrutiny required by the GMA in RCW 36.70A.050, .170 and .172.Identifying and designating critical areas pursuant to RCW 36.70A.050, .170, and .172 requires local governments to consider the Guidelines established by CTED (RCW 36.70A.050, .170), and to “include the best available science in developing policies and development regulations to protect the functions and values of critical areas.” (RCW 36.70A.172.)The results achieved through the application of these GMA requirements provide the scientific foundation to bolster and support performance standards and development regulations that protect critical areas as required by RCW 36.70A.060.This scientific and analytical process may also, in certain limited instances, provide information to justify supplementary use of land use designations on the Plan’s future land use map as an additional layer of critical areas protection.See Litowitz v. City of Federal Way (Litowitz), CPSGMHB Case No. 96-3-0005, Final Decision and Order (Jul. 22, 1996).While local governments have some discretion in identifying, designating and protecting critical areas, they may not ignore the critical areas requirements of the GMA.Thus, the threshold question is whether Woodway’s adoption of Ordinance No. 98-339 identified and designated critical areas.
A review of Ordinance No. 98-339 and its supporting documentation is instructive in resolving the question of whether Woodway identified and designated critical areas through its adoption.
On May 27, 1997, the Woodway Planning Commission received a Staff Report on theWoodway Highlands Applications.The report includes an evaluation of the [LMI’s] request to amend the plan, wherein critical areas (wetlands and wildlife habitats) are discussed.Ex. 36, at 8 -18.The report includes a “Habitat Quality Map” for the Plan Amendment Area.Ex. 36, Figure 2-2, at 26(See also,Ex. 33, FEIS, Vol. I, Figure 2-2, at 2-25).This 1997 report stated:
The Comprehensive Plan Policy LU-8 set the stage for thorough analysis of the environmental conditions on the 60.8 [acre] parcel and of any adverse impacts that development might cause.The requirement for special studies prompted the preparation of a detailed and lengthy EIS which includes a range of alternatives and detailed sections on critical areas and wildlife habitat . . .
The EIS established the location, function and value of a 2.4 acre wetland which was mapped as a priority habitat by the Washington Department of Fish and Wildlife Habitat and Species Database.
Ex. 36, at 26-27 (emphasis added).
On May 4, 1998, Woodway’s Town Council adopted its findings of fact, conclusions of law and decision on the plan amendment in question.This decision document, which includes the amendatory language contained in Ordinance No. 98-339, provides, in relevant part:
[Finding of Fact] 21. The SSAC call for preparation of special studies to evaluate wildlife habitat areas and other environmental resource areas on the Chevron Property [Plan Amendment Area].The Draft and Final EIS for the proposal included those special studies, among others.As a result of those special studies, important wetland and wildlife habitat areas were identified.These areas qualify as “fish and wildlife habitat conservation areas” under the State Guidelines for identification of“critical areas” subject to designation and protection under the State Growth Management Act.See WAC 365-190-080.Ex. 181, at 6 (emphasis added).
On May 18, 1998, Woodway’s Town Council adopted Ordinance No. 98-339, amending its Plan.Section 1 of Ordinance No. 98-339 provides, in relevant part:
d.The Critical Areas Map in the Comprehensive Plan shall be revised to shade the areas outside of the disturbed areas of the site (identified in 1(b) above) thus indicating that they are permanently protected as wildlife habitat, wetlands, steep slopes, greenbelt, open space, and other natural resources on-site in their undeveloped natural state.
Ex. 180, Ordinance No. 98-339, Sec. 1(d),at 2 (emphasis added).
Notwithstanding the assertions of Woodway’s counsel that “Woodway did not designate critical areas,” the actions of the Town Council demonstrate otherwise.The staff report indicates that critical areas were mapped and discussed in the EIS prepared in 1997.The supporting decision document adopted May 4, 1998 by the Council clearly indicates that the CTED Guidelines were considered and that the areas within the 60.8-acre Plan Amendment Area were identified as critical areas.[14]The Council’s adoption of Ordinance No. 98-339, Section 1(d), clearly directs revision of Woodway’s Critical Areas Map to designate portions of the 60.8-acre Plan Amendment Area to indicate that it is to be protected.In adopting the May 4, 1998 decision document and Ordinance No. 98-339, Woodway identified and designated critical areas within the 60.8-acre Plan Amendment Area.Therefore, the question before the Board is whether Woodway’s action complies with the procedural and substantive requirements of the GMA for identifying and designating critical areas.
LMI suggests that Woodway failed to follow the Guidelines procedures for designating critical areas.LMI PHB, at 42-45.The Guidelines discuss the “Process” for identifying and designating critical areas at WAC 365-190-040.In discussing the designation amendment process, the Guidelines suggest that: “Procedures for designation should provide a rational and predictable basis for accommodating change” WAC 365-190-040(2)(g); the public should receive “early and timely public notice of pending designations”WAC 365-190-040(2)(a); and critical area designation changes should be based on changed circumstances, errors in designation or new information on natural resource land or critical area status,WAC 365-190-040(2)(g)(i-iv).The special studies and EIS developed to accompany LMI’s proposed plan amendment[15] was a rational process that evaluated a range of alternatives, thereby enhancing predictability.The studies and EIS contained new information upon which to base changes in Woodway’s Critical Areas Map.Also, the public process that accompanied the special study, EIS development, and the review of the amendment provided adequate notice to LMI and the public of the pending designations.Woodway properly considered the Guidelines regarding procedures, in identifying and designating critical areas in the Plan Amendment Area.
LMI also contends that Woodway improperly identified and designated wildlife habitat conservation areas as critical areas (WAC 365-190-080).LMI PHB, at 39-42.Local governments have discretion in identifying and designating the critical areas defined in the Act.In this Board’s first case, the Board stated:
The GMA’s definition of “critical areas” at RCW 36.70A.030(5) is not exclusive and prescriptive: local governments must consider, but are not bound by, that definition and the definitions used in the minimum guidelines developed by CTED. Tracy v. Mercer Island, (Tracy) CPSGPHB Case No. 92-3-0001, Final Decision and Order (Jan. 5, 1993), at 23(emphasis added).
Woodway’s May 4, 1998 decision document is evidence that Woodway considered the Guidelines and exercised its local discretion in identifying and designating certain wetlands[16] and wildlife habitats as critical areas.Woodway properly identified and designated wetland and habitat conservation areas, pursuant to the Guidelines, when it adopted Ordinance No. 98-339.LMI has failed to meet its burden of proof in showing that Woodway failed to comply with RCW 36.70A.170, .172, .050 or WAC 365-190-040 and -080 when it adopted Ordinance No. 98-339.The Board is not persuaded on this Legal Issue that Woodway’s action was clearly erroneous.
26.Petitioners have failed to brief Legal Issue No. 2 regarding compliance with RCW 36.70A.172.LMI PHB, at 38-48.
27.The decision document adopted by the Council on May 4, 1998 identifies lands within the 60.8-acre Plan Amendment Area as critical areas.Ex. 181, at 6.
28.Section 1(d) of Ordinance No. 98-339 designates lands within the 60.8-acre Plan Amendment Area as critical areas on the Woodway Critical Area Map.Ex. 180, at 2.
29.LMI and the public had notice of the special study, EIS development and the review of the plan amendment.Exs. 33, 36, 180 and 181.
30.Woodway considered the Guidelines in identifying and designating critical areas.Exs. 180, at 2, and 181, at 6.
13.Pursuant to WAC 242-02-570(1), LMI has abandoned its challenge to Woodway’s compliance with RCW 36.70A.172.
14.RCW 36.70A.050, .170, and .172 provide the analytical process and scientific foundation for identifying, designating and protecting critical areas.
15.Application of the GMA’s scientific and analytic critical areas process may, in certain limited instances, provide information to justify supplementary use of land use designations on the Plan’s future land use map as an additional layer of critical areas protection.
16.Local governments may not ignore the critical areas requirements (RCW 36.70A.050, .060, .170 and .172) of the GMA.
17.Woodway identified and designated critical areas in the 60.8-acre Plan Amendment Area when it adopted Ordinance No. 98-339.
18.Woodway properly followed the Guidelines regarding procedures in identifying and designating critical areas in the 60.8-acre Plan Amendment Area.
19.Local governments have discretion in identifying and designating critical areas.
20.Woodway properly identified and designated wetlands and wildlife habitat conservation areas as critical areas, pursuant to the Guidelines, within the 60.8-acre Plan Amendment Area, when it adopted Ordinance No. 98-339.
21.LMI has failed to meet its burden of proof in showing that Woodway failed to comply with RCW 36.70A.170, .172, .050 or WAC 365-190-040 and -080 when it adopted Ordinance No. 98-339.The Board is not persuaded on this Legal Issue that Woodway’s action was clearly erroneous.
Significantly, the Act requires more than mere consideration of the planning goals.In an early case, the Board concluded that “the substantive element of RCW 36.70A.020 is the heart of the GMA. . . . Comprehensive plans and implementing development regulations will be held to the highest standard of compliance. . . .” Association of Rural Residents v. Kitsap County (Rural Residents), CPSGMHB Case No. 93-3-0010, Final Decision and Order (Jun. 3, 1994), at 29 (original emphasis omitted, emphasis added).The Board recently affirmed the substantive effect of the planning goals first articulated in Rural Residents.In Rabie, et al., v. Burien, CPSGMHB Case No. 98-3-0005c, Final Decision and Order (Oct. 19, 1998), at 5-6, the Board stated:
Many of the GMA provisions argued by [petitioners] . . . are planning goals, RCW 36.70A.020.The GMA planning goals “guide the development and adoption of comprehensive plans and development regulations.”RCW 36.70A.020.The first prong of the mandate to “be guided by” requires procedural compliance.The second prong requires substantive compliance.First, the elected decisionmakers must consider the planning goals when adopting or amending the plan or development regulations; second, the adopted or amended plan or development regulations must substantively comply with the planning goals.See Association of Rural Residents v. Kitsap County, CPSGMHB Case No. 93-3-0010, Final Decision and Order (Jun. 3, 1994), at 23-28.Local governments must use the planning goals “to point the way for the enactment of development regulations and comprehensive plans that