Washington State: Mixed GMA decisions from Court of Appeals

Report from the Building Industry of Washington

May 11, 2007

The Washington State Court of Appeals, Division II handed down two significant Growth Management Act (GMA) decisions this month with mixed results for the building industry.

Court of Appeals Upholds Radical Growth Management Hearings Board Decision

The first case involved an ongoing dispute between the anti-growth group, Futurewise, and Thurston County over the size of the County’s urban growth areas and rural densities. BIAW and the Olympia Master Builders intervened in the case. Unfortunately, the Court of Appeals sided with Futurewise on a number of issues. Most troubling was the Court’s decision that Thurston County’s urban growth boundaries are too big. The Court ruled the County’s Urban Growth Areas (UGA) exceeded projected population growth by 38%, and thus violated the GMA. Specifically, the Court ruled the Western Washington Growth Management Hearings Board did not abuse its authority when it determined this amount of extra land was too high, and that any amount over 25% was a violation of the GMA.

BIAW argued the GMA explicitly grants local government wide deference in setting the size of their UGAs. BIAW also pointed to the copious amount of evidence in the record supporting the County’s reasoning in setting the size of the UGAs, but the Court flat-out ignored it. The lone bright spot was the Court’s decision that the Growth Board erred in striking down the County’s rural densities. The Court agreed with BIAW that Thurston County used “innovative techniques,” such as cluster development, to satisfy the “variety of rural densities” provision of the GMA.

However, in reaching its decision, the Court ruled that rural densities greater than one home per five acres is a per se violation of the GMA. The Court made this astonishing statement despite the fact the GMA does not contain any minimum rural density requirement. BIAW and OMB will appeal the decision to the Washington Supreme Court.

Victory for Landowner in Snohomish County

In a separate GMA decision before the Court of Appeals, Division II, a landowner
seeking to build a car dealership on his property in Snohomish County scored a
huge victory.
In City of Arlington et al. v. Central Puget Sound Growth Management Hearings Board, the Court of Appeals overturned a Growth Board decision which struck down a Snohomish County ordinance re-designating a small strip of land near the City of Arlington from agricultural to commercial.

Futurewise—in their ongoing quest to destroy all property rights—challenged the County’s ordinance allowing development on the piece of property. Not surprisingly, Futurewise’s allies on the Growth Board ruled against the property owner and the County. The Growth Board ruled Snohomish County erred by allowing redesignating the land to allow development. In a resounding defeat for Futurewise, the Court of Appeals reversed the Growth Board. The Court ruled that ample evidence in the record supported the County’s decision to allow development on the property.

The Court found the property was located directly next to the City of Arlington’s UGA and thus was no longer suitable for farming. The property owner and the
County provided overwhelming evidence bolstering the argument that the property was no longer economically viable. For example, the previous landowners testified that the crops they grew and sold on their property generated less revenue than the property taxes. The victory is especially vindicating for Snohomish County. Gary Locke, in one of his last acts as Governor, imposed monetary sanctions against the County for its decision to re-designate the land to allow development.

City of Kent Case Goes to Washington Supreme Court

In yet another important GMA case, the Washington Supreme Court decided this month to hear the City of Kent buffer case. BIAW and the Master Builders of King & Snohomish Counties joined the City in appealing a Central Puget Sound Growth Board ruling which disallowed the City of Kent’s buffers and wetlands designations. Futurewise, along with Governor Christine Gregoire, the state Department of Ecology and the Department of Community, Trade & Economic Development are lined up against the City of Kent.

Unfortunately, so too is Attorney General Rob McKenna. McKenna’s office is arguing in favor of larger buffers and setting aside large areas as “wetlands” under the guise of “best available science.” This case will significantly affect the building industry. It will determine whether faceless bureaucrats in the state agencies have ultimate power over local planning, or whether locally elected officials are allowed to plan for growth through the legislative process. Oral arguments will take place next month.