Wright's Crossing, Llc v. Island County ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WRIGHT’S CROSSING, LLC; SCOTT
B. THOMPSON, its Manager/Owner, No. 82047-8-I
Appellant, DIVISION ONE
v.
UNPUBLISHED OPINION
ISLAND COUNTY, acting through its
Board of Commissioners;
Respondent,
WHIDBEY ENVIRONMENTAL ACTION
NETWORK (“WEAN”);
Intervenor-Respondent,
and
ENVIRONMENTAL AND LAND USE
HEARING OFFICE, acting through the
WESTERN WASHINGTON REGION
GROWTH MANAGEMENT HEARINGS
BOARD,
Defendant.
CHUN, J. — In 2017, Wright’s Crossing, LLC, and its manager, Scott
Thompson (collectively, Wright’s Crossing) requested that Island County
(County) expand the Oak Harbor Urban Growth Area (UGA) by about 300 acres.
Wright’s Crossing owned development rights for most of the 300 acres at issue
and wanted to build housing on it. The County conducted an initial review of
Wright’s Crossing’s proposed modification to the Oak Harbor UGA and declined
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82047-8-I/2
to place the proposal on its annual review docket. Wright’s Crossing appealed
the decision to the Growth Management Hearings Board (GMHB) under the
Growth Management Act (GMA). Whidbey Environmental Action Network
(WEAN) intervened. The GMHB dismissed the appeal, concluding that the
decision not to docket the proposal was discretionary and that it could not
provide relief. Wright’s Crossing appealed to Thurston County Superior Court
under the Administrative Procedure Act (APA). The superior court affirmed.
Wright’s Crossing appeals again and we affirm.
I. BACKGROUND
A. GMA Structure
The purpose of the GMA is to encourage a comprehensive and
coordinated approach to managing population growth. RCW 36.70A.010. It
requires a large county to adopt a comprehensive plan, which is a “generalized
coordinated land use policy statement of the governing body of a county or city.”1
RCW 36.70A.030(5), RCW 36.70A.040. The comprehensive plan must include a
designation of a UGA in which “urban growth shall be encouraged and outside of
which growth can occur only if it is not urban in nature.” RCW 36.70A.110(1),
(6). Counties must designate UGAs with sufficient areas and densities to
accommodate the projected growth in that area for 20 years. RCW
36.70A.110(2).
1
RCW 36.70A.120 requires that a county perform its activities in conformity with
its comprehensive plan.
2
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The GMA requires counties to adopt Countywide Planning Policies
(CWPPs), which are “used solely for establishing a countywide framework from
which county and city comprehensive plans are developed” and “ensure that city
and county comprehensive plans are consistent.” RCW 36.70A.210(1). CWPPs
must address policies for planning within UGAs. RCW 36.70A.210(3).
The GMA requires counties to conduct a periodic review—on an eight-
year cycle—of their UGAs to determine whether revisions are necessary.
RCW 36.70A.130(3)–(5). But amendments to a comprehensive plan, including
modifications to the UGA, may occur outside the periodic review schedule. The
GMA requires counties to establish a public participation program identifying
schedules and procedures for the county to consider proposed amendments or
revisions no more than once a year. RCW 36.70A.130(2)(a).
B. The County’s Comprehensive Plan Amendment Procedure
As required by RCW 36.70A.130(2), Island County Code (ICC) Chapter
16.26 sets forth the process for review and amendment of the County’s
Comprehensive Plan. Members of the public may apply for an amendment to the
Comprehensive Plan. ICC 16.26.050.A. When it receives an amendment
proposal, the Planning Commission must conduct an initial review and
recommend whether the Board of Commissioners should include the proposal on
the annual review docket. ICC 16.26.060. In conducting this initial review, the
Planning Commission should consider multiple factors, including whether the
County has sufficient resources to conduct a full review of the proposal.
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No. 82047-8-I/4
ICC 16.26.060.E. Once the Planning Commission makes a recommendation, the
Board of Commissioners must consider the proposal and determine whether to
include the proposal on the annual review docket. ICC 16.26.060.
Section 3.3 of the County’s CWPP addresses modifications to UGAs.
CWPP 3.3.1 provides:
The review of a UGA for possible expansion is a significant
undertaking. Generally UGAs should only be enlarged or modified
during the periodic update process; however, UGAs may be modified
outside of the periodic update process if necessary to accommodate
major and unanticipated fluctuations in Island County’s population,
or if necessary to accommodate a large employer or institution which
cannot reasonably be accommodated within an existing UGA.
CWPP 3.3.3 sets forth four circumstances under which the County may expand
UGAs outside the periodic review schedule—including, as applicable here, when
population or employment growth in the UGA equals or exceeds 50 percent of
the growth allocated at the start of the planning process.2 Finally, CWPP 3.3.13
provides that proposals to modify UGAs “shall” be placed on the County’s annual
review docket, according to the process set forth in ICC 16.26.
The County’s Comprehensive Plan, at Section 1.5.1.2.3, provides criteria
for UGA modification and includes language almost identical to the CWPP. Like
CWPP 3.3, Section 1.5.1.2.3 states that UGAs may be modified if one of the
same four circumstances is met. Section 1.5.1.2.3 also says that a modification
proposal “shall” be placed on the County’s annual review docket but does not
mention ICC 16.26.
2
The “start of the planning process” is when the County most recently completed
a periodic review.
4
No. 82047-8-I/5
The County designated UGAs for Oak Harbor, Coupeville, Langley, and
Freeland. The periodic review pertinent to this case was completed in December
2016. During the periodic review, the County finalized the boundaries of its
UGAs after conducting a Buildable Lands Analysis (BLA). In the BLA, the
County concluded that, based on projected growth over the next 20 years, the
Oak Harbor and Coupeville UGAs had enough land to accommodate the growth,
and the Langley and Freeland UGAs had more capacity than required to
accommodate the growth.
C. Wright’s Crossing’s Amendment Proposal
In August 2017, Wright’s Crossing proposed an amendment expanding
the Oak Harbor UGA by about 300 acres. It owns development rights to about
250 acres of the 300 acres at issue and sought to develop 1,000 to 1,500 homes
in the area.
Wright’s Crossing contended that at least two of the alternative expansion
criteria from Comprehensive Plan Section 1.5.1.2.3 and CWPP 3.3.3 were
satisfied.3 It pointed to the increase of personnel at Whidbey Island Naval Air
Station and civilian job growth.
The Planning Commission reviewed Wright’s Crossing’s proposal and
recommended that the Board of Commissioners exclude the proposal from the
3
Wright’s Crossing focused on these criteria: “Population growth in the UGA
since the start of the planning period equals or exceeds 50% of the population growth
allocated to the UGA at the start of the planning period,” and, “Employment growth in the
UGA since the start of the planning period equals or exceeds fifty percent of the
employment growth allocated to the UGA at the start of the planning period.”
Comprehensive Plan Section 1.5.1.2.3; CWPP 3.3.3.
5
No. 82047-8-I/6
annual review docket. The Planning Commission noted that Wright’s Crossing’s
proposed amendment would require other Comprehensive Plan amendments;
that while the proposed amendment was compatible with housing goals, it
conflicted with other Comprehensive Plan goals; and that full review would be
resource-intensive and unwarranted.
The Board of Commissioners excluded Wright’s Crossing’s proposal from
the annual review docket for 2018 in County Resolution C-110-17, PLG-012-17.4
The Board noted that the existing Oak Harbor UGA sufficed to accommodate the
projected employment and population growth and that the proposed amendment
conflicted with the CWPPs.
D. Appeals
Wright’s Crossing appealed the Board of Commissioners’ decision to the
GMHB. WEAN intervened as a party with an interest in the matter. The County
moved to dismiss the appeal, arguing in part that under Stafne,5 the County’s
decision not to docket was discretionary and thus the GMHB could not review the
issue. The County also argued that the GMHB should dismiss the appeal for
failure to state a claim upon which relief could be granted. WEAN also moved to
dismiss.
The GMHB dismissed for failure to state a claim upon which relief could
be granted. It determined that no law imposed a duty on the County to place
Wright’s Crossing’s proposal on the annual review docket and thus it could not
4
Exclusion was without prejudice under ICC 16.26.060.D.
5
Stafne v. Snohomish County, 174 Wn.2d 24, 271 P.3d 868 (2012).
6
No. 82047-8-I/7
provide any relief. Wright’s Crossing moved for reconsideration, which motion
the GMHB denied.
Wright’s Crossing then appealed the GMHB’s dismissal to Thurston
County Superior Court under the APA, chapter 34.05 RCW. The superior court
affirmed.
II. ANALYSIS
A. Does Section 1.5.1.2.3 Impose a Duty to Docket?
1. Waiver
WEAN says that Wright’s Crossing waived its argument based on
language at issue in Comprehensive Plan Section 1.5.1.2.36 because it did not
reference it before the GMHB or the superior court. We disagree.
“RCW 34.05.554 [of the APA] precludes appellate review of issues not
raised below.” Bowers v. Pollution Control Hr’gs Bd., 103 Wn. App. 587, 597, 13
P.3d 1076 (2000). And “‘[i]n order for an issue to be properly raised before an
administrative agency, there must be more than simply a hint or a slight
reference to the issue in the record.’” Goding v. Civil Serv. Comm’n of King
County, 192 Wn. App. 270, 297, 366 P.3d 1 (2015) (alteration in original)
(quoting King County v. Washington State Boundary Review Bd., 122 Wn.2d
648, 670, 860 P.2d 1024 (1993)).
Wright’s Crossing did not quote the language at issue from Section
1.5.1.2.3 in any of its petitions or briefs below. But it did cite Section 1.5.1.2.3
6
The language at issue in Section 1.5.1.2.3 states, “Modifications proposed by . .
. individuals shall be submitted to the County . . . and placed on the County’s annual
review docket.” (Emphasis added.)
7
No. 82047-8-I/8
multiple times, quoting a different portion of the provision.7 And the GMHB
specifically quoted the language at issue in its order of dismissal. Immediately
following the quoted language, the GMHB noted, “The Board has carefully
reviewed all Comprehensive Plan sections and all CWPPs referenced by the
Petitioner.”
Granted, citation to Section 1.5.1.2.3 without quoting or discussing the
language at issue may seem like “simply a hint or a slight reference to the issue.”
Goding, 192 Wn. App. at 297 (quoting Washington State Boundary Review Bd.,
122 Wn.2d at 670). But this rule ensures that the decision-maker—here, the
GMHB—had adequate opportunity to address the issue. See Washington State
Boundary Review Bd., 122 Wn.2d at 669 (noting that one policy reason behind
rules like RCW 35.05.554 is “‘protecting agency autonomy by allowing an agency
the first opportunity to apply its expertise, exercise its discretion, and correct its
errors’” (quoting Fertilizer Inst. v. United States Environmental Protection
Agency, 935 F.2d 1303, 1312–13 (D.C. Cir. 1991))). And the GMHB quoted the
language at issue, specifically said that the Petitioner had referenced Section
1.5.1.2.3, and said that the GMHB had carefully considered the section. No
matter how Wright’s Crossing presented the issue, the GMHB had the
opportunity to reach the issue and indeed addressed it. Wright’s Crossing thus
did not waive this argument.
7
Wright’s Crossing quoted this language, “If any of these criteria are met, it will
trigger a reevaluation of the population projections.” Section 1.5.1.2.3.
8
No. 82047-8-I/9
2. Duty
Wright’s Crossing says that Comprehensive Plan Section 1.5.1.2.3
imposes a duty on the County to place its proposal on the County’s annual
review docket. Thus, Wright’s Crossing asserts, by showing that population or
employment growth would exceed 50 percent of the population growth allocated
to the UGA, it had a right to have its proposal placed on the annual review
docket. The County does not address the specific language of the
Comprehensive Plan but says that ICC 16.26 establishes that docketing
decisions are discretionary. WEAN concurs with this reasoning and says that
Section 1.5.1.2.3 imposes no mandatory duty to docket. We agree with the
County and WEAN.
The APA, chapter 34.05 RCW, governs this appeal. In an APA appeal,
we sit “in the same position as the superior court, applying the standards of the
APA directly to the record before the agency.” Top Cat Enters., LLC v. City of
Arlington, 11 Wn. App. 2d 754, 759, 455 P.3d 225 (2020). We will overturn an
agency decision only if the agency erred in one of the ways listed under
RCW 34.05.570(3). Id. at 759–60. Wright’s Crossing contends that the GMHB
“erroneously interpreted or applied the law” under RCW 34.05.570(3)(d). “The
burden of demonstrating the invalidity of agency action is on the party asserting
invalidity.” RCW 34.05.570(1)(a).
We review de novo the GMHB’s legal conclusions, “giving substantial
weight to the [GMHB]’s interpretation of the GMA.” Whatcom County v. Hirst,
9
No. 82047-8-I/10
186 Wn.2d 648, 667, 381 P.3d 1 (2016). Because the GMHB dismissed Wright’s
Crossing’s petition for failure to state a claim, we must assume that all the facts
alleged in it are true, and no facts are in dispute in this appeal. See Stickney v.
City of Sammamish, No. 15-3-00017, at 2 (Cent. Puget Sound Growth Mgmt.
Hr’gs Bd. (March 14, 2016) (“All facts alleged in the plaintiff’s complaint are
presumed true”).
The pertinent language in Section 1.5.1.2.3 states:
Generally UGAs should only be enlarged or modified during the
periodic update process; however, UGAs may be modified outside
of the periodic update process if necessary to accommodate major
and unanticipated fluctuations in Island County’s population, or if
necessary to accommodate a large employer or institution which
cannot reasonably be accommodated within an existing UGA.
Urban Growth Areas may be expanded outside of a GMA mandated
periodic update cycle if the expansion is necessary for one of the
following reasons.
A. Population growth in the UGA since the start of the planning
period equals or exceeds 50% of the population growth
allocated to the UGA at the start of the planning period; or
B. Employment growth in the UGA since the start of the planning
period equals or exceeds 50% of the employment growth
allocated to the UGA at the start of the planning period; or
C. Written notification is provided by the Department of Defense,
or other reliable and verifiable information is obtained,
indicating that prior to the next periodic update cycle, Whidbey
Naval Air Station Whidbey staffing will increase in a manner
which would result in population growth equal to or exceeding
50% of the population growth allocated to the UGA at the start
of the planning period; or
D. An opportunity is presented to bring a large scale business,
industry, institution, or other significant employer to Island
County, and the County and municipality agree that due to the
facility or institution’s unique characteristics there is no
suitable land available inside the current UGA.8
8
These four circumstances allowing for modification are identical to those in
CWPP 3.3.
10
No. 82047-8-I/11
If any of these criteria are met, it will trigger a reevaluation of the
population projections, based on the range of options provided to the
County by the Washington State Office of Financial Management.
From there, the allocations and buildable lands analysis will also be
reevaluated on a countywide scale.
...
UGA modifications outside of the period update cycle may be
proposed by a municipality, the County, or an individual.
Modifications proposed by municipalities or individuals shall be
submitted to the County in a manner consistent with the County’s
procedures for comprehensive plan amendments and placed on the
County’s annual review docket. Modifications proposed by
individuals shall not be approved by the County unless the
modification is supported by the legislative authority of the affected
municipality. For any proposed UGA modification, a current land
capacity analysis shall be prepared and shall utilize the procedures
described in the CWPPs.
(Emphasis added.)
a. Whether the last paragraph of Section 1.5.1.2.3 imposes a
mandatory duty to docket
The last paragraph of Section 1.5.1.2.3 on its face may appear to impose
a duty to docket Wright’s Crossing’s proposal. It states that amendment
proposals “shall be . . . placed on the County’s annual review docket.” Wright’s
Crossing says that the word “shall” must be read to be mandatory here because
the ICC’s interpretive rule says “shall” is always mandatory. ICC 16.26.030. But
that applies to the ICC; the Comprehensive Plan does not provide a similar rule.
And the word “shall” is not always mandatory. See State v. Rice, 174 Wn.2d
884, 896–97, 279 P.3d 849 (2012) (“Although the word ‘shall’ is presumptively
mandatory, its meaning ‘is not gleaned from [use of] that word alone because our
purpose is to ascertain legislative intent of the statute as a whole.’” (alteration in
11
No. 82047-8-I/12
original) (citation omitted) (quoting State v. Krall, 125 Wn.2d 146, 148, 881 P.2d
1040 (1994))).
And even if “shall” is mandatory here, the Comprehensive Plan is not the
sole source of directives for the County. See RCW 36.70A.3201 (noting that
counties must make their local planning decisions “within a framework of state
goals and requirements”). Thus, in interpreting the Comprehensive Plan
provision, we also look to the GMA, its implementing regulations, CWPPs, and
the Island County Code. Together, these sources govern county planning. A
review of the overall scheme reveals that no duty exists for the County to skip its
initial review and automatically place an amendment proposal on its annual
review docket.
The GMA sets forth an expectation that CWPPs and comprehensive plans
be consistent, but in case of a conflict, the CWPPs control. See RCW
36.70A.210 (noting that the CWPP framework ensures consistency). WAC 365-
196-305(3) states that a county’s comprehensive plan “must” comply with the
CWPPs. See also Stickney v. Cent. Puget Sound Growth Mgmt. Hearings Bd.,
11 Wn. App. 2d 228, 232, 244, 453 P.3d 25 (2019) (noting that comprehensive
plans must track CWPPs, and revealing that if an inconsistency exists, the
comprehensive plan must change, not the CWPP). And Section LU 2.1.1 of the
Comprehensive Plan notes that CWPPs “will be given priority when conflicts
arise between jurisdictions.” While this case presents a conflict between the
Comprehensive Plan and the CWPPs, not between comprehensive plans, this
12
No. 82047-8-I/13
provision highlights the priority the County gives to CWPPs, thus bolstering the
argument that they should control in this case.
The CWPP differs from the Comprehensive Plan on this issue.
CWPP 3.3.13 states:
Modifications proposed by Municipalities or individuals shall be
submitted to the County in a manner consistent with the County’s
procedures for comprehensive plan amendments and placed on the
County’s annual review docket (per ICC 16.26).
(Emphasis added). Unlike Section 1.5.1.2.3, it includes the phrase “per
ICC 16.26.” Because CWPP 3.3.13 and Section 1.5.1.2.3 conflict in this regard,
the CWPP controls and docketing decisions must be made “per ICC 16.26.”
As discussed above, ICC 16.26 establishes an amendment proposal
review process that is discretionary and considers available resources.
According to the ICC 16.26 process, the Planning Commission must conduct an
initial review and make a recommendation to the Board of Commissioners.
ICC 16.26.060. The Board must then decide whether to place the amendment
proposal on the annual review docket. ICC 16.26.060. Under this process, a
proposed amendment is not automatically placed on the annual docket. And the
County adhered to this process in declining to docket Wright’s Crossing’s
proposal. It considered the factors in ICC 16.26.060, including the County
resources. Because this is the approach set forth by the CWPP, it controls.
More generally, a self-imposed automatic duty to docket is unlikely given
the regulatory scheme. WAC 365-196-310(4)(e)(i) emphasizes:
Because of the significant amount of resources needed to conduct a
review of the urban growth area, and because some policy objectives
require time to achieve, frequent, piecemeal expansion of the urban
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No. 82047-8-I/14
growth area should be avoided. Site-specific proposals to expand
the urban growth area should be deferred until the next
comprehensive review of the urban growth area.9
WAC 365-196-640(6)(b) notes that “consideration of proposed amendments
does not require a full analysis of every proposal within twelve months if
resources are unavailable.” And WAC 365-196-640(6)(d) says, “Once a
proposed amendment is received, the county or city may determine if a proposal
should receive further consideration as part of the comprehensive plan
amendment process,” showing the discretionary nature of decisions like the one
the County made here.
Given the foregoing, as well as the substantial weight we afford to the
GMHB’s interpretation of the GMA, it did not err by concluding that the County
did not have a duty to docket Wright’s Crossing’s proposal. See Hirst, 186
Wn.2d at 667.
b. Whether the “trigger” language in Section 1.5.1.2.3 imposes a
mandatory duty to docket
Section 1.5.1.2.3 states that if the population growth criteria are met “it will
trigger a reevaluation of the population projections” and of the BLA. Wright’s
Crossing says this language also establishes a mandatory duty to docket. It
contends that reevaluation occurs through automatic inclusion on the annual
review docket. We disagree.
9
See also CWPP 3.3.1 (“The review of a UGA for possible expansion is a
significant undertaking.”).
14
No. 82047-8-I/15
This portion of Section 1.5.1.2.3 does not mention the docketing process.
Assuming the language is mandatory10—meaning that if one of the four
circumstances exist, then reevaluation of the population projections and the BLA
must occur—it still does not say that reevaluation occurs through the docketing
process, or that docketing is required. Nothing in this portion of the Section
suggests a deviation from the amendment review process set forth in ICC 16.26.
The language of this portion of Section 1.5.1.2.3 does not impose a duty to
docket.
B. Did the GMHB Err by Dismissing for Failure to State a Claim?
Wright’s Crossing says that the GMHB erred by granting the County’s
motion to dismiss for failure to state a claim upon which relief could be granted.
WEAN says that because no duty to docket exists, the County’s decision not to
docket was discretionary and the GMHB was required to dismiss Wright’s
Crossing’s petition. We agree with WEAN.11
WEAN relies on Stafne v. Snohomish County, 174 Wn.2d 24, 271 P.3d
868 (2012), for its contention that the GMHB did not err. In that case, Stafne
submitted a docket proposal to the Snohomish County Council seeking a
redesignation of his property. Id. at 28. The council decided not to place
10
The GMHB and WEAN both suggest that the “may” language at the beginning
of Section 1.5.1.2.3 means that the entire provision is permissive. But Wright’s Crossing
convincingly argues that the “may” language shows that while amendments outside the
period review cycle are generally disfavored, they may occur under the listed
circumstances.
11
The County says that even if any duty to docket exists, the GMA does not
provide a right of action before the GMHB for the County’s decision not to docket.
Because we conclude no such duty exists, we decline to reach this issue.
15
No. 82047-8-I/16
Stafne’s proposal on the final docket. Id. Under LUPA, Stafne appealed the
County’s decision to a trial court rather than appealing to the GMHB. Id. at 29.
The court held that “parties seeking to appeal a jurisdiction’s decision not to
adopt a proposed comprehensive plan amendment must seek review before the
growth board pursuant to the GMA,” rather than before a court under LUPA. Id.
at 40. In so holding, the court noted:
We agree with the board’s determinations in cases like Cole and SR
9/US 2 LLC. County and city councils have legislative discretion in
deciding to amend or not amend their comprehensive plans. Absent
a duty to adopt a comprehensive plan amendment pursuant to the
GMA or other law, neither the board nor a court can grant relief (that
is, order a legislative discretionary act). In other words, any remedy
is not through the judicial branch. Instead, the remedy is to file a
proposal at the County’s next annual docketing cycle or mandatory
review or through the political or election process.
Id. at 38 (emphasis added). And in a footnote, the court explained:
That the growth board lacks “jurisdiction” over decisions not to adopt
proposed amendments is not entirely accurate. Under the GMA, the
board’s jurisdiction is over petitions alleging GMA noncompliance
stemming from either action or inaction of a local government. Thus,
the question is not whether the board has jurisdiction to review claims
such as Stafne’s—it does; the question instead is whether the growth
board has authority to grant relief to parties, like Stafne, where there
has been no showing that the amendment is required by the GMA or
other law.
Id. at 37 n.5.
WEAN says that the GMHB properly dismissed Wright’s Crossing’s
petition because Section 1.5.1.2.3 imposed no duty to docket, and under Stafne,
without such a duty, the GMHB cannot provide relief. We agree.
As determined above, Section 1.5.1.2.3 of the Comprehensive Plan does
not impose a duty to docket Wright’s Crossing’s proposal. Thus, the decision not
16
No. 82047-8-I/17
to docket was discretionary. See id. at 38 (“County and city councils have
legislative discretion in deciding to amend or not amend their comprehensive
plans.”). The GMHB cannot offer relief for a discretionary decision and properly
dismissed the action. See id. (“neither the board nor a court can grant relief (that
is, order a legislative discretionary act)”).
We affirm.
WE CONCUR:
17