Save Our Scenic Area v. Skamania County ( 2015 )

Fll'E This opinion was flied for record
at )3: QQ tl'~'Yl on-'lco lcUJ fU il, ''l.Dt s
IN CLERICa Ot'PICI "
U'AEME COURT!lN11201T
SUPREME COURT OF' THE STATE OF WASHINGTON
SAVE OUR SCENIC AREA and )
FRIENDS OF THE COLUMBIA ) No. 90398-1
GORGE, )
)
Respondents, )
)
v. ) EnBanc
)
SKAMANIA COUNTY, )
)
Petitioner. )
--·~·--·----~-·-·--·
) Filed JUN 1 1 2015
JOHNSON, J.-This case involves whether the plaintiffs' claims under the
Growth 1Vlanagement Act (GMA), chapter 36.70A RCW, and Planning Enabling
Act ofthe State of Washington (PEA), chapter 36.70 RCW, were properly
dismissed as time barred. 1 The trial court granted the defendant-county's summary
judgment motion on each of the plaintiffs' claims, but the Court of Appeals
reversed on the Gl\riA and PEA claims, reasoning that a genuine issue of fact
1
The plaintiffs also brought a State Environmental Policy Act (SEPA) claim under
chapter 43.21C RCW, which the trial court also dismissed on summary judgment. The Court of
Appeals affirmed the dismissal of that claim, and the respondents in this case did not seek
revww.
~S'ave Our Scenic Area, et al. v. Skamania County, No. 90398-1
' '
remairied as to ( 1) whether Skamania County actually completed periodic review
on August 2, 2005, which Skamania County argues triggered the clock for the
GMA claim, and (2) the date on which the inconsistency, if any, arose between the
unmapped classification and the conservancy designation, which would have
triggered the clock for the PEA claim. The Court of Appeals remanded for further
factual proceedings to address the time bar issue.
We agree with the Court of Appeals in part, holding that both claims were
timely because (1) inaction generally does not trigger the GMA 60-day appeal
period and (2) in tl7is case, no actionable inconsistency existed between the 1986
ordinance and the "2007 Comprehensive Plan" (2007 Plan) until August 2012.
Because further factual development is unnecessary to address the time bar issue,
we affirm the Court of Appeals' reversal of the trial court and remand the case to
the trial court for further proceedings consistent with this opinion.
FACTS
Skm~ania County is a rural, heavily forested county located in the
s<;mthwestern region_ofWashington State. Roughly 90 percent of the county is
publically owned federal or state park forest area, with only about three percent of
the county open for private development. Because the county is sparsely populated
and developed, the county is statutorily considered 1 of 10 "Counties Planning for
Critical Areas and Natural Resource Lands," or "CARL" counties, in Washington
2
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
State. Clerk's Papers (CP) at 28. These "CARL" counties are sometimes referred
to as "p3;rtial planning counties," and they are obligated only to designate critical
areas and natural resource lands. RCW 36.70A.l70; Resp'ts' Suppl. Br. at 3 n.4.
' '
CARL counties are not under the same obligation to fully plan and zone their lands
like "full planning" counties. See ch. 36.70A RCW.
In 1986, Skamania County (County) adopted a zoning ordinance, codified at
Title 21 Skamania County Code (SCC), which applied an "unmapped"
classificatimi to all those areas without formal designation. SCC 21.64.010. The
ordinance provided, "In the areas classified as unmapped (UNM) all uses which
have not been declared a nuisance by statute, resolution, ordinance, or court of
jurisdiction are allowable." sec 21.64.020.
In 1993, the CountY_ adopted zoning classifications and development
regulations,. codified at Title 22 SCC, to bring certain federal lands in compliance
with the federal Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544.
The ordinance applied exclusively to lands located within the Columbia River
GorgeNational Sc.enic Area. For several years thereafter, much of the County
remained "unmapped."
On August 2, 2005, the County adopted Resolution 2005-35 (Resolution),
whi,cb the County passed in order to comply with its GMA obligation to designate
natural resource lands underRCW 36.70A.170. The Resolution declared, "[T]he
3
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
designation of forest and agricultural lands within the [Columbia River Gorge]
National Scenic Area and the development regulations adopted under SCC Title 22
meets the requirements of the Growth Management Act (RCW 36.70A) for the
conservation of forest, agricultural, and mineral resource lands." CP at 34. The
respondents do not dispute that adopting the Resolution satisfied the County's
obligation under the GMA to designate its natural resource lands. Br. of Appellants
at 19 n.24. However, the County concedes that this Resolution did not meet its
obligation to designate critical areas. 2
On July 10, 2007, the County revised its original1977 comprehensive plan
and designated m.uch ofth~ County's private forest area "Conservancy." The plan
' . .
provided, "The Conservancy land use area is intended to provide for the
conservation and management of existing natural resources in order to achieve a
sustained yield C?fthese resources, and to conserve wildlife resources and habitats."
2
The GMA initially required that the County complete designation of its natural resource
lands and critical areas on or before September 1, 1991, followed by periodic review to ensure
compliance with the GMA. R.CW 36.70A.l70(1), .130(1)(b). The legislature extended the
deadline three times, resulting in the latest deadline to complete the periodic review on
December 1, 2008. RCW 36.70A.130(6)(b); CP at 165. The County conceded before the trial
court that it failed to meet its obligation to designate critical areas by the deadline, and
accordingly, the superior court granted summary judgment in favor of the plaintiffs, ordering the
county to complete GMA critical areas designation by December 1, 2013. On appeal, the
respondents challenge only the County's failure to conduct periodic review of its ordinances by
the same
. deadline.
..
See Br. of Appellants. at 19 n.24.
4
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
CP at 213. As a result, some areas in Skamania County carry both an unmapped
zoning classification and a conservancy land designation.
:. ' '·· , .
That same day, the County enacted an ordinance imposing a six-month
buildii1g moratorium applicable to approximately 15,000 acres of unmapped
privatG.land withinthe unincorporated portion of the County. According to the
ordinance, the purpose of the moratorium was "to maintain the status quo of the
area pending the County's consideration of developing zoning classifications for
the c.m~as c(wered l;y i:he newly adopted 2007 Plan and completing the Critical
Areas Update Process." CP at 258. The County intended that the moratorium
remain in effect "until the zoning classifications related to the 2007
Comprehensive Plan and the Critical Areas Update Process [were] complete." CP
at 258. The County renewed this moratorium every six months for five years, each
time reiterating th<:~t the County was still in the process of designating lands
consistent with the 2007 Plan.
On August 21, 2012, the County renewed the moratorium for another six-
month period but substantially modified its scope, reducing the moratorium to an
approximately 4,500-acre region known as the High Lakes. Like each preceding
moratorium,_the ordinance stated that the County was in the process of updating
the zoning classifications consistent with the 2007 Plan.
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Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
Soon after portions of the. moratorium were repealed, the County approved
plans for th~ construction of a large industrial wind turbine farm, known as the
Whistling Ridge Energy Project, to be built on the High Lakes site. In a separate
suit .the two respondents in this case, Friends of the Columbia Gorge and Save Our
9
Scenic Area (collectively SOSA), challenged the project's approval on the grounds
that it was inconsistent with the 2007 Plan's conservancy land designation. But the
2007 Plan's "Conservancy" designation does not impose enforceable restrictions
on land use; restrictions are achieved only by zoning. The area is still classified as
"unmapped" lands under the 1986 ordinance, and, thus, this court held that the
industrial development was permissible because wind farms had not yet been
declared a nuisance. Friends of Columbia Gorge, Inc. v. State Energy Facility Site
Evaluation Council, 178 Wn.2d 320, 345, 310 P.3d 780 (2013).
' '
PROCEDURAL HISTORY
The case before us involves the suit SOSA brought against the County in
superior court, filed on September 11, 2012. SOSA sought declaratory and
injunctive relief to stop the construction of the wind farms, alleging (among other
claims not at issue here) that the County ( 1) violated the GMA, RCW
36.70A.l30(l)(b), by failing to complete periodic review of its natural resource
I ' •' ' '
lands ordinance and (2) violated the PEA, RCW 36.70.545, by failing to ensure
consistency between its 1986 zoning ordinance and its 2007 Plan. The County
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Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
successfully moved for summary judgment, arguing that the GMA and PEA claims
were barred as untimely. The judge's order provided:
2. GMA Natural Res_ources. With respect to the County's
GMA Natural Resource Designation and Update requirements, the
County addressed these GMA requirements in 2005, through
Resolution 2005-35 .. It is now 2012. GMA contains a 60-day appeal
period, and land use decisions are to be reviewed expeditiously. With
. seven years having past [sic], it is now too late for an appeal to be
filed.
3. UI}_zoned Lands/Comprehensive Plan Consistency. The
County adopted the regulations applicable to Unzoned lands 27 years
ago, and updated its Comprehensive Plan to address and provide for
the designati6rt of lands as Unzoned, in 2007. Washington policy is to
review decisions affecting use of land expeditiously. The usual appeal
period for land use decisions is 21-30 days. IfGMA's analogous
· ·appeal period is used, an appeal must be filed within 60-days. Either
way, the appeal period has past [sic].
CP at 414-15 (footnote omitted).
' .
In an unpublished opinion,.the Court of Appeals reversed the trial court on
these two issues. With respect to the GMA claim, the court held that the County's
flndings of facts contained within the moratorium ordinances-indicating that the
County was in the process of updating its forest land designations-revealed a
' .
genuine issue of fact as to whether the County actually completed periodic review
on August 2, 2005, or whether that review process continued during the
moratorium periods. Save Our Scenic Area v. Skamania County, noted at 180 Wn.
App.
. .'
1017 (Z014).
. .
With respect
.
to the PEA claim, the Court of Appeals held that
because the moratorium prohibited building on the unmapped lands, a genuine
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Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
issue existed as to when any actionable inconsistency between the unmapped areas
and the 2007 Plan arose. Vve granted review. Save Our Scenic Area v. Skamania
County) 181 Wn.2d 1007, 335 P.3d 941 (2014).
ANALYSIS
Standard ofReview
·we review the propriety of summary judgment rulings de novo, viewing the
facts in the light most favorable to the nonmoving party. Summary judgment is
pi·oper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. DePhillips v. Zolt Constr. Co., 136 Wn.2d
26, 959 P.2d ~ 104 (1998) ..
It should also be noted, "[F]rom the beginning the GMA was "'riddled with
politically necessary omissions, internal inconsistencies, and vague language."'
Thurston Cf?unty v. vV Wash. Growth Mgmt. Hr'gs Bd., 164 Wn.2d 329,342, 190
P.3d 38 (2008).(qu~)ting Quadrant Cmp. v. Cent. Puget Sound Growth Mgmt.
lir 'gs Bd.: 154 Wn2d 224, ~32, 110 P.3d 1132 (2005) (quoting Richard L. Settle,
T1'ashington's Growth Management Revolution Goes to Court, 23 SEATTLE U. L.
REV. 5, 8 (1999))). Given the GMA's contentious beginnings, we have held that
the GJ\!IA~s terms are not to be liberally construed. Woods v. Kittitas County, 162
Wn.2d 59_7, 612, 174.P.3d 25 (2007).
8
Save Our ScenicArea, et al. v. Skamania County, No. 90398-1
GMA Claim
SOSA's clainiunder the GMA arises out ofRCW 36.70A.l30(1)(b), which
provides in relevant part:
. .
· Except as otherwise provided, a county or city not planning under
RCW 36.70A.040[3J shall take action to review and, if needed, revise
its policies and development regulations regarding critical areas and
natural resource lands adopted according to this chapter to ensure
these policies and regulations comply with the requirements of this
chapter according to the deadlines in subsections (4) and (5) of this
section.
·When the Resolution was adopted on August 2, 2005, the deadline for the
County's first periodic review for natural resource lands designations was
December 1, 2005. RC\V 36.70A.130(4)(b); CP at 5. The legislature subsequently
extended the deadline to December 1, 2008. RCW 36.70A.l30(6)(b); CP at 165.
SOSA argues that the County failed in its mandated obligation to complete review
by the 2008 deadline, and it brought this suit to compel compliance. 4
"The consistent policy in this state is to review [land use] decisions ...
exp<:~ditiously so that lega.l uncertainties can be promptly resolved." City of Federal
---------~·-;-----. --- .
RCW 36.70A.040 applies to the revi~w and update requirements for full planning
3
counties, not CARL counties.
4
Save Our Scenic Area, but not Friends of the Columbia Gorge, brought a similar claim
in 20.08, alleging the· Coimty' s failure to conduct periodic review by its 2008 deadline. But that
complaint was dismissed without prejudice for lack of prosecution. In their briefing, SOSA
explains that it "accepted at face value" the finding$ contained in the moratorium ordinances that
the County was still in the process of completing the updates and decided not to prosecute the
suit. Resp'ts' Suppl. Br. at 9 n.l8.
9
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
Way v. King County, 62 Wn. App. 530, 538, 815 P.2d 790 (1991). Full planning
counties are to file a petition with the Growth Management Hearings Board
(GMHB) within 60 days of the land use decision at issue. RCW 36.70A.290(2). 5
Challenges to CARL counties' land use decisions under the GMA are filed in
superiot court. Moore V; Whitman County, 143 Wn.2d 96, 104, 18 P.3d 566 (2001).
In order to determine whether the appeal period lapsed on either claim, we must
t first determine when each claim was triggered.
· The County argues that the Resolution triggered.SOSA's GMA claim
because the Resolution satisfied the County's obligation to conduct periodic
review and if SOSA disagreed, they had 60 days to appeal that decision. In
petitioning this court, the County argues that the Court of Appeals erroneously
construed the moratoria as "tolling" the appeal period.
The Court of Appeals' conclusion is problematic. As the County correctly
points out, moratoria do not suspend appeal periods. As noted by the dissent in
Bigger.s v. City of Bainbridge Island, 162 Wn.2d 683, 709, 169 P.3d 14 (2007)
(Fairhurst, J., dissenting), "Because a moratorium is only a temporary suspension
of established regulations, it does not repeal, amend, or contradict them." We agree
5
After the 60-day window has expired,.challengers can challenge only the consistency of
site-specific rezones under the LEmd Use Petition Act, chapter 36.70C RCW, and those
challenges are heard by superior courts. Woods, 162 Wn.2d at 616.
10
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
that a moratori11m generally .does not prevent a land use decision from being final
and appealable and that the appeal period begins when the land use decision is
made. The County asserts that the appealable decision was made on August 2,
2005, when it adopted the Resolution and that SOSA had 60 days to bring action
challenging that decision.
However, the County's characterization of the Resolution as "periodic
;review" considerably strains the plain meaning of the term and the effect of the
Resolution. The Resolution merely designated certain resource lands, pursuant to
th~ County's obligation under RCW 36.70A.170, and declared that the Resolution
itself.r·rneets the requirements of the Growth Management Act (RCW 36.70A) for
the conservation of forest, agricultural, and mineral resource lands." CP at 34. The
Resolution does not purport to satisfy the RCW 36.70A.130(1)(b) obligation, nor
does it even contain the word "review.'' The trial court erred in concluding that the
Resolt~tion had anything to do with periodic updates of those same critical areas or
that it triggered SOSA s .GMA claim .
j
. The Court of Appeals arrived at a similar conclusion in Thurston County v.
Western Washington Growth Management Hearing Board, 137 Wn. App. 781,
79T-98, 154 P.3d 959 (2007), affd in part and rev'd in part on other grounds, 164
Wn.2d 329, when it heldthat a 2003 Thurston County resolution was not part of its
periodic update. The court concluded that the resolution merely declared that its
11
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
provisions brougt~t it in compliance with the GMA, "but [the resolution] did not
refer to RCV/36.70A.l30, did not make a finding that it was an 'update' within the
meaning of the statute, and did not state the reasons it did not revise the
agricultural lands designation criteria." Thurston County, 137 Wn. App. at 797 .
.'
Here, we similarly conclude that the language contained in the Resolution indicates
that its enactment does not constitute any part of the periodic review process.
SOSA's action against the County is more properly characterized as a
(·'failure to·act" claim, which is riot necessarily subject fo the same 60-day appeal
period. Although. the GMA provides a 60-day appeal period for land use decisions,
thy
..'
statute does not provide' any
' ' .
appeal period for claims that arise out of a CARL
' . .
·. county's failure to act. Therefore, we must determine which appeal period should
apply. Typically, when a statute does not provide a limitation period, courts may
apply an analogous appeal period from other sources of law and when there is
more .than one analogous
. . .
appeal period,
.
the longest period is applied. See Yoshio
Akaday. Park 12·-01 Cm7J., 1.03 Wn.2d 717, 695 P.2d 994 (1985).
In this case, the most appropriate analogous appeal period is the period
applicable to full planning counties when they bring similar actions before the
GMHB. Applying the same rule to actions brought by partial planning counties in
superior court, "[a] petition relating to the failure of a state agency, city or county
to t.ake an action by a deadline specified in the Growth Management Act or the
1.2
Save (Jur Scenic Area, et al. v. Skamania County, No. 90398-1
Shoreline ~1anagement Act may be brought at any time after the deadline for
action haspassed." WAC 242-03-220(5) (emphasis added). In other words, there is
no time bar to challe~ge a county's failure to meet a GMA deadline. Based on this,
SOS.A's.failure to act claim under the GMA is therefore timely. 6
Pl!.-:A Claim
The PEA provides for the implementation and enforcement of land use
:;~ development and regulation. Its provisions often overlap with and integrate
pdrtions'ofthe GMA. Relevant to this case, the PEA requires, "Beginning July 1,
1992, ,the development regulations of each county that does not plan under RCW
36.70A.040 shall not be inconsistent with the county's comprehensive plan. For
. the .purposes
.' . . .
of this
.
section, . 'development regulations' has the same meaning as set
.
. fort.h in RCW 36.70A.030Pl" RCW 36.70.545. The PEA does not provide for a
6 Perhaps realizing that SOSA is correct in characterizing its GMA claim as a "failure to
acf' claim, the County argues in its supplemental briefing that the respondents should be barred
from maldngthis argument because it is ' 1an ad hoc argument newly raised on appeal." Suppl.
Br. ofPet'r at 16 (formatting omitted). The County suggests that SOSA never characterized their
claiirr as a "failure to act" claim before the trial court, either in its written response to summary
judgment or during oral argument. Suppl. Br. ofPet'r at 17.
. The. County's assertion contradicts the record. The record reveals that SOSA explicitly
at
argued the motion hearing, "The statute of limitations apply [sic] to actions taken, not to
inaction .. And that's what this case is about, is-·-is inaction." Verbatim Report of Proceedings at
18. In its col:nplaint; SOSA alleged that "Skamania County has not completed review ... in
violation ofRG\V 36.70A.l30(1)(b), 36.70A.130(4), and 36.70A.130(6)." CP at 12. This is not a
newly raised argument. ' .
7
Thi.s provision of the GMA provides:
"(7) 'Development regulations' or 'regulation' means the controls placed on development
or ``nd use activities by a county or city, including, but not limited to, zoning ordinances, critical
13
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
specific remedy for aninconsistency violation, but like other land use violations,
the remedy in this case would be ~ court order to update the ordinances consistent
with the 2007 Plan ..
Unlike its GMA claim, SOSA's PEA claim cannot fairly be characterized as
a "failure to a~t'' clai111. The· County made a zoning decision in 1986 to designate
the area as ''unmapped" and made another decision in 2007 to classify lands as
1 "conservancy." Any inconsistency between the 1986 ordinance classification and
the 2007 Plah.'s conservancy designation existed on July 10, 2007, when the 2007
Plan
. '
was adopted.
.
On its face, the
.
1986 ordinance is a "development regulation,"
which is arguably inconsistent with the conservancy designation contained in the
2007 Plan. The County argues that SOSA had 60 days from July 10, 2007 to
challenge th~t inconsistency and that their 2012 claim is therefore time barred.
However, only final decisions are appealable, and the unique facts presented
in this case all point to the conclusion that the "unmapped" areas were not a final,
appealable regulation until 2012. The County unequivocally stated that it needed
time to update the unmapped, "free-for-all" areas to attune them with the newly
area ordinances, shoreline master programs, official controls, planned unit development
ordinances, subdivision ordinances, and binding site plan ordinances together with any
amendments thereto. A development regulation does not include a decision to approve a project
permit application, as defined in RCW 36.70B.020, even though the decision may be expressed
in a resolution or ordinance ofthe legislative body of the county or city."
14
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
adopted 2007'Plan's conservancy designations. Every six months, the County
enacted ordinances that suspended building "until the zoning classifications related
to the 2007 Comprehensive Plan and the Critical Areas Update Process [were]
complete." CP at 258. The County ·enacted moratoria in order to maintain the status
quo until a final determination could be made. To be clear, we do not hold that the
moratoria themselves rendered the 1986 ordinances "temporary"; as we have
~reviously said, moratoria do not suspend appeal periods or enacted laws. But in
this case, the County declared the "unmapped" areas temporary until the update
process could be completed, hence the need for a moratorium to maintain the status
quo. Therefore, there was no final county action to appeal during this period.
Now the County claims that SOSA should have nevertheless filed suit
. . .
e~rlier, demanding an update to these areas while the County was in the midst of
making those very same updates. The problem with this argument is that had
SOSA brought the claim in 2007, the County could have successfully argued that
the "unmapped" zones were only placeholders while the County completed the
update process and that no i~consistency existed until those zones were adopted as
final development regulations. The only remedy available had the suit been
brought. in 2007
'
would have been a court order to update the ordinances-the very
process that the County declared nume~ous times that it was already undertaking.
15
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
This lack of appropriate remedy is probative of the fact that this claim was not
justiciable until the County decided the "unmapped" classifications were final.
Second, the PEA's provision involving the disposition of"unmapped areas"
suggests that these classifications are not typically envisioned as permanent
fixtures. The statute provides:
After the adoption of the first map provided for in RCW 36.70.740,
and pending the time that all property within a county can be precisely
~l, zoned through the medium of a zoning map, all properties not so
precisely zqned by map shall be given a classification affording said
· pi·operties such broad protective controls as may be deemed
appropriate and necessary to serve public and private interests.
RCVt36.70.780.
By its nature, an "unmapped" classification serves as a placeholder, rather
than permanent designation. Unlike full planning counties, the County is not
obligated to set forth zoning classifications by ordinance, and unlike those
counties, it retains the prerogative to leave these areas permanently "unmapped."
Although it retains that prerogative, the County reiterated by way of its moratorium
ordinances that it intended to update those areas so that they would no longer
remain "unmapped." From 2007 to 2012, these areas effectively lacked any
classification, and there was nothing for SOSA to challenge until the County made
its final decision.
16
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
Because there was no final "development regulation" to challenge until
August 2012, when the County indicated that it had either completed zoning or
\:vas abandoning efforts to update the zones in certain areas, an appealable
inconsistency did not exist until that 2012 date. SOSA's September 2012 PEA
claim is therefore timely.
CONCLUSION
,~' SOSA's Gl\r1A claim for failure to conduct periodic review is not subject to
the 60-day appeal period because GIVIA claims are triggered by activity, not
inactivity. Failure to act claims may be brought any time after the statutory
deadline, and, therefore, the GMA claim is timely. SOSA's PEA claim is also
tirne.ly because no actionable inconsistency existed until August 2012, when the
County
·. ... effectivelv
' . ·. "'·
.
made .the "unmapped" classification a permanent status by
indicating that the ?rdinances were no longer temporary. For the above reasons, we
''t
17
Save Our Scenic Area, et al. v. Skamania County, No. 90398-1
affirm the Court of Appeals only in its reversal of the trial court and remand the
case to the trial court for further proceedings consistent with this opinion.
WE CONCUR:
I
18
Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
No. 90398-1
GORDON McCLOUD, J. (dissenting)-! agree with the majority that the
respondents' Growth Management Act (GMA), chapter 36.70A RCW, action is
properly characterized as a "failure to act" claim and that such claims may be
brought any time after the failure occurs. Majority at 12-13. I therefore concur in
the majority's resolution of the first issue, permitting respondents to pursue their
GMA claim against Skamania County (County).
But I disagree with the majority's resolution of the second issue, permitting
the respondents to pursue their claim under the Planning Enabling Act of the State
of Washington (PEA), chapter 36.70 RCW. The majority holds that the County's
"2007 Comprehensive Plan" (Plan) was not a "final decision" triggering any limited
1
Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
period for appea1. 1 In doing so, the majority necessarily holds that the development
moratoria the County enacted between 2007 and 2012 tolled the appeal period
applicable to the PEA claim. Because this directly conflicts with our precedent
holding that development moratoria do not suspend appeal periods, 2 I respectfully
dissent.
The respondents in this appeal, Save Our Scenic Area and Friends of the
Columbia Gorge (collectively SOSA), allege a violation ofRCW 36.70.545. As the
majority correctly observes, a violation of this statute arises where a county's
development regulations are inconsistent with its comprehensive plan-and the
1
It is not clear what appeal period applies to a PEA claim. As the trial court noted
in its ruling in this case, land use decisions are typically subject to a 21-day or 30-day
appeal period. Clerk's Papers (CP) at 415 & n.4 (citing ch. 36.70C RCW (the Land Use
Petition Act) and ch. 34.05 RCW (the Administrative Procedure Act)). The County asserts
that a PEA claim triggers a 60-day time limit. Pet'r's Resp. to Amici Curiae Brs. Of
Futurewise et al. at 2 & n.4. But the statute it cites for this assertion applies to "petitions
relating to whether or not an adopted comprehensive plan ... is in compliance with the
goals and requirements of the [GMA] or chapter 90.58 or 43.12 RCW"-it doesn't address
claims that a county has violated a requirement of the PEA. RCW 36.70A.290(2). In any
event, we need not decide this question now. Even if we applied the 60-day period
available under the GMA, that period has long passed.
2
Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 706, 169 P.3d 14 (2007)
(Chambers, J., concurring in result) ("I agree with Justice Fairhurst that municipalities can
place moratoria on shoreline substantial development permits without conflict with the
SMA [Shoreline Management Act of 1971, chapter 90.58 RCW]."); id. at 709 (Fairhurst,
J., dissenting) ("[T]he city's suspension of development while it revised its shoreline
master program (SMP) and obtained additional scientific information did not conflict with
... the priorities . . . set out in the SMA. Because a moratorium is only a temporary
suspension of established regulations, it does not repeal, amend, or contradict them.");
majority at 10 ("moratoria do not suspend appeal periods").
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Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
remedy for such a violation would be a court order to fix the inconsistency. Majority
.at 13-14. Thus, a violation ofRCW 36.70.545 becomes actionable-and the period
for appeal begins to run-when an alleged inconsistency arises.
In this case, the majority concludes that an actionable inconsistency first arose
when the County lifted the development moratorium formerly applicable to several
thousand acres of "'unmapped"' land, some of which was designated as
"conservancy" land in the County's Plan. Majority at 14-15. It explains that the
1986 ordinance designating certain areas as "'unmapped"' is a "'development
regulation,' which is arguably inconsistent with the conservancy designation in the
Plan." Majority at 14. Of course, this arguable inconsistency existed in 2007, when
the County first adopted the Plan. The majority acknowledges this but holds that the
development moratoria enacted between 2007 and 2012 rendered the 1986 ordinance
temporary and therefore not subject to appeal. Majority at 15. In other words, it
holds that the development moratoria tolled the statute of limitations applicable to
SOSA's PEA claim.
The majority attempts to avoid this result by limiting its holding to "the unique
facts presented in this case." Majority at 15. It purports not to hold that "the
moratoria themselves rendered the 1986 ordinances 'temporary"' but instead to hold
only that the moratoria were necessary "to maintain the status quo" while the County
3
Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
updated its already temporary zoning classifications. Majority at 15 (emphasis
added).
I respectfully disagree. The majority's reasoning provides no basis on which
to distinguish this case from any other in which a municipality adopts a development
moratorium so that it can update existing regulations. See Biggers v. City of
Bainbridge Island, 162 Wn.2d 683, 707, 169 P.3d 14 (2007) (Fairhurst, J.,
dissenting) ("Land use scholars and courts recognize that moratoria are valid tools
for local government to forestall filing of permit applications when amending land
use regulations."). And it forces municipalities to choose between finality (protected
by statutes of limitations) and careful planning (aided by development moratoria).
In this case, the County is correct that SOSA could have brought its PEA claim
in 2007, when the County first adopted the Plan. Indeed, Save Our Scenic Area (but
not Friends of the Columbia Gorge) brought the exact same claim in 2008, but it was
dismissed without prejudice for want of prosecution. Clerk's Papers (CP) at 381. In
its 2008lawsuit, Save Our Scenic Area alleged that "[t]he Unmapped Classification
is inconsistent with the Conservancy designation of the comprehensive plan because
it allows within the Conservancy area any use not declared to be a nuisance and
prohibits the application of any terms of the Skamania county zoning to any such
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Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
uses." CP at 376. In its present lawsuit, SOSA repeats this claim verbatim, but then
adds this paragraph:
7.6. Skamania County's failure to zone the Unmapped lands and
the County's failure to protect these lands and their resources from
incompatible uses (other than the series of moratorium ordinances that
Skamania County has now repealed for the majority of the Unmapped
lands) have resulted in development regulations that are inconsistent
with the Conservancy designation of the Comprehensive Plan and that
violate the consistency requirement ofRCW 36.70.545.
CP at 15 (emphasis added). But it does not identify any development regulations
that it believes are inconsistent with the Plan.
SOSA speculates that had it brought its PEA claim in 2007, "the County
would undoubtedly have argued that because ... the moratorium 'maintain[ed] the
status quo' on the affected lands until the County could complete its work and take
final action, SOSA's claims were not yet ripe." Resp'ts' Suppl. Br. at 9-10 (second
alteration in original) (citation omitted). The majority accepts this speculation,
holding that there would have been no "appropriate remedy," in 2007, for the alleged
inconsistency at issue here: "[t]he only remedy available had the suit been brought
in 2007 would have been a court order to update the ordinances-the very process
that the County declared numerous times that it was already undertaking." Majority
at 16.
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Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
Again, I respectfully disagree. We can't assume that the County would have
argued, in 2007, that the development moratorium rendered the PEA challenge
unnpe. Had SOSA brought a timely PEA claim, the County might well have
argued-as it does in this court-that the "[u]nmapped" zoning designation was
entirely consistent with the Plan. Suppl. Br. of Pet'r at 7 & n.20. Indeed, the Plan
explicitly identifies the "[u]nmapped" areas as consistent with the Plan's
"Conservancy" designation. CP at 211 (boldface omitted). Had SOSA brought its
claim in 2007, we might now have a court order recognizing this consistency and
.
precluding SOSA's current PEA claim. Or we might have an order granting or
denying relief for a different reason. The point is that this matter could have been
resolved in 2007, when the County first adopted the Plan.
To be sure, if the County adopts new development regulations that are
inconsistent with the Plan, or if it amends the Plan in a manner that renders it
inconsistent with existing development regulations, any party may timely appeal that
action. But the County has not done this. The alleged inconsistency at issue in this
case has existed since 2007 and could have been challenged at that time. The
majority's speculation that the development moratoria prevented SOSA from
bringing an action in 2007 is neither supported by the record nor consistent with our
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Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
precedent. Because I believe that the majority's holding conflicts with the rule that
development moratoria do not suspend appeal periods, I respectfully dissent.
7
Save Our Scenic Area et al. v. Skamania County, No. 90398-1
(Gordon McCloud, J., dissenting)
8