Association of Rural Residents v. Kitsap County

Talmadge, J.

(dissenting) — I dissent because the majority so obviously errs in its characterization of the effects of interim urban growth areas (IUGAs) under the Growth Management Act (GMA). The majority frustrates legislative policy designed to prevent urban sprawl in an Evergreen State fast losing its green spaces to development.

The GMA became effective on July 1, 1990. As a county with more than 50,000 people, Kitsap County was required to enact a comprehensive plan under the GMA. Laws op 1990, 1st Ex. Sess., ch. 17, § 4(1). The GMA initially required counties to adopt such a comprehensive land use plan consistent with the Act’s requirements by July 1,1993. Id. § 4(2), (3); RCW 36.70A.040(1). The Legislature’s first two stated goals for the GMA were to encourage development in urban areas and reduce sprawl, by which it meant “the inappropriate conversion of undeveloped land into sprawling, low-density development.” Id. § 2(1), (2); RCW 36.70A.020(1), (2). See City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wn.2d 38, 57, 959 P.2d 1091 (1998).

To achieve these goals, the GMA required planning counties to designate urban growth areas, as that term is defined in the Act. RCW 36.70A.110(1). The idea was to confine urban growth to these areas and not allow it to overrun surrounding undeveloped areas. The GMA specifically forbids urban growth outside the urban growth areas, stating counties must designate such areas in their comprehensive plans “within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature.” Id.

When jurisdictions began having difficulty completing their comprehensive planning process by July 1, 1993, the Legislature extended the deadline by one year to July 1, 1994. Laws of 1993, 1st Spec. Sess., ch. 6, § 1(3). But in order to preserve undeveloped land from urban sprawl during the extension period the Legislature gave jurisdictions only until October 1, 1993 to designate IUGAs. Id. § 2(4). Kitsap County missed the statutory deadline and identified its IUGA on October 4, 1993. This case concerns Kitsap County’s IUGA.

The crucial concern in this case — one the majority does not treat — is the effect of IUGA on development. The developers argue an IUGA is not a “development regulation” as that term is defined in the GMA. RCW 36.70A.030. Rather, their argument goes, a county must enact further, more specific ordinances to implement the IUGA, and the IUGA is therefore ineffective in and of itself to prevent growth outside its boundaries. The glaring flaw in this argument, however, is that the GMA itself describes an IUGA as a development regulation. RCW 36.70A.110(5). Aside from definitional niceties, there can be no question an interim urban growth boundary was to have the same controlling, regulatory effect as the permanent urban growth boundary, i.e., to prevent urban growth in rural areas.

The majority leaps over the legal effect of the Kitsap County IUGA to focus on the central factual question here: what land use regulations were in effect when the developers applied for their planned unit development permit? Majority op. at 191. The majority correctly details the essential chronology:

October 4, 1993 Kitsap County identifies IUGA

June 3, 1994 Growth Management Hearings Board (GMHB) determines IUGA is not in compliance with GMA, and remands to County for revision, ordering compliance by October 3, 1994.

October 3, 1994 County ignores GMHB order and does not bring IUGA into compliance.

December 15, 1994 Developers submit Planned Unit Development (PUD) application.

December 29, 1994 Kitsap County amends IUGA.

Quite obviously, unless something made it disappear, the IUGA was in effect on December 15, 1994, even though it was not fully in compliance with the GMA. Nevertheless, the majority concludes: “Because Kitsap County did not modify the IUGA until December 29, 1994, when it adopted a comprehensive plan pursuant to the GMA, the IUGA was not in effect at the time Partners submitted the completed application.” Majority op. at 192.

But where did the IUGA go? The majority does not tell us. Certainly there is nothing in the record to indicate Kitsap County rescinded its IUGA before December 15. Moreover, although the GMHB ruled the IUGA was not in compliance with the GMA, the GMHB did not have the authority in 1994 to declare the IUGA invalid. At that time, all a GMHB could do was find the regulation not in compliance and remand it to the issuing agency with an order to bring the regulation into compliance. RCW 36.70A.300(3)(b). The Legislature did not give the GMHBs power to invalidate development regulations until 1997. Laws of 1997, ch. 429, § 16; RCW 36.70A.302. See Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 560-62, 958 P.2d 962 (1998). Thus, neither the GMHB nor Kitsap County rescinded the IUGA in 1994. Therefore, though imperfect, the Kitsap County IUGA had the force of law when the developers applied for their permit on December 15, 1994. Despite that, the majority simply declares the IUGA expired without suggesting a single legal or logical reason why it did so.⁵

At its core, the majority’s position makes no sense in light of the history and purpose of the GMA and is diametrically opposed to the intent of the people of Washington. The Legislature intended IUGAs to prevent urban sprawl during the planning grace period the 1993 Legislature conferred on counties. The plain effect of the majority opinion is to permit urban sprawl and reward county recalcitrance in complying with the terms of the GMA. Clearly, the majority decision is result-oriented. In light of the clear purpose and history of the GMA and IUGAs, and the majority’s refusal to give effect to the law, the majority would do better to issue a two-sentence per curiam opinion that says: “We don’t like the Growth Management Act. The developers win.”

The developers’ PUD application for 106 single family lots on 123 acres constituted urban development outside Kitsap County’s designated interim urban growth area. The planned PUD is therefore in violation of the GMA. I would affirm the Court of Appeals.

Motions for reconsideration denied November 1, 2000.

5 In fact, the majority illustrates the utter illogic of its conclusion by saying Kitsap County modified the IUGA on December 29,1994. If the IUGA did not exist on December 15, 1994, when the developers applied for their permit, there was plainly nothing to modify on December 29.