Thurston County v. Cooper Point Ass'n

Sanders, J.

(dissenting)

In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development.

RCW 36.70A.110(4) (emphasis added).

Assuming the proposal involves urban governmental services to be extended or expanded in rural areas, the majority reads the term “necessary” to mean extending a sewer line, i.e., extension of a government service, would be permitted only if it were absolutely required, i.e., the only possible means of addressing a particular threat. Not surprisingly this reading dooms the proposed sewer. One can almost always imagine an alternative solution that would not involve expansion or extension of government services if considerations such as cost, other planning goals, and the interests of the community are deemed irrelevant by this court.

The majority claims its conclusion is required under the Growth Management Act (GMA), chapter 36.70A RCW, because the legislature’s intent was to protect the rural character of an area and because its reading is required by the common dictionary definition. Majority at 14-15. But the majority’s analysis is incomplete because it ignores the overall structure of the GMA, and it is wrong because it looks to 1 GMA planning goal while ignoring 12 others, failing to account for the GMA’s clear mandate that cities and counties are to make planning decisions—not the boards (in this case the Western Washington Growth Management Hearings Board).

To properly apply RCW 36.70A. 110(4) we must be guided by legislative intent as expressed in the language of the GMA. Dep’t of Licensing v. Cannon, 147 Wn.2d 41, 57, 50 P.3d 627 (2002); Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991). All of the GMA provisions must be considered in their relation to one another, and, if possible, they must be harmonized to ensure proper construction of each provision. City of Seattle v. Fontanilla, 128 Wn.2d 492, 498, 909 P.2d 1294 (1996).

Although “necessary” may sometimes mean “absolutely required” this is not the only meaning recognized by the law. As Black’s explains: necessary

must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought. . . and its force and meaning must be determined with relation to the particular object sought.

Black’s Law Dictionary 1029 (6th ed. 1990).

The majority’s approach tells cities and counties that extension or expansion of government services into a rural area may never occur unless there is absolutely no other way to protect public health, safety, and the environment. This is not consistent with the GMA. The GMA is structured as a complex melange of planning goals, 13 in all, which must be balanced and harmonized with one another. The balancing and harmonizing is left not to the growth management hearings boards but to cities and counties. RCW 36.70A.3201. By setting preservation of rural areas as an absolute requirement, the majority renders RCW 36.70A. 110(4) inconsistent with the GMA’s harmonizing approach.

The GMA recognizes 13 planning goals which are not ranked in priority, are not meant to be exclusive, and are permitted to be given varying degrees of emphasis by local planners. RCW 36.70A.020; WAC 365-195-070(1). A number of goals would be furthered by installing the four-inch sewer line to replace the existing obsolete treatment facilities before they fail and spill pollution into Puget Sound. Among the planning goals recognized under the GMA, which might easily be served by installation of the new sewer line, would be protecting private property values along the shore, conserving fish and wildlife habitat, and protecting the environment and water quality. See RCW 36.70A.020. Thus, a four-inch sewer line advances various planning goals in the context of addressing a serious threat to public health, safety, and the environment.

Reasonable people could certainly argue over which planning goals should be given priority in any given situation, but the legislature did not choose to prioritize the goals, and clearly there will be times when furthering one goal will conflict with furthering another goal. See Richard L. Settle, Washington’s Growth Management Revolution Goes to Court, 23 Seattle U. L. Rev. 5, 11 (1999). The legislature could have given responsibility for balancing these goals to the growth management hearings boards, but it clearly assigned responsibility for balancing priorities and harmonizing planning goals to the counties and cities:

In recognition of the broad range of discretion that may be exercised by counties and cities consistent with the requirements of this chapter, the legislature intends for the boards to grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter. Local comprehensive plans and development regulations require counties and cities to balance priorities and options for action in full consideration of local circumstances. The legislature finds that while this chapter requires local planning to take place within a framework of state goals and requirements, the ultimate burden and responsibility for planning, harmonizing the planning goals of this chapter, and implementing a county’s or city’s future rests with that community.

RCW 36.70A.3201.

This statement of intent is further fortified by several other provisions of the GMA. Plans, regulations and amendments adopted under the GMA are presumed valid upon adoption. RCW 36.70A.320(1). Decisions must be upheld by the board unless it “determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter.” RCW 36.70A.320(3). When weighing evidence, the board must “apply a more deferential standard of review to actions of counties and cities than the preponderance of the evidence standard provided for under existing law.” RCW 36.70A.3201.

Thus, the GMA informs us that the legislature intended cities and counties to be the primary decision makers, to balance and harmonize the planning goals established under the GMA, and that the growth management hearings boards are to defer to these decisions unless they are clearly erroneous. “Clearly erroneous” means that after reviewing the record as a whole, the court is left with the definite and firm conviction that a mistake has been made. Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). An absolutist meaning for “necessary” is not consistent with these mandates. A reading which more nearly effectuates the structure of the GMA is one which defines “necessary” to denote “convenient, useful, appropriate, suitable, proper, or conducive to the end sought” rather than “absolutely required.” Such a reading gives cities and counties a freer hand to perform their balancing and harmonizing roles under the GMA, allowing them to best judge how to protect the public health, safety, and the environment, while leaving unchanged the board’s role to ensure compliance with the overall goals and requirements of the GMA. The majority’s decision erroneously shifts power from cities and counties to the growth management hearings boards. It handcuffs local governments that attempt to discharge their planning responsibility to manage growth and address the pressing needs of their communities.

I dissent.

Ireland and Bridge, JJ., concur with Sanders, J.