Skagit Surveyors & Engineers, LLC v. Friends of Skagit County

Talmadge, J.

(dissenting) — Skagit County (the County) willfully violated the mandate of Washington’s Growth Management Act (GMA) by allowing urban-density growth outside its Urban Growth Areas (UGAs). The Western Washington Growth Management Hearings Board (Board) invalidated those parts of the County’s zoning ordinance that allowed the unlawful urban sprawl, but we now overturn the Board’s action because the Board lacked the authority to invalidate such an ordinance. Our decision means that Skagit County may defy the mandate of GMA, thwarting the will of the Legislature.

First, it is not clear the County’s zoning ordinance at issue pre-dated the GMA. Second, the power to invalidate noncomplying pre-GMA zoning regulations is present in GMA and would be a necessary aspect of the Board’s *569enforcement power under GMA if it were not. Moreover, the Legislature has acquiesced in such authority over the years. Because I do not believe the majority’s interpretation of the Board’s authority is faithful to the GMA, I respectfully dissent.

A. The Growth Management Act

In RCW 36.70A.020, the Legislature established 13 growth management goals to guide the development of comprehensive plans to be adopted by municipalities to meet the general mandate of the GMA. The 13 goals included an effort to confine urban growth to designated UGAs in order to reduce undesirable urban sprawl into rural areas.

To enforce the GMA, the Legislature in 1991 created three Growth Management Hearings Boards, one for Eastern Washington, one for Western Washington and one for the Central Puget Sound Basin. RCW 36.70A.250; Laws of 1991, 1st Sp. Sess., ch. 32, § 5. The Boards initially were given authority to hear and determine petitions alleging comprehensive plans were not in compliance with the GMA. Laws of 1991, 1st Sp. Sess., ch. 32, § 9(1). If, after a hearing, the Board determined a planning jurisdiction was not in compliance with the requirements of the GMA, it could recommend the Governor impose economic sanctions. Id. at § 14. In 1995, the Legislature gave the Boards additional authority to invalidate municipal plans or regulations that substantially interfere with fulfillment of the GMA’s goals. Former RCW 36.70A.300; Laws of 1995, ch. 347, § 110. The Board’s authority to invalidate the County’s ordinances is the central issue of this case.

B. The GMA in Skagit County

The County’s record of GMA compliance is less than exemplary. The County adopted its zoning regulations in 1979 as part of the Skagit County Code. The GMA became effective on July 1, 1990. As a county with more than 50,000 people, Skagit County was required to plan under the GMA. *570Laws of 1990,1st Ex. Sess., ch. 17, § 4(1). The GMA initially required counties to adopt a comprehensive land use plan consistent with its requirements by July 1, 1993. Id. at § 4(2), (3). The first two of the Legislature’s stated goals for the GMA were the encouragement of development in urban areas and the reduction of sprawl, by which it meant “the inappropriate conversion of undeveloped land into sprawling, low-density development.” Id. at § 2(1), (2).

To achieve these goals, the GMA required the County to designate urban growth areas, as that term is defined in the Act. Id. at § 11(1). The idea was to confine urban growth to these areas and not allow it to overrun surrounding undeveloped areas:

For two reasons the GMA rejects the sprawling development patterns that have proliferated since World War II. First, by-minimizing the area devoted to development, land with environmentally critical qualities and commercially valuable natural resources can be protected and preserved. Second, by concentrating development in contiguous areas, public facilities may be provided more efficiently and with less environmental harm.

Richard L. Settle & Charles G. Gavigan, The Growth Management Revolution in Washington: Past, Present, and Future, 16 U. Puget Sound L. Rev. 867, 872-73 (1993) (footnotes omitted) (concentration of growth to urban areas the “central and most controversial policy of the GMA”).

When it appeared jurisdictions were 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 Sp. Sess., ch. 6, § 1(3). In order to preserve undeveloped land from urban sprawl during the extension period, however, the Legislature gave jurisdictions only until October 1,1993 to designate interim UGAs. Id. at § 2(4).

The County responded to this new statutory mandate expeditiously. On June 29, 1993, ahead of the deadline, it *571enacted an ordinance to check “undesirable sprawling, low-density growth patterns.” Ordinance 14925 at 3.15 The ordinance amended four paragraphs of the Skagit County Code dealing with Multi-Family Residential, Residential, Residential Reserve, and Rural Intermediate housing and required 5 acre minimum lot sizes per dwelling unit, a decidedly rural density. The old ordinances allowed for dense, urban development. The duration of Ordinance 14925 was set at slightly under five months (148 days), or until such time as the land use designation element of the comprehensive plan were to be adopted, whichever came first.

The record is silent about what happened when the 148 days had passed. Apparently, however, the County took some action to perpetuate Ordinance 14925 because the next reference to the ordinance in the record is another Skagit County ordinance, Ordinance 15372, dated May 24, 1994, which recites that Ordinance 14925 was to expire on May 25, 1994. The County declared in this new ordinance that its findings supporting Ordinance 14925 were still valid, and readopted them. Ordinance 15372 perpetuated Ordinance 14925 until such time “as the comprehensive land use element is adopted and implemented.” Thus, the County’s ordinance containing the new anti-sprawl provisions (amending the old code to limit development to one dwelling unit per 5 acres in rural areas) purportedly became of indefinite duration.

By now nearly four years had passed since the GMA first went into effect on July 1, 1990, but the County still had not adopted a comprehensive plan under the GMA. Six more months passed, and Ordinance 14925 expired by operation of law. Although Ordinance 15372 purported to keep 14925 in effect until adoption of the comprehensive plan, RCW 36.70A.390 provides a six-month sunset provision for interim zoning ordinances. A county may renew an interim ordinance indefinitely, but only after holding a pub-*572lie hearing for each renewal. The County took no action to renew its interim zoning ordinance, and it expired on November 23, 1994, six months after the enactment of Ordinance 15372. In fact, not only did the County take no action to renew its interim zoning controls, it passed an ordinance on December 26, 1994, specifically rescinding both Ordinance 14925 and Ordinance 15372. Ordinance 16007.

Expiration of those two ordinances operated to reenact the original wording of the zoning regulations Ordinance 14925 had amended. The County thus turned back the clock to 1979 on regulation of residential development in its rural areas. Gone was the one-dwelling-unit-per-5-acre limitation.16 Residential development could now proceed outside the UGAs in Skagit County just as if GMA, which by this time had been on the books for four and a half years, did not exist.

By reenacting its previous ordinances and allowing urban residential densities in areas of Skagit County outside the urban growth boundaries, the County was in open defiance of the dictates of the GMA. We have previously indicated our disapproval of public bodies that flout the law. In R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 411, 780 P.2d 838 (1989) (quoted with approval in Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 10, 829 P.2d 765 (1992)), we said in a situation where the City had disregarded a trial court injunction, “The courts need not tolerate this intentional violation of a valid judgment that prohibited the City from enforcing those provisions.” In another case, we denounced a city’s “reprehensible misuse of government power” when city officials refused to allow a landowner to build apartments even though the landowner had complied with all the necessary requirements. Alger v. City of Mukilteo, 107 Wn.2d 541, 548, 730 P.2d 1333 (1987).

*573A citizen group and two individuals moved the Board to declare the reenacted regulations invalid (as well as the entire Skagit County zoning code) because the regulations did not preclude urban growth outside the interim UGAs. The Board adopted an order of noncompliance only after the hearing on October 31, 1995, where the County argued the Board had no authority to invalidate pre-GMA regulations. The County response to the October 31, 1995 order was partial compliance, but it allowed its ordinance regarding limitations on rural development to expire, opening up thousands of acres of rural Skagit County to development in violation of GMA. The County indicated it would further comply with the requirements of GMA “in due time.” The Board adopted its subsequent order of invalidity in response to the County’s failure to address the order of noncompliance.17

C. The Board’s Statutory Invalidation Authority

In 1995, the Legislature amended the GMA to add an invalidation provision to the Board’s enforcement authority: *574Laws of 1995, ch. 347, § 110(2).18 With this invalidation authority in hand, the Board rejected the County’s argument that the Board could not invalidate pre-GMA ordinances. It found those ordinances permitted 44,000 rural acres in Skagit County to be developed with nonrural densities. It found those ordinances would allow “uncoordinated and unplanned development . . . outside Interim Urban Growth Areas” and discourage “development in municipal urban growth areas where adequate public facilities and services exist or can be provided in an efficient manner.” Clerk’s Papers at 31. As a result of those findings and others, the Board concluded as a matter of law the reenacted sections of the Skagit County code “substantially interfere with the' fulfillment of several sections of the GMA,” and invalidated them pursuant to the authority granted in RCW 36.70A.300(2). Clerk’s Papers at 32.19

*573(2) A finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand, unless the board’s final order also:
(a) Includes a determination, supported by findings of fact and conclusions of law, that the continued validity of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter; and
(b) Specifies the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.

*574The County and the majority state the single dispositive issue in this case is whether the Board exceeded its statutory authority when it invalidated portions of the County’s zoning code first enacted in 1979. The majority resolves the dispositive issue by observing a “pre-GMA” ordinance could never be challenged under RCW 36.70A.290(2), because the 60-day limitation for challenging development regulations promulgated under the GMA could never be met in the case of an ordinance that preexisted enactment of the GMA. Majority at 559. Both the County and the majority assume without discussion the ordinances at issue *575here are “pre-GMA” ordinances. They also assume without discussion that “pre-GMA” ordinances are not subject to invalidation by the Board. Neither of these assumptions holds.

1. Pre-GMA Development Regulations

The Legislature employed a generic term—“development regulations”—in RCW 36.70A.030(7) in defining the authority of the Board with respect to zoning ordinances adopted to implement comprehensive plans satisfying GMA requirements. RCW 36.70A.030(7) defines “development regulations” as follows:

(7) “Development regulations” or “regulation” means the controls placed bn development or land use activities by a county or city, including, but not limited to, zoning ordinances, critical areas 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 of the legislative body of the county or city.

Plainly, the Legislature did not narrowly confine development regulations to those adopted only after enactment of the GMA, but rather defined development regulations without temporal limitation. There is no language in the statute separating “pre-GMA” regulations from “post-GMA” regulations. The majority creates an artificial dichotomy by assuming a “pre-GMA” regulation can never be subject to challenge because the time period for challenging “development regulations,” as defined by the GMA, is limited to 60 days after their enactment. The majority’s rule does not allow for a circumstance like the present case, where a jurisdiction, either by default or positive action, enacts a development regulation under the rubric of the GMA that happens to mirror a preexisting regulation. The Legislature, however, apparently foresaw and reacted to just such a possibility.

*576In the 1995 amendments to the GMA, the Legislature added the following provision:

If the ordinance that adopts a plan or development regulation under this chapter includes a savings clause intended to revive prior policies or regulations in the event the new plan or regulations are determined to be invalid, the board shall determine under subsection (2) of this section whether the prior policies or regulations are valid during the period of remand.

Laws of 1995, ch. 347, § 110(4) (codified at RCW 36.70A.302(4) (1997)). The Legislature here has spoken unequivocally that there is nothing special about “pre-GMA” regulations—that such regulations have no unique protection from Board invalidation if they substantially interfere with the goals of the GMA. The Legislature enacted RCW 36.70A.302 in 1997, a year of great ferment in growth management legislation, but kept the wording of subsection (4) intact. Laws of 1997, ch. 429, § 16(4).20

In characterizing the revived zoning code as “pre-GMA,” the majority overlooks that these regulations were in fact the County’s response to the GMA mandate to control development outside the UGAs. The County at first amended its zoning code to require rural density (1 dwelling unit/5 acres) for residential development in the rural areas of the county. These new amendments were in effect, and replaced certain provisions of the 1979 zoning code, from June 29,1993, the date the County enacted Ordinance 14925, until November 23, 1994, the day the County permitted the ordinance to lapse by operation of law.

Plainly, while there are procedural differences, there are no substantive differences between allowing superseded provisions of a code to spring back into existence by lapse of an amending ordinance, or simply drafting those superseded provisions anew and enacting them. While it is *577the former that occurred on November 24, 1994, the day after Ordinance 14925 lapsed, the substantive effect is just as if these were newly enacted provisions. Thus, to call them “pre-GMA” and thereby insulate them from invalidation ignores the actual procedural course of how they arose in late 1995. These were new ordinances that came into existence in 1995, subsequent to and in response to the enactment of the GMA.

2. Necessary Authority of Boards

The authority of Boards to address actions such as those of the County here is essential to the enforcement of GMA principles. The cardinal rule of statutory construction requires this Court to give effect to the intent of the Legislature. Timberline Air Service, Inc. v. Bell HelicopterTextron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994). Here, the County, by reenacting portions of its 1979 code, openly defied the GMA mandate to establish interim development regulations that would prevent urban sprawl into rural areas. The Legislature gave the Board authority to invalidate such development regulations that “substantially interfere with the fulfillment of the goals” of the GMA. That is what the Board did.

Where zoning regulations are adopted or used to frustrate GMA goals, as the County did in this case, the Board has authority to take administrative steps to enforce compliance with GMA. For the majority to rule otherwise is to condone defiance of state law. A county that simply did not like the GMA could, the day after this opinion is filed, repeal all ordinances enacted in compliance with the Act and reenact its former comprehensive plans and development regulations. These reenacted regulations, according to the majority, would be “pre-GMA” regulations, and Boards would therefore be deprived of the authority the Legislature conferred to invalidate them to enforce the GMA. An interpretation that leads to a rule of law so contrary to the central purpose of a statute cannot be right.

3. Legislative Acquiescence

A final rationale for the Board’s authority to address pre*578GMA development regulations is legislative acquiescence. There is strong evidence the Legislature acquiesced in the Board’s interpretation of its statutory enforcement power. The Legislature created a Land Use Study Commission to review all aspects of GMA. The question of this Board’s interpretation of GMA was specifically raised to the Commission, but the Commission did not recommend an amendment be offered to GMA. Although aware of the Board’s order in this case and the Commissioners’ decision not to address this issue, the Legislature in its 1996 and 1997 sessions did not change the law. Legislative acquiescence in the interpretation of an act by the administrative body entrusted with its enforcement is strong evidence that the Board’s interpretation of GMA is consistent with legislative intent. Manor v. Nestle Food Co., 131 Wn.2d 439, 446 n.2, 932 N.2d 628 (1997).

D. Constitutional Issues

The County and Skagit Surveyors raise a bevy of constitutional issues. Because of the majority’s disposition, it did not reach any of them. Because my resolution is to the contrary, it is necessary to address the constitutional issues.

1. Vesting

Both the County and Skagit Surveyors fist loss of vesting rights as the chief infirmity to the constitutionality of the GMA’s invalidation provision. The County claims invalidation of a county’s land use regulations denies property owners the “constitutional right to know what rules . . . will govern their land development.” Corrected Br. of Skagit County at 17. Skagit Surveyors asserts “landowners are entitled to a date certain on which they can determine the regulations controlling their application.” Br. of Skagit Surveyors at 17.

Both cite RCW 36.70A.300(3)(b) as the offending statute. The subsection they cite is to the 1995 version of the GMA. Neither the County nor Skagit Surveyors has acknowledged the Legislature amended the subsection in 1997. The sue*579cessor statutes, RCW 36.70A.302(2) and (3)(a), adequately resolve the vesting concerns the parties have expressed over the 1995 version of the statute. The 1997 amendments have mooted the vesting arguments.21

2. Interference with the County’s Police Power

The County argues the Board violated Wash. Const, art. XI, § 11 by issuing the order invalidating some County ordinances. The argument is wholly without merit, and borders on being frivolous.

Article XI, § 11, which the County fails to quote in its brief, says simply: “Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” In its considered judgment, and in furtherance of its legislatively delegated authority, the Board found and concluded the County’s interim zoning ordinances were “in conflict with general laws,” i.e., the GMA itself. As the Legislature empowered it to do, the Board therefore invalidated those ordinances. This was not in violation of art. XI, § 11 or any other provision of the state or federal constitutions.

The state constitution consigns legislative authority in Washington to the Legislature. Wash. Const, art. II, § 1. Like most states, Washington delegates its zoning authority to local jurisdictions, but exceptions exist, such as in our sister state, Oregon. 1 Robert M. Anderson, American Law of Zoning 3d 30-36 (1986). The Planning Enabling Act, *580RCW 36.70, is the statutory delegation of zoning authority. Thus, local zoning control in Washington is a matter of legislative grace, not constitutional fiat. Because the Legislature may enact or repeal any zoning ordinances whatsoever for the County should it choose to do so, it may certainly invalidate, through an administrative agency, any Skagit County ordinances in conflict with the general laws of Washington.

3. Taking

Skagit Surveyors and the County argue the finding of invalidity is a total taking of property without just compensation because it denies owners of undeveloped land within the invalidated zones all economic use of their property. Br. of Skagit County at 56; Br. of Skagit Surveyors at 26. They assert the Board should pay an unspecified amount of compensation for this total taking. They do not assert any of their property was taken; thus, they have no standing to assert a claim for just compensation. Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 172-73, 570 P.2d 428, 97 A.L.R.3d 482 (1977). Absent standing, we are without subject matter jurisdiction to entertain the taking claim.

4. Arbitrary and Capricious

Skagit Surveyors and the County assert the Finding of Invalidity leaves the County without the necessary zoning ordinances in place to control development, and that such a consequence is so monstrous and absurd as to constitute an arbitrary and capricious decision. Skagit Surveyors and the County overlook the obvious: sound public policy required the County to enact conforming development regulations as soon as possible after the Finding of Invalidity, rather than leaving Skagit County landowners in the lurch as to how their land might be developed. The Board noted the County could request a hearing to lift the invalidity declaration “at any time.” Clerk’s Papers at 27. Like the jailed contemnor whose purging of the contempt is the key to the jailhouse door, the County’s prompt enactment of conforming development regulations would have relieved the situation it now complains of. Swift compliance was *581evidently not in the County’s contemplation, however. It was not until July 14, 1997, 523 days after entry of the February 7, 1996 Finding of Invalidity, that the County finally met all the Board’s requirements, and the Board entered its Order Rescinding Invalidity.

In summary, the constitutional objections Skagit Surveyors and the County raise Eire without merit.

CONCLUSION

The majority here interprets the powers of Growth Management Hearings Boards under GMA in a fashion contrary to a common sense enforcement authority for the Board and the statute’s legislative history. More troublesome yet is the fact that the majority has rewarded the County for its deliberate recalcitrance and defiance of state law. The County opened up 44,000 acres of rural lands in Skagit County to development contrary to the GMA. How CEin we square our commitment to the rule of law with the majority’s decision condoning the behavior of a lawbreaker?

The County asserts it seeks only focused and limited relief. All it wants us to do is declare that the County may promulgate development regulations that are entirely out of compliance with the goals of the GMA, without fear of invalidation by the Board, simply because those regulations existed before the GMA. While such relief might indeed be focused and limited, it makes the GMA a nullity in Skagit County and in every other GMA planning jurisdiction in the State. Quite literally, the County’s response to the GMA mandate to limit urban sprawl was to put in place an ordinance that allowed 26 dwelling units per 5 acres on land outside the urban growth boundaries. The County justifies this defiance of the GMA by claiming the Board had no authority to invalidate the ordinance. The majority’s support for the County’s argument is based on an erroneous, hypertechnical reading of the GMA.

I would give effect to the intent of the GMA Eind not allow local jurisdictions to evade its mandates by giving immunity to ordinances in effect subsequent to the enact*582ment of the GMA, simply because those ordinances first came into being before the GMA. The GMA does not define or give special immunity to “pre-GMA” ordinances. Nor should this Court.22

Durham, C.J., concurs with Talmadge, J.

BThe ordinance appears in the record as an exhibit to a pleading without consecutive numbering like the other clerk’s papers.

Under the revived code for a multifamily residential district, for instance, the minimum lot size allowable for a single family dwelling on a public sewer is 8,400 square feet. An acre is 43,560 square feet. Five acres are 217,800 square feet. Thus, the revived zoning code would permit approximately 26 dwelling units (217,800 divided by 8,400) on 5 acres, compared to the one dwelling unit the interim development regulation permitted.

The County does not allege that the Board lacked authority from the Legislature to enforce GMA. The County simply defied the order of a legitimately constituted state agency.

After the 1997 amendments to the GMA, this section now reads:

(1) A board may determine that part or all of a comprehensive plan or development regulations are invalid if the board:

(a) Makes a finding of noncompliance and issues an order of remand under RCW 36.70A.300;

(b) Includes in the final order a determination, supported by findings of fact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with the fulfillment of the goals of this chapter!.]

RCW 36.70A.302G).

The Board also invalidated six other sections of the County’s zoning code that were not subject to the amendments enacted by Ordinance 14925.

Chapter 429 of the Laws of 1997, entitled Growth Management—Modifications, contains 52 sections comprising additions and amendments to existing legislation in both the Growth Management Act and related chapters. The Governor vetoed 12 of the 52 sections of the measure.

RCW 36.70A.302(2) and (3)(a) read, respectively:

(2) A determination of invalidity is prospective in effect and does not extinguish rights that vested under state or local law before receipt of the board’s order by the city or county. The determination of invalidity does not apply to a completed development permit application for a project that vested under state or local law before receipt of the board’s order by the county or city or to related construction permits for that project.

(3) (a) Except as otherwise provided in subsection (2) of this section and (b) of this subsection, a development permit application not vested under state or local law before receipt of the board’s order by the county or ciiy vests to the local ordinance or resolution that is determined by the board not to substantially interfere with the fulfillment of the goals of this chapter.

The majority opinion holds that failure to comply with service requirements results in a failure of subject matter jurisdiction. Majority at 556. I believe this statement betrays a flawed understanding, and reaffirm my adherence to Chief Justice Durham’s scholarly concurrence in Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wn.2d 769, 947 P.2d 732 (1997).