Moore v. Whitman County

Sanders, J.

The plain and unambiguous language of RCW 36.70A.250 limits the jurisdiction of the Eastern Washington Growth Management Hearings Board (Board) to counties located east of the Cascade Mountains “that are required to or choose to plan under RCW 36.70A.040.” Whitman County is neither required nor has chosen to plan under the Growth Management Act (GMA). Therefore the determinative question in this appeal is whether the Board has jurisdiction over Whitman County, not whether Whitman County complied with the GMA. Finding the Board lacked jurisdiction to enter the order which is the subject of this appeal, we reverse and dismiss.

This jurisdictional question was squarely presented after we accepted direct review on certification from the Court of Appeals, Division Two, of the Thurston County Superior Court order favoring respondents Victor and Roberta Moore. The Moores had administratively appealed the Board’s holding, seeking a superior court determination that Whitman County’s critical areas ordinance did not comply with RCW 36.70A.060(2) and .170(1)(d) of the GMA. Because the Moores substantially prevailed in Superior Court, Whitman County then appealed to the Court of Appeals, Division Two. That court certified the appeal to us inviting our direct review.

The GMA does not require Whitman County to adopt a comprehensive land use1 plan or development regulations that are consistent with and implement the comprehensive plan because, under RCW 36.70A.040, Whitman County, like other similarly situated counties,2 does not have a population of 50,000 or more and has not experienced an increase in its population by more than 10 percent in the 10 years prior to May 16, 1995; nor has it experienced an increase in its population by more than 17 percent in the 10 years prior to May 16, 1995; nor, regardless of population, has it experienced an increase in its population by more than 20 percent in the previous 10 years; nor has the Board of County Commissioners, as the county legislative authority, passed a resolution exercising the option of operating under the GMA.3

It is not disputed that, with the exception of the cities of Pullman and Colfax, between 95 and 98 percent of the land in Whitman County is devoted to agricultural purposes and 98 to 99 percent of the unincorporated county is zoned for agriculture.4 Nor is it disputed that the near exclusive application of the land to agricultural purposes in the County is not reasonably likely to change in the future.5

Jurisdiction of the Growth Management Hearings Boards

“[A]n agency may only do that which it is authorized to do by the Legislature.” Rettkowski v. Dep’t of Ecology, 122 Wn.2d 219, 226, 858 P.2d 232 (1993). RCW 36.70A.250 plainly limits the jurisdiction of these boards only to counties which “plan.” It provides:

Growth management hearings boards. (1) There are hereby created three growth management hearings boards for the state of Washington. The boards shall be established as follows:

(a) An Eastern Washington board with jurisdictional boundaries including all counties that are required to or choose to plan under RCW 36.70A.040 and are located east of the crest of the Cascade mountains;

(b) A Central Puget Sound board with jurisdictional boundaries including King, Pierce, Snohomish, and Kitsap counties; and

(c) A Western Washington board with jurisdictional boundaries including all counties that are required or choose to plan under RCW 36.70A.040 and are located west of the crest of the Cascade mountains and are not included in the Central Puget Sound board jurisdictional boundaries. Skamania county, should it be required or choose to plan under RCW 36.70A.040, may elect to be included within the jurisdictional boundaries of either the Western or Eastern board.

(2) Each board shall only hear matters pertaining to the cities and counties located within its jurisdictional boundaries.

RCW 36.70A.250 (emphasis added). Thus, the jurisdiction of the Eastern and Western boards is limited to those counties “that are required or choose to plan under RCW 36.70A.040.” Whitman County isn’t and doesn’t.

RCW 36.70A.040 identifies which counties must conform to the extensive requirements of the GMA. RCW 36.70A.040(1) requires a county to adopt a comprehensive land use plan and development regulations implementing such plan if the county (1) has a population of 50,000 or more and has experienced a recent population increase of more than 10 or 17 percent or (2) regardless of population, has experienced a recent population increase of more than 20 percent. RCW 36.70A.040(2) permits a county that does not meet the criteria established in subsection (1) to adopt a resolution opting into the elaborate requirements of the GMA. Whitman County does not have a population of 50,000 or more nor has it experienced the substantial and rapid growth described in RCW 36.70A.040(1). Nor has Whitman County passed a resolution opting into the GMA. Accordingly, as Whitman County is not required to and has not chosen to plan pursuant to RCW 36.70A.040, it does not meet the detailed requirements of RCW 36.70A.250 and does not fit within the jurisdictional boundaries of the Board.

If we apply RCW 36.70A.250 as written—without “construing” it—this court can come to no other conclusion but that the Legislature intended to limit the jurisdiction of the boards to those counties which plan. A comparison of each subsection of RCW 36.70A.250(1) demonstrates this plain intent as well.

The Board is vested by statute with “jurisdictional boundaries including all counties that are required to or choose to plan under RCW 36.70A.040 and are located east of the crest of the Cascade mountains.” RCW 36.70A.250(1)(a). The statute thus expresses the Legislature’s clear intent to grant the Board jurisdiction over counties that both (1) have experienced substantial and rapid population growth or who have voluntarily opted into the GMA and (2) are located east of the crest of the Cascade Mountains. Had the Legislature intended to simply divide the state on a geographical basis it would have omitted the language referencing counties “required to or choos[ing] to plan under RCW 36.70A.040.”6 RCW 36.70A.250(1)(a). As the actual language used by the Legislature is clear and unambiguous it requires no judicial “interpretation.”

Other sections of the same statute require this result as well.

The description of the Central Puget Sound Hearings Board notably does not include such limiting language but instead provides the Central board shall have “jurisdictional boundaries including King, Pierce, Snohomish, and Kitsap counties.” RCW 36.70A.250(1)(b). This language is also plain and unambiguous and means what it says—the Central board has jurisdiction over King, Pierce, Snohomish, and Kitsap counties—without regard to any other limiting criterion.

In contrast, the jurisdictional boundaries of the Western Washington Hearings Board are described as

including all counties that are required or choose to plan under RCW 36.70A.040 and are located west of the crest of the Cascade mountains and are not included in the Central Puget Sound board jurisdictional boundaries. Skamania county, should it be required or choose to plan under RCW 36.70A.040, may elect to be included within the jurisdictional boundaries of either the Western or Eastern board.

RCW 36.70A.250(1)(c). Like that of the Eastern board, the Legislature vested the Western board with jurisdiction over counties that both (1) have experienced substantial and rapid population growth or who have voluntarily opted into the QMAand (2) are located west of the crest of the Cascade Mountains. This is also demonstrated by the statutory reference to the jurisdiction of the Western board over Skamania County, allowing Skamania County an election between the Western and Eastern boards—should it be required or choose to plan under RCW 36.70A.040. This plain language directs the jurisdictional boundaries of neither board to include Skamania County—unless and until the county experiences substantial and rapid population growth or voluntarily opts into the GMA.7 If the Board had jurisdiction over Whitman County, however, Skamania County would be included within a growth management hearings board (GMHB) jurisdiction without regard to whether it experienced rapid growth or opted in. Such interpretation is facially inconsistent with the express language of the statute.

In fact, even the Washington State Attorney General, the author of an amicus brief generally supporting Moores’ position, recognizes the GMA has limited application.

This legislation [the GMA] was intended to govern certain counties and cities in planning urban growth.

The GMA requires some government entities [footnote 1] to formulate and enact comprehensive land use plans and development regulations.

1992 Op. Att’y Gen. No. 23, at 2-3 (1992 WL 512203) (emphasis added). Therein, moreover, footnote 1 explains “those cities and counties either required to plan or choosing to plan, under RCW 36.70A.040, and thus subject to the requirements of the GMA, will be referred to in this opinion as ‘government entities’.” (Emphasis added.) It makes sense, of course, that if a county is not experiencing any growth such county need not be managed under the Growth Management Act. And if a county is not subject to the requirements of the GMA, it need not fall within the jurisdiction of any particular GMHB.

Respondents rely heavily upon RCW 36.70A.280 and the enforcement provisions of the GMA to support their claim RCW 36.70A.250 merely divides all Washington counties and cities for geographical purposes.

There are two alternatives to board review contained within the GMA itself. First, the Department of Community, Trade, and Economic Development is statutorily required to provide mediation services for a variety of issues, including mediation to avoid the imposition of sanctions—all without resort to a GMHB. See RCW 43.330.120; 36.70A.110(2), .190, .210. The GMA also allows the superior court to directly review a petition for review filed under the GMA, thus bypassing the Board entirely. See RCW 36.70A.295.

More fundamentally the courts themselves serve as the traditional, if not preferred, forum to resolve legal disputes. The Land Use Petition Act governs all land use decisions not subject to review under the GMA, relying on the judicial system for resolution of such questions. See RCW 36.70C.030; see also Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 178, 4 P.3d 123 (2000) (“If a GMHB does not have jurisdiction to consider a petition, it must be filed in superior court under [Land Use Protection Act].”). Accordingly, there are several possible alternatives beyond the GMHBs to ensure compliance with the GMA.

We recently noted:

The GMA was a legislative compromise, and how it is carried out and enforced is a reflection of this compromise. [The] GMA was spawned by controversy, not consensus. . . .

“Both installments of the Act were riddled with politically necessary omissions, internal inconsistencies, and vague language ----”

Ass’n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 188, 4 P.3d 115 (2000) (quoting Richard L. Settle, Washington’s Growth Management Revolution Goes to Court, 23 Seattle U. L. Rev. 5, 8 (1999)). It is not the function of this court to rewrite RCW 36.70A.250.

As the Legislature did not grant the Board jurisdiction over Whitman County, we reverse the order and dismiss the proceeding.

Alexander, C.J., Smith, Johnson, Madsen, Ireland, and Bridge, JJ., and Guy, J. Pro Tern., concur.

1 The GMA distinguishes between the phrase “[a]dopt a comprehensive land use plan,” under RCW 36.70A.030G), and the definition of a “comprehensive plan,” or “plan” under RCW 36.70A.030(4). According to RCW 36.70A.030(1), “[a]dopt a comprehensive land use plan” means “to enact a new comprehensive land use plan or to update an existing comprehensive land use plan.” Under subsection (4), a “[c]omprehensive land use plan,” “comprehensive plan,” or “plan” means “a generalized coordinated land use policy statement of the governing body of a county or city that is adopted pursuant to this chapter.”

2 “Other similarly situated counties” refers to the 10 counties not subject to the full comprehensive planning requirements of the GMA. The remaining 29 counties (and the cities within them) are required to comply with the GMA’s full comprehensive planning requirements because the counties either were required to do so under RCW 36.70A.040(1) or opted to do so under subsection (2). See Amicus Br. of the State of Washington, Department of Community, Trade and Economic Development at 6.

3 RCW 36.70A.040(1), (2); see Clerk’s Papers at 162 [Br. of Resp’t (Appellant Whitman County), Thurston County Superior Court dated June 19, 1998, at 1]; see Br. of Appellant, Supreme Court, dated Sept. 1, 1999, at 14.

4 Clerk’s Papers at 162-63 [Br. of Resp’t (Appellant Whitman County), Thurston County Superior Court dated June 19, 1998, at 1-2].

5 Id. Appellant states that since Whitman County’s zoning codes and regulations are very restrictive in nature, it is unlikely the County will rezone lands designated as agricultural.

6 This portion of the statute would then read: “An Eastern Washington board with jurisdictional boundaries including all counties that are located east of the crest of the Cascade mountains.”

7 RCW 36.70A.040(5) provides, “If the office of financial management certifies that the population of a county that previously had not been required to plan under subsection (1) or (2) of this section has changed sufficiently to meet either of the sets of criteria specified under subsection (1) of this section,” then the county must adopt a comprehensive land use plan and development regulations implementing such plan.