FILED, COURT OF APPEALS, STATE OF DIV I WASHINGTON 2018NAR 12 AN 8:38
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON HERITAGE BAPTIST CHURCH,a ) Washington nonprofit organization ) No. 75375-4-1 ) Appellant, ) DIVISION ONE ) V. ) PUBLISHED OPINION ) CENTRAL PUGET SOUND GROWTH ) MANAGEMENT HEARINGS BOARD, ) an agency of the State of Washington; ) BRANDI BLAIR, MATTHEW BLAIR, ) BREET BLAIR, JAMES BLAIR, ) LOWELL ANDERSON, DOUGLAS ) HAMAR, and CHAD MCCAMMON; and) THE CITY OF MONROE,a political ) subdivision of the State of Washington, ) ) Respondents. ) FILED: March 12, 2018
TRICKEY, J. — Heritage Baptist Church (Heritage) sought to rezone its property in the city of Monroe (City). The City enacted ordinances in 2013 enabling
the rezone. In 2014, the Central Puget Sound Growth Management Hearings
Board (the Board) issued an order of invalidity (2014 order) and remanded the
ordinances to the City. In 2015, Heritage and the City published a supplemental
environmental impact statement (SEIS) and the City adopted new ordinances for
the rezone. In 2016, the Board issued an order finding continuing noncompliance
(2016 order). Heritage directly appeals the Board's 2016 order. Finding no error,
we affirm. No. 75375-4-I /2
FACTS
The Property
Heritage owns approximately 43 acres of undeveloped land (the Property)
split into five parcels near the City's eastern boundary. The Property is located
within the Skykomish River drainage basin and floodplain, and is bordered by State
Route 2 to the south and a steep hillside to the north. The Property regularly
floods, and can experience up to 8 feet of flooding during a 100-year flood event.
The City's regulations and Federal Emergency Management Agency(FEMA)1999
Flood Insurance Rate Maps(FIRMs)adopted by the City state that the Property is
in a 500-year floodplain. Preliminary 2007 FIRMs place the Property within a 100-
year floodplain, although the City and FEMA have not adopted these maps.
The Skykomish River valley is bordered by several ridges. The Property is
located primarily on the valley floor and extends up an adjacent slope between 60
and 250 feet. The northern portion of the Property and adjoining properties are
classified by the United States Department of Agriculture as severe erosion hazard
areas. A geological report noted several recent landslides and evidence of slope
failure under a home and its associated property at the top of the northwest section
of the slope.
An oxbow slough designated as a Type 1 stream runs through the Property
and connects to the Skykomish River. The slough is designated as an urban
conservancy, and supports listed threatened and endangered species of fish.
The Property contains category two and category three wetlands, which are
critical areas protected under the Monroe Municipal Code (MMC). The Property
2 No. 75375-4-1 /3
also contains a native growth protection area (NGPA). The NGPA and the City's
critical area regulations limit the presently developable area of the Property to
approximately 11.3 acres.
The Property is currently zoned as limited open space (LOS). LOS zoning
allows "at a minimum level of development, one dwelling unit per five acres," with
commercial or more intensive uses only allowed as conditional uses.
In July 2010, Heritage and East Monroe Economic Development Group,
LLC submitted an application to amend the City's comprehensive plan and rezone
the Property from LOS to general commercial (GC). GC zoning would allow for
more intensive development, with the final environmental impact statement(FEIS)
proposing "a mixture of commercial development, including retail and restaurant
development."1 In 2012, the City issued a final phased environmental impact
statement(FPEIS)and adopted Ordinance 018/2012 to amend its comprehensive
plan to rezone the Property.
Lowell Anderson, a resident of the City, challenged the FPEIS and
Ordinance 018/2012 before the Monroe Hearing Examiner. The hearing examiner
concluded that the FPEIS was inadequate as a matter of law.2 The Monroe City
Council repealed Ordinance 018/2012 and re-docketed the Property for
comprehensive plan review in 2013. Anderson's challenges to the FPEIS and
ordinance were dismissed as moot.
1 Clerk's Papers(CP) at 3687. 2 CP at 450-51 (The Board took official notice of the hearing examiner's decision in the 2012 FPEIS appeal.). 3 No. 75375-4-1 /4
Heritage hired PACE Engineering, Inc. to perform environmental impact
analyses to support the rezone. In September 2013, the City, as lead agency
under the State Environmental Policy Act(SEPA), chapter 43.21C RCW,issued a
FEIS for the rezone. The FEIS offered three alternative development plans to
Heritage's proposed reclassification: (1) an LOS alternative, including a fitness
facility, daycare, and church;(2) a GC alternative, including retail and restaurants;
and (3) a mixed use commercial, including professional offices, a medical center,
and residential development.
Anderson again challenged the FEIS before the City's hearing examiner,
arguing that the FEIS did not adequately consider and analyze the Property's
present use or the environmental impacts of the reclassification. The hearing
examiner upheld the adequacy of the FEIS.
In December 2013, the Monroe City Council adopted Ordinance 022/2013
to amend the comprehensive plan and Ordinance 024/2013 to reclassify the
Property from LOS to GC(together, 2013 ordinances). Brandi Blair, Matthew Blair,
Brett Blair, James Blair, Anderson, Douglas Hamar, and Chad McCammon
challenged the 2013 ordinances before the Board in several petitions for review.
The petitions were consolidated before the Board.3
In August 2014, the Board issued its final decision and order.4 The 2014
order found that the FEIS was inadequate under SEPA because it did not properly
inform decision-makers of the impacts of the rezone. The Board concluded that
3 Blair v. City of Monroe, No. 14-3-0006c, 2014 WL 1218356(Wash. Growth Mgmt. Hr'gs Bd. Mar. 10, 2014). 4 In September 2014, the Board issued a nunc pro tunc order correcting scrivener's errors in the final decision and order. 4 No. 75375-4-1/ 5
the continuing validity of the 2013 ordinances would interfere with the Growth
Management Act's (GMA), chapter 36.70A RCW, goal of protecting the
environment. The Board remanded the 2013 ordinances to the City and entered
a determination of invalidity.
The City did not appeal the Board's 2014 order. Heritage intervened as a
compliance participant to assist the City with complying with the Board's 2014
order. In August 2015, the City, Heritage, and PACE issued a draft SEIS. The
draft SEIS incorporated the 2013 FEIS by reference and included appendices with
expert reports examining the conditions of the Property's wetlands and habitats,
the impacts of fill and compensatory flood storage, and the Property's topography
and landslide hazards.
In September 2015, PACE presented the draft SEIS to the Monroe Planning
Commission. The planning commission voted six to one against recommending
that the City move forward with the reclassification.
In October 2015, PACE and the City's SEPA official presented the draft
SEIS to the Monroe City Council. On November 2, 2015, the City released the
final SEIS. On November 24, 2015,the Monroe City Council voted four to three to
adopt Ordinances 015/2015 and 016/2015 (2015 ordinances), which allowed the
rezone.
The Board held a compliance hearing and, in April 2016, issued an order
finding continuing noncompliance (2016 order). The Board found that the SEIS
used a true no-action development alternative. But it also found that the SEIS
failed to provide an impartial assessment or sufficient discussion of the probable
5 No. 75375-4-1/6
environmental consequences of the reclassification, properly analyze the
foreseeable adverse environmental impacts on the entire Property, and provide a
reasonably thorough analysis of significant aspects of the possible environmental
consequences. The Board concluded that the 2015 ordinances would
substantially interfere with GMA's goal of protecting the environment. The Board
remanded the 2015 ordinances to the City and entered a determination of
invalidity.
Heritage applied for direct review of the Board's decision and sought
discretionary review by this court. The Snohomish Superior Court, having heard
no objection from the Board, certified the case for direct review by this court. On
August 8, 2016, a commissioner of this court granted discretionary review.
ANALYSIS
Scope of 2016 Order
Heritage argues that the Board5 improperly expanded the scope of its
review in its 2016 order to include issues that had been dismissed by the 2014
order. But Heritage cites only to the concurring opinion of the Board's 2016 order,
which criticized Heritage's failure to provide a new transportation analysis despite
the 2014 order's determination that the City's traffic conclusions were not credible.
Heritage has not demonstrated that the concurring opinion required additional
actions or reargument of the issue before the Board. We reject Heritage's
5We note that Central Puget Sound Growth Management Hearings Board, Brandi Blair, Matthew Blair, Brett Blair, James Blair, Lowell Anderson, Douglas Hamar, Chad McCammon, and the City of Monroe are all respondents in this appeal. 6 No. 75375-4-1 /7
argument and conclude that the Board did not improperly expand the 2016 order's
scope of review.
Review Framework
Board Review of Local Planning Actions
The Board "is charged with adjudicating GMA compliance and invalidating
noncompliant plans and development regulations." Lewis County v. W. Wash.
Growth Mgmt. Hr'gs Bd., 157 Wn.2d 488, 497, 139 P.3d 1096(2006)(citing RCW
36.70A.280, .302). The Board hears petitions pertaining to "state agency, county,
or city planning" compliance with the GMA or an environmental impact statement's
(EIS) compliance with SEPA. RCW 36.70A.280(1)(a); see also chapter 41.21C
RCW.
Under the GMA, comprehensive plans and development regulations are
presumed valid when adopted, and thus the Board must "grant deference to
counties and cities in how they plan for growth, consistent with the requirements
and goals of" the GMA. RCW 36.70A.320(1)-(2). But "deference to counties
remains 'bounded . . . by the goals and requirements of the GMA." Whatcom
County v. Hirst, 186 Wn.2d 648, 667, 381 P.3d 1 (2016)(quoting King County v.
Cent. Puget Sound Growth Mgmt. Hros Bd., 142 Wn.2d 543, 561, 14 P.3d 133
(2000)(hereinafter referred to as Soccer Fields)6). Therefore, the Board "shall
find compliance' unless it determines that a county action 'is clearly erroneous in
view of the entire record before the board and in light of the goals and
6 This is the naming convention used in Lewis County. See 157 Wn.2d at 497. 7 No. 75375-4-1 /8
requirements' of the GMA." Lewis County, 157 Wn.2d at 497 (quoting RCW
36.70A.320(3)).
"To find an action 'clearly erroneous,' the Board must have a 'firm and
definite conviction that a mistake has been committed." Lewis County, 157 Wn.2d
at 497 (quoting Dep't of Ecology v. Pub. Util. Dist. No. 1 of Jefferson County, 121
Wn.2d 179, 201, 849 P.2d 646 (1993)). "[A] board's ruling that fails to apply this
'more deferential standard of review' to a county's action is not entitled to
deference from [an appellate court]." Quadrant Corp. v. State Growth Mgmt. Fleas
Bd., 154 Wn.2d 224, 238, 110 P.3d 1132(2005).
If the Board finds that the state agency, county, or city is not in compliance
with the GMA, it "shall remand the matter to the affected state agency, county, or
city." RCW 36.70A.300(3)(b). "A county or city subject to a determination of
invalidity made under RCW 36.70A.300... has the burden of demonstrating that
the ordinance or resolution it has enacted in response to the determination of
invalidity will no longer substantially interfere with the fulfillment of the goals of the
[GMA]." RCW 36.70A.320(4).
Administrative decisions state that an ordinance adopted in response to a
finding of invalidity is accorded a presumption of validity. RCW 36.70A.320(1); see
Abenroth, et al. v. Skagit County, No. 97-2-0060c, coordinated with Skagit County
Growthwatch v. Skagit County, No. 07-2-0002, 2009 WL 419365, at *3 (Wash.
Growth Mgmt. Hr'gs Bd. Jan. 21, 2009)("While the ordinance that is adopted to
cure non-compliance is entitled to a presumption of validity, nevertheless, the local
jurisdiction must still demonstrate to the Board that it has addressed the area of
8 No. 75375-4-1/ 9
non-compliance identified in the [final decision and order.1"). This language is
similar to the language of cases according deference to city and county planning
actions prior to a finding of invalidity. See Quadrant Corp., 154 Wn.2d at 238.
Appellate Court Review of Board Decision
On appeal from a decision of the Board, the appellate court reviews the
decision of the Board and accords deference to the Board's determination of the
GMA's requirements. Soccer Fields, 142 Wn.2d at 553; Lewis County, 157 Wn.2d
at 498.
The appellate court applies the standards of the Administrative Procedure
Act (APA), chapter 34.05 RCW, directly to the record before the Board. Soccer
Fields, 142 Wn.2d at 552-53. Under the APA,"[t]he burden of demonstrating the
invalidity of agency action is on the party asserting invalidity." RCW
34.05.570(1)(a).
"[D]eference to county planning actions, that are consistent with the goals
and requirements with the GMA, supersedes deference granted by the APA and
courts to administrative bodies in general." Quadrant Corp., 154 Wn.2d at 238.
But"this deference ends when it is shown that a county's action are in fact a 'clearly
erroneous' application of the GMA." Quadrant Corp., 154 Wn.2d at 238.
Summary
The City's comprehensive plans and development regulations are
presumed valid when adopted, and thus are owed deference by the Board. The
Board may only overturn the City's planning actions upon a finding of clear error
and that the planning action would substantially interfere with the goals of the
9 No. 75375-4-1 / 10
GMA. Upon a finding of clear error, the Board may remand the planning action to
the City to take remedial actions to bring the planning action into compliance with
the GMA. Although these remedial actions are also presumed valid when enacted,
the City has the burden of showing that it has brought the planning action into
compliance with the GMA. The Board applies the same clear error standard in its
review of the remedial actions taken.
This court applies the standards of the APA to the decision of the Board. If
the Board's order correctly found that the City's planning action was clear error,
this court defers to the Board's determination of the GMA's requirements. But if
this court determines that the Board erred when it found clear error or did not give
sufficient deference to the City, this court gives deference to the City's planning
action.
Board Leoal Errors
Heritage argues that the Board made several legal errors in its 2016 order
when it determined that Heritage was still noncompliant with the GMA. The Board
responds that Heritage's assignments of legal error are barred by the law of the
case and the doctrine of issue preclusion. The Board argues in the alternative that
it properly applied the law and that Heritage's arguments rely on inapplicable law.
We conclude that Heritage's assignments of legal error are not barred by issue
preclusion because Heritage was not in privity with the City at the time of the
Board's 2014 order. But we also conclude that the Board did not err in its 2016
order.
10 No. 75375-4-1 / 11
Issue Preclusion
The Board argues that Heritage's assignments of error 3, 4, and 5 are
barred by the law of the case and the doctrine of issue preclusion because Heritage
failed to appeal the Board's 2014 order. We conclude that Heritage was not in
privity with the City at the time of the 2014 order, and thus Heritage's arguments
are not barred by issue preclusion.
"An unchallenged conclusion of law becomes the law of the case." King
Aircraft Sales, Inc. v. Lane, 68 Wn. App. 706, 716, 846 P.2d 550 (1993). Issue
preclusion, also called collateral estoppel, bars a party from arguing an issue that
has been previously decided. Shoemaker v. City of Bremerton, 109 Wn.2d 504,
507, 745 P.2d 858 (1987).
The elements of issue preclusion are
(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.
Malland v. State Dep't of Ret. Sys., 103 Wn.2d 484,489,694 P.2d 16 (1985).
In general, "privity describes a 'mutual or successive relationship to the
same right or property." World Wide Video of Wash., Inc. v. City of Spokane, 125
Wn. App. 289, 306, 103 P.3d 1265 (2005)(quoting Hackler v. Hackler, 37 Wn.
App. 791, 794, 683 P.2d 241 (1984)). "Its binding effect flows from the fact that
the successor who acquires an interest in the right is affected by the adjudication
in the hands of the former owner." World Wide Video, 125 Wn. App. at 306.
11 No. 75375-4-1 /12
Privity in the context of collateral estoppel is "applied cautiously due to the
danger of depriving a nonparty of its day in court." Stevens County v. Futurewise,
146 Wn. App. 493, 508, 192 P.3d 1 (2008). Privity has been found in the context
of collateral estoppel between a seller and buyer of real property, the owner of
property and a successor in interest, and between a guardian and a ward. See
Riblet v. Ideal Cement Co., 54 Wn.2d 779, 345 P.2d 173(1959)(seller and buyer);
In re Rvnninq's Estate, 1 Wn. App. 565, 462 P.2d 952 (1969) (property and
successor in interest); Bull v. Fenich, 34 Wn. App. 435, 661 P.2d 1012 (1983)
(guardian and ward).
Here, the Board has not demonstrated that Heritage and the City held a
mutual or successive relationship to the same right or property. The Board argues
that Heritage was in privity with the City at the time of the 2014 order because its
position in support of the rezone was consistent with that of the City.7 But the
Board has not cited precedent holding that the owner of a subject property with a
consistent position regarding a rezone was in privity with the enacting municipality.
The Board has not otherwise demonstrated that having the same position in favor
of the rezone is sufficient to give rise to a finding of privity between Heritage and
the City. Because the Board has not demonstrated that Heritage and the City were
in privity with one another at the time of the 2014 order, we conclude that Heritage's
present claims of legal error are not barred by issue preclusion. We need not reach
the other elements of issue preclusion.
7 The Board cites to Heritage's statement in its motion to intervene that its position was consistent with that of the City. 12 No. 75375-4-1 /13
City Environmental Regulations
Heritage argues that the Board erred by requiring analysis of environmental
impacts to areas of the Property that are protected by the City's regulations.
Because the SEIS was required to consider environmental impacts within critical
areas contained within the Property because the entire Property was subject to the
rezone, we disagree.
The requirements for environmental analyses vary based on whether the
planning action at issue is a project action or a nonproject action. "A project action
involves a decision on a specific project, such as a construction or management
activity located in a defined geographic area." WAC 197-11-704(2)(a). "Non-
project actions involve decisions on policies, plans, or programs," including "[t]he
adoption or amendment of comprehensive land use plans or zoning ordinances."
WAC 197-11-704(2)(b)(ii); see also WAC 197-11-774.
A "county, city, or town reviewing a project action" may determine that the
adverse environmental impacts of the proposed action are addressed sufficiently
under SEPA by its existing development regulations, comprehensive plan, or other
applicable rules. RCW 43.21C.240(1), (2); see also WAC 197-11-158 (rule
allowing counties or cities to rely on existing plans, laws, and regulations for project
actions).
But a county, city, or town may not rely on its existing plans, laws, and
regulations when evaluating the adverse environmental impacts of a nonproject
action. Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd., 176 Wn. App. 555,
578 n.4, 309 P.3d 673 (2013). Rather, "an EIS is adequate [under SEPA] in a
13 No. 75375-4-1 / 14
nonproject zoning action where the environmental consequences are discussed in
terms of the maximum potential development of the property under the various
zoning classifications allowed." Ullock v. City of Bremerton, 17 Wn. App. 573, 581,
565 P.2d 1179(1977).
Here, Heritage's reliance on the City's existing laws and regulations
exception for project actions is misplaced.8 The reclassification at issue concerns
an amendment to the City's comprehensive plan and the rezoning of the entire
Property from LOS to GC. Thus, it is a nonproject action. As a nonproject action,
the SEIS had to evaluate all possible adverse environmental consequences of the
rezone and could not rely on the City's existing environmental regulations in order
to be adequate under SEPA. We conclude that the Board did not err when it
determined that the SEIS improperly relied on the City's existing environmental
regulations.
Remote and Speculative Consequences
Heritage argues that the Board erred by requiring Heritage to address
remote and speculative consequences of its actions in its 2016 order. Because
the 2016 order properly determined that the SEIS was insufficient due to its failure
to analyze the potential environmental impacts of rezoning the entire Property, we
disagree.
"EIS adequacy refers to the legal sufficiency of the environmental data
contained in the impact statement." Klickitat County Citizens Against Imported
8Heritage raises several arguments challenging specific aspects ofthe Board's 2016 order based on the City's existing environmental regulations. See Appellant's Opening Br. at 31-33(e.g., challenging the Board's required evaluation of a "'reasonable use exception"). For the reasons stated in this section, we reject these arguments. 14 No. 75375-4-I /15
Waste v. Klickitat County, 122 Wn.2d 619, 633, 860 P.2d 390 (1993), 866 P.2d
1256 (1994). To be adequate, the EIS must satisfy the "rule of reason," which
requires that the EIS provide a "reasonably thorough discussion of the significant
aspects of the probable environmental consequences" of the agency action at
issue to inform the decision-makers. Cheney v. Mountlake Terrace,87 Wn.2d 338,
344-45, 552 P.2d 184 (1976)(quoting Trout Unlimited v. Morton, 509 F.2d 1276,
1283(9th Cir. 1974)).
Although an EIS must discuss the environmental consequences of a
nonproject zoning action in terms of the maximum potential development of the
property to be adequate under SEPA, SEPA "does not require that every remote
and speculative consequence of an action be included in the EIS." Solid Waste
Alternative Proponents v. Okanogan County,66 Wn. App. 439,442,832 P.2d 503
(1992).
"Whether an EIS is adequate is a question of law, subject to review de
novo." Klickitat County, 122 Wn.2d at 632. "Although review is de novo, the court
must give 'substantial weight' to the governmental agency's determination that an
EIS is adequate under SEPA." Klickitat County, 122 Wn.2d at 633 (citing RCW
43.21C.090; Citizens for Clean Air v. City of Spokane, 114 Wn.2d 20, 34,785 P.2d
447 (1990)). The court examines "whether the environmental effects of the
proposed action and reasonable alternatives are sufficiently disclosed, discussed
and that they are substantiated by supportive opinion and data." Leschi Imp.
Council v. Wash. State Highway Comm'n,84 Wn.2d 271, 286, 525 P.2d 774, 804
P.2d 1 (1974) (internal quotation marks omitted) (quoting The National
15 No. 75375-4-1 /16
Environmental Policy Act: What Standard of Judicial Review?, 39 J. Air L. & Corn.
643,654 (1973)).
Here, to be adequate under SEPA, the SEIS had to discuss and disclose
the probable adverse environmental consequences based on the maximum
possible development of the Property. Heritage's specific challenges to the
Board's determination that the SEIS was inadequate rely on the assumption that
the developable area of the Property would be limited.9 As discussed above,
Heritage may not rely on the City's existing laws, plans, and regulations to lessen
its environmental review burden for the present nonproject action. This includes
the limitation of developable land relied on by Heritage. Therefore, we conclude
that the Board properly concluded that the SEIS was legally insufficient because it
did not analyze the potential environmental impacts.
Heritage argues that the Board improperly required it to consider the impact
that natural forces or the activities of uphill property owners could have on landslide
and erosion hazards in the Property. In its 2016 order, the Board discussed the
known landslide activity that could occur after extended periods of precipitation
"with or without other factors (such as activities at the top of the slope)."10 The
Board noted that the SEIS did not examine the impact of development on these
landslide hazards, water features, and water quality. Thus, the SEIS failed to
9 See Appellant's Opening Br. at 35-37 (arguing that the City's regulations limited the developable area of the Property, that the Board improperly focused on the existence of a "reasonable use exception" to the City's regulations, that landslide and erosion hazard analysis was unnecessary because the "developable area is located physically well away from the slope" in light of the City's regulations, and that the wetland and stream areas in the Property were protected from development by the City's regulations). 10 CP at 1850.
16 No. 753751-4-I / 17
consider both the Property's existing risks and how those would be impacted by
future development. We reject Heritage's argument.
Analysis of Project-Specific Actions
Heritage argues that the Board erred in its 2016 order by requiring Heritage
to evaluate the environmental impacts of project actions, such as compensatory
flood storage, although the rezone at issue is a nonproject action. Because the
SEIS mistakenly assumed that the City would require compensatory storage as
mitigation under its existing regulations for project actions, we disagree.
"A project action involves a decision on a specific project, such as a
construction or management activity located in a defined geographic area." WAG
197-11-704(2)(a). "Non-project actions involve decisions on policies, plans, or
programs," including "[t]he adoption or amendment of comprehensive land use
plans or zoning ordinances." WAC 197-11-704(2)(b)(ii); see also WAG 197-11-
774.
A lead agency preparing an EIS for a nonproject proposal is accorded more
flexibility under SEPA because generally there is less detailed information
available on environmental impacts and subsequent project proposals. WAG 197-
11-442(1); see Cascade Bicycle Club v. Puget Sound Reg'l Council, 175 Wn. App.
494, 514, 306 P.3d 1031 (2013) (accepting a nonproject EIS that "evaluate[d]
environmental effects at a relatively broad level"). The EIS for a nonproject action
concerning a specific area may include specific site analyses, and should identify
"subsequent actions that would be undertaken . . . as a result of the nonproject
proposal, such as transportation and utility systems." WAG 197-11-442(3).
17 No. 75375-4-1 / 18
"Any governmental action may be conditioned or denied . . . based upon
policies identified by the appropriate governmental authority and incorporated into
regulations, plans, or codes which are formally designated by the agency. . . as
possible bases for the exercise of authority [under SEPA]." RCW 43.21C.060.
"Such action may be conditioned only to mitigate specific adverse environmental
impacts which are identified in the environmental documents prepared [pursuant
to SEPA]." RCW 43.21C.060.
The adequacy of an EIS is reviewed de novo, with substantial weight given
to the Board's determination of adequacy. Klickitat County, 122 Wn.2d at 633.
Here, Heritage mistakenly assumed that the MMC would require future
project actions to perform compensatory flood storage mitigation activities. The
SEIS relied on preliminary 2007 FIRMs, which placed the Property in a 100-year
floodplain. The City has not adopted the 2007 FIRMs. Based on the 1999 FIRMs
that have been adopted by the City, the Property is in a 500-year floodplain. The
MMC does not require compensatory storage for fill activities in a 500-year
floodplain. Because the City still considered the Property to be in a 500-year
floodplain, the current MMC did not require mitigation through compensatory'
storage following cut and fill activities on the Property. Thus,the SEIS clearly erred
when it based its fill, compensatory flood storage, and habitat enhancement
conclusions on the mistaken assumption that the Property was located in a 100-
year floodplain.
Absent other analysis properly examining the probable adverse
environmental impacts to the Property as a 500-year floodplain, the SEIS's
18 No. 75375-4-1 /19
discussion was inadequate under SEPA because it did not provide decision-
makers with sufficient information to make a reasoned decision. We conclude that
the Board did not err when its 2016 order determined that the SEIS did not
sufficiently analyze the probable adverse environmental impacts of developing the
Property.
Heritage argues that the Board failed to demonstrate sufficient deference to
Heritage's environmental determinations because it "made patently sweeping and
unjustifiable conclusions that reflected the Board's predilection against the
reclassification," and cites to the Board's discussion about the impact of residential
and commercial construction.11 The Board's 2016 order concluded that a mistake
had been made when the SEIS stated that construction of five residential homes
would displace habitat while commercial alternatives would improve habitat.
Heritage's argument relies on the same assumption that future project actions,
such as construction of commercial development, would be required to perform
mitigation actions, such as compensatory storage for fill activities. For the reasons
stated above, the SEIS's reliance on the requirement of compensatory storage as
a mitigation measure is misplaced because the MMC does not currently mandate
such mitigation actions. We disagree.
We conclude that Heritage's claims of legal error in this appeal are not
barred by issue preclusion because the Board has not shown that Heritage and
the City were in privity at the time of the 2014 order. But Heritage's claims of legal
11 Appellant's Opening at 27-28. 19 No. 75375-4-1/ 20
error are without merit. The SEIS clearly erred when it failed to analyze the
possible adverse environmental impacts of the maximum possible development of
the rezone by relying on its existing regulations. Similarly, the SEIS clearly erred
when it failed to provide a reasonably thorough discussion of the probable
environmental impacts by assuming that the City's regulations would limit the
developable area of the Property. The SEIS also clearly erred when it based its
fill, compensatory flood storage, and habitat enhancement conclusions on the
inaccurate assumption that the Property was located in a 100-year floodplain under
the MMC. Thus,the Board did not demonstrate insufficient deference to the City's
planning actions when it properly concluded that the SEIS contained clear legal
errors. Therefore, in light of our deference to the Board's determination of what
the GMA requires, we conclude that the Board did not commit legal error in its
2016 order.
Discretion in Choosing Method of Compliance
Heritage argues that the City had discretion to determine how to comply
with the GMA and, therefore, the 2016 order demonstrates insufficient deference
to the City's planning actions. We disagree.
"[T]he GMA does not prescribe a single approach to growth management,"
and local governments have discretion in creating their comprehensive plans and
development regulations. Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d
820, 830, 256 P.3d 1150 (2011); Diehl v. Mason County, 94 Wn. App. 645, 650,
972 P.2d 543 (1999)(citing RCW 36.70.010-.901). This discretion extends to a
city's choice of how to bring legislation into compliance with the GMA. Suguamish
20 No. 75375-4-1 /21
Tribe v. Kitsap County, No. 07-3-0019c, 2012 WL 5755954, at *2 (Cent. Puget
Sound Growth Mgmt. Flegs Bd. Feb. 6, 2012); Suquamish Tribe, No. 07-3-0019c,
2012 WL 864905(Feb. 21, 2012). But the local government must still comply with
other requirements of the GMA when exercising its discretion regarding
methodology. Diehl, 94 Wn. App. at 650.
Here, the Board's 2016 order did not reject the City's choice of methodology
for complying with the GMA. The Board stated that the City's choice to draft an
SEIS was not a clearly erroneous approach to achieve compliance.12 Rather, the
Board found that the City did not adequately address the GMA's planning goal of
protecting the environment because the contents of the SEIS were insufficient
under SEPA. Thus, the Board rejected the content of the City's plan but did not
infringe on the City's discretion to choose a method of achieving compliance. We
reject Heritage's argument.
Determination of Invalidity Based on SEPA
Heritage argues that the Board erred when its 2016 order relied on SEPA
alone to invalidate the 2015 ordinances. Specifically, Heritage argues that the
Board's 2016 order did not sufficiently demonstrate how the 2015 ordinances
would substantially interfere with the GMA's goal of protecting the environment.
Because the 2016 order contains significant analysis of the SEIS's inadequacy and
gives additional reasons why the 2015 ordinances would substantially interfere
with the GMA's goal of protecting the environment, we disagree.
12 OP at 1823 ("Conclusion of Law: A supplemental EIS was not a clearly erroneous approach to compliance under these facts."). 21 No. 75375-4-1 /22
One of the GMA's planning goals is to "[p]rotect the environment and
enhance the state's high quality of life, including air and water quality, and the
availability of water." RCW 36.70A.020(10). If the Board determines that a plan
or regulation constitutes a "major violation of the GMA,the growth board has the
option of determining that the plan or regulation is invalid." Town of Woodway v.
Snohomish County, 180 Wn.2d 165, 175, 322 P.3d 1219 (2014).
Generally, the Board may not declare a plan invalid based solely on a
violation of SEPA. See Town of Woodwav v. Snohomish County, 172 Wn. App.
643, 660-61 n.22, 291 P.3d 278 (2013)(noting this court's decision in Davidson
Series & Assocs. v. Cent. Puget Sound Growth Mgmt. Hr'qs Bd., 159 Wn. App.
148, 158 n.8, 244 P.3d 1003(2010), and acknowledging that the Board had never
previously invalidated an ordinance based solely on SEPA noncompliance); see
also Davidson Series, 159 Wn. App. at 158 ("On the appropriate facts, the Board
could find that failure to properly conduct the required environmental review for a
city or county action interfered with fulfillment of the GMA's environmental goal
and, upon such a finding, could invalidate the relevant ordinance.").
"A county or city subject to a determination of invalidity. . . has the burden
of demonstrating that the ordinance or resolution it has enacted in response to the
determination of invalidity will no longer substantially interfere with the fulfillment
of the goals of [the GMAT RCW 36.70A.320(4). "[The question is not whether
the action to remedy the invalidity itself complies with the GMA, but whether the
remedial action in response to the invalidity finding 'will no longer substantially
22 No. 75375-4-1/ 23
interfere' with the GMA." Miotke v. Spokane County, 181 Wn. App. 369, 382, 325
P.3d 434(2014)(quoting RCW 36.70A.320(4)).
Here, the Board's 2014 order noted that noncompliance with SEPA alone
was insufficient to justify invalidating the 2013 ordinances. The Board went on to
invalidate the 2013 ordinances because the FEIS was insufficient to inform
decision-makers of the probable adverse environmental impacts and because the
majority of the Property contained critical areas and shorelines that would be
harmed without proper environmental review.
Following remand, Heritage bore the burden of demonstrating that the 2015
ordinances would no longer substantially interfere with the GMA's goals following
its remedial actions undertaken in response to the 2014 order. Heritage's scope
of work focused on conducting further environmental analyses and producing the
SEIS to bring the rezone into compliance with SEPA and the GMA.
In its 2016 order, the Board determined that these environmental analyses
did not demonstrate that the 2015 ordinances would not interfere with the GMA.
For example, as discussed above, the SEIS failed to analyze the adverse
environmental impacts that would result from the entire rezoned Property being
developed, and mistakenly assumed that the MMC would require future projects
to include compensatory storage as mitigation.
The Board concluded that the SEIS was inadequate under SEPA,such that
the 2015 ordinances would still substantially interfere with the GMA's goal of
protecting the environment. Therefore, the Board's finding of invalidity was based
in part on Heritage's failure to meet its burden of showing that its remedial actions
23 No. 75375-4-I /24
had cured the defects identified by the Board. We conclude that the 2016 order
did not invalidate the 2015 ordinances on the basis of SEPA alone.
Heritage argues that the Board erred by not including sufficient findings of
fact and conclusions of law specifically related to the GMA in its 2016 order. The
Board must "[i]nclude[] 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 [the
GMA]." RCW 36.70A.302(1)(b).
Here, in its 2016 order, the Board provided numerous findings of fact and
conclusions of law relating to the SEIS. These findings of fact and conclusions of
law supported its ultimate determination that the SEIS was inadequate under
SEPA, and thus the 2015 ordinances would substantially interfere with the GMA's
goal of protecting the environment. We conclude that the Board provided the
requisite findings of fact and conclusions of law in support of its determination that
the SEIS was inadequate under SEPA.
Heritage also argues that the Board erred because it did not make a finding
or conclusion related to the GMA to support its determination of invalidity.
Specifically, Heritage contends that the 2016 order had to include "new and
specific findings and conclusions tied to the SEIS and how the 2015 ordinances
were so egregious as to represent a major violation of the GMA."13 Because
Heritage does not offer legal authority in support of this argument, we reject it.
RAP 10.3(a)(6).
13 Appellant's Reply Br. at 21. 24 No. 75375-4-1/ 25
Findings of Fact and Conclusions of Law
Statutory Sufficiency
Heritage argues that the Board erred when it did not include sufficient
findings of fact, conclusions of law, or clear remand instructions in its 2016 order
to support its determination of invalidity. Because the 2016 order contains
numerous findings of fact and conclusions of law that support its determination of
invalidity and because the 2016 order clearly invalidated the 2015 ordinances in
full, we disagree.
The Board may determine that all or part of a comprehensive plan or
development regulations is invalid if it:
(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; and
(c) Specifies in the final order the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity.
RCVV 36.70A.302(1).
Here, the Board's 2016 order entered an order of invalidity with regard to
the 2015 ordinances and remanded the entirety of the 2015 ordinances to be
brought into compliance with the GMA and SEPA. The Board's 2016 order
included numerous findings of fact and conclusions of law supporting its
determination of invalidity. These findings and conclusions sustain the Board's
ultimate conclusion that the SEIS was inadequate under SEPA, and that the 2015
25 No. 75375-4-1 /26
ordinances would substantially interfere with the GMA's goal of protecting the
environment. Thus, the Board's 2016 order properly made a finding of
noncompliance, provided a determination of invalidity, supported that
determination with findings of fact and conclusions of law, and remanded the
entirety of the 2015 ordinances based on its conclusion that they would
substantially interfere with the GMA's goal of protecting the environment. We
conclude that the 2016 order complied with RCW 36.70A.302(1).
Factual Findings & Assignments of Error
Heritage argues that several of the Board's factual statements14 or findings
of fact do not demonstrate sufficient deference to the City's environmental
determinations. Heritage provides a general assignment of error, and does not
challenge specific findings of fact made by the Board.15 "A separate assignment
of error for each finding of fact a party contends was improperly made must be
included with reference to the finding by number." RAP 10.3(g). Because Heritage
failed to comply with RAP 10.3(g), we decline to reach its argument.
Here, Heritage provides a general assignment of error. It does not provide
separate assignments of error challenging specific findings of fact made by the
Board in its 2016 order. We decline to address Heritage's challenges.
14 Heritage challenges several statements made by the Board that were not part of a finding of fact or conclusion of law. 15 Appellant's Opening Br. at 3 ("Did the Board err by failing to enter substantive and specific findings and conclusions to support invalidity?"); see also Appellant's Opening Br. at 3(issues pertaining to assignments of error 8 and 9). 26 No. 75375-4-1/ 27
Affirmed.
j
WE CONCUR: