Yakima County v. Eastern Washington Growth Management Hearings Board

279 P.3d 434, 168 Wash. App. 680
CourtCourt of Appeals of Washington
DecidedJune 14, 2012
DocketNo. 29763-2-III
StatusPublished
Cited by13 cases

This text of 279 P.3d 434 (Yakima County v. Eastern Washington Growth Management Hearings Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yakima County v. Eastern Washington Growth Management Hearings Board, 279 P.3d 434, 168 Wash. App. 680 (Wash. Ct. App. 2012).

Opinion

Brown, J.

¶1 — Futurewise and the Confederated Tribes and Bands of the Yakama Nation (Yakama) appeal the Yakima County Superior Court’s reversal of two Eastern Washington Growth Management Hearings Board (GMHB) determinations that the Yakima County Critical Areas Ordinance, Ordinance 13-2007, violated certain riparian requirements of the Growth Management Act (GMA), chapter 36.70A RCW. Generally, Futurewise and Yakama contend the superior court should have left intact the GMHB’s stream buffer width and ephemeral stream decisions requiring further Yakima County action, apparently considered adverse to development interests. In a consolidated cross appeal, Yakima County and the Yakima County Farm Bureau Inc. (Farm Bureau) jointly contend the superior court erred in reaching the ephemeral streams issue because it should have been considered moot or otherwise barred by the statute of limitations. We agree with [684]*684Futurewise and Yakama that the GMHB correctly decided the stream buffer width issues and that the superior court erred in reversing them, but we reach and disagree with their ephemeral stream arguments and affirm on that issue. Accordingly, we reverse in part and affirm in part.

FACTS

¶2 The Washington Legislature adopted the GMA in 1990 to minimize the threats to the environment, economic development, and public welfare by uncoordinated and unplanned growth. RCW 36.70A.010; Whidbey Envtl. Action Network v. Island County, 122 Wn. App. 156, 163, 93 P.3d 885 (2004) (WEAN). Under the GMA, local governments are required to enact development regulations protecting “critical areas,” including fish and wildlife habitat conservation areas, wetlands, frequently flooded areas, critical aquifer recharge areas, and geologically hazardous areas. RCW 36.70A.030(5), .060(2). Concerning these critical areas, local governments must include the “best available science” to create their development regulations, typically in the form of critical areas ordinances with special consideration given to conservation or enhancement of anadromous fisheries. RCW 36.70A.172(1). County comprehensive land use plan and development regulations must be reviewed and updated periodically as needed. RCW 36.70A.130(1)(a).

¶3 Yakima County enacted its first critical areas ordinance in 1994 (amended in 1995). Under RCW 36.70A-.130(4)(c), Yakima County was required to complete periodic review and evaluation by December 2006. To that end, it convened a “best available science” advisory group composed of state, federal, tribal, and private scientific professionals in late 2002. Noting little guidance had been given for designating and protecting critical areas, the advisory group sought to assist Yakima County in (1) documenting the best available science, (2) explaining [685]*685Yakima County’s rationale when it departed from science-based recommendations, and (3) identifying potential risks to the critical areas if Yakima County did depart from the science-based recommendations. In March 2004, the advisory group issued a public-comment first draft. The October 2006 final draft is a 350-page synthesis of scientific reports and studies called ‘Yakima County’s Review of Best Available Science for Inclusion in Critical Areas Ordinance Update” (BAS Review).

¶4 Yakima County, in March 2004, began a public hearings process to discuss amendments to the critical areas ordinance. The process culminated with the enactment of Ordinance 13-2007 that included a new critical areas ordinance codified in Title 16C Yakima County Code (YCC). An amended comprehensive plan and zoning code were adopted as Ordinance 15-2007.

¶5 Futurewise, Yakama, the Washington State Departments of Fish and Wildlife and Commerce, and others filed five separate GMHB petitions for review of Ordinance 13-2007 and Ordinance 15-2007 in February 2008. The GMHB consolidated the five petitions as case no. 08-1--0008c. Later, others intervened as petitioners and respondents, including the Farm Bureau. After Yakima County enacted Ordinance 2-2009 amending Title 16C YCC, the Department of Fish and Wildlife and the Department of Commerce withdrew from the petition for review.

¶6 The GMHB held a hearing on the merits in March 2010 and issued its 96-page final decision and order in April 2010. Relevant here, the GMHB concluded (1) Yakima County’s decision not to designate and regulate type 5 ephemeral streams under the critical areas ordinance “failed to comply with the GMA due to the important role these streams play in maintaining the overall health of the stream corridor system,” (2) Yakima County’s standard stream buffers were not supported by the best available science, (3) Yakima County’s standard wetland buffers were within the range of the best available science, and (4) the [686]*686allowed minimum adjustments to the stream and wetland buffers failed to comply with the GMA. Administrative Record (AR) at 3726-27, 3760, 3769, 3774.

¶7 Yakima County and the Farm Bureau filed separate but later consolidated petitions for judicial review of the GMHB’s order in the Yakima County Superior Court. In February 2011, the superior court concluded the issue of Yakima County’s regulation of ephemeral streams was not moot or barred by the statute of limitations, and reversed the GMHB’s order that Ordinance 13-2007 must designate ephemeral streams as critical areas. The superior court found the ordinance’s stream buffer widths were within the range of the best available science or were reasonably justified outside that range, and therefore reversed the GMHB’s decision concluding that the buffers violated the GMA.

¶8 Futurewise and Yakama each filed timely notices of appeal in March 2011. Yakima County and the Farm Bureau filed cross appeals later that month. The appeals and cross appeals were consolidated by this court for review.

ANALYSIS

A. Buffers and Allowable Adjustments

¶9 The issue is whether the superior court erred in reversing the GMHB’s decision that the standard stream buffers and adjusted minimum stream and wetland buffers adopted in the critical areas ordinance did not comply with the GMA, and that the wetland buffers did comply. Futurewise and Yakama contend Yakima County’s adopted stream and wetland buffers fail to protect all the functions and values of these critical areas, as required by RCW 36.70A.172(1). Yakima County and the Farm Bureau (collectively County) respond that the GMHB failed to give proper deference to Yakima County’s planning choices related to [687]*687buffers, which fall within the range of the BAS Review recommendations.1

¶10 The GMHB adjudicates GMA compliance and invalidates noncompliant comprehensive plans and development regulations. Swinomish Indian Tribal Cmty. v. W. Wash.

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Cite This Page — Counsel Stack

Bluebook (online)
279 P.3d 434, 168 Wash. App. 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yakima-county-v-eastern-washington-growth-management-hearings-board-washctapp-2012.