Posted by: Patricia Salkin | August 17, 2015

WA Supreme Court Finds Moratorium Did Not Prevent a Land Use Decision from Being Final and Appealable

Opponents of wind-powered energy facility brought suit against county seeking declaration and injunctive relief to stop construction of the wind farms, alleging that county violated Growth Management Act (GMA) and Planning Enabling Act (PEA). This case involved whether the plaintiffs’ claims, were properly dismissed as time barred. The trial court granted the defendant-county’s summary judgment motion on each of the plaintiffs’ claims, but the Court of Appeals reversed on the GMA and PEA claims, reasoning that a genuine issue of fact remained as to whether Skamania County actually completed periodic review on August 2, 2005, which Skamania County argues triggered the clock for the GMA claim; and the date on which the inconsistency, if any, arose between the unmapped classification and the conservancy designation, which would have triggered the clock for the PEA claim. The Court of Appeals remanded for further factual proceedings to address the time bar issue.

The County argued that the Resolution triggered SOSA’s GMA claim because the Resolution satisfied the County’s obligation to conduct periodic review and if SOSA disagreed, they had 60 days to appeal that decision. The County also argued that the Court of Appeals erroneously construed the moratoria as “tolling” the appeal period. The court determined that the language contained in the Resolution indicated that its enactment did not constitute any part of the periodic review process. Instead, the court found SOSA’s action against the County is more properly characterized as a “failure to act” claim, which was not necessarily subject to the same 60–day appeal period. Since the petition related to the failure of a state agency, city or county to take an action by a deadline specified in the Growth Management Act or the Shoreline Management Act, the court held it may have been brought at any time after the deadline for action has passed.

Unlike its GMA claim, SOSA’s PEA claim could not be characterized as a “failure to act” claim. The court determined that only final decisions were appealable, and the unique facts presented in this case supported the conclusion that the “unmapped” areas were not a final, appealable regulation until 2012. This was because the County unequivocally stated that it needed time to update the unmapped, “free-for-all” areas to attune them with the newly adopted 2007 Plan’s conservancy designations; therefore, there was no final county action to appeal during this period. From 2007 to 2012, these areas effectively lacked any classification, and there was nothing for SOSA to challenge until the County made its final decision. Accordingly, the court held that SOSA’s September 2012 PEA claim is was timely.

Save our Scenic Area v Skamania County, 352 P. 3d 177 (WA 6/11/2015)

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