Posted by: Patricia Salkin | November 18, 2016

WA Supreme Court Holds Board had Discretion to Decide Whether or Not to Declare a Comprehensive Plan Invalid, After Finding Noncompliance with Growth Management Act

Whatcom County sought review of the Growth Management Hearings Board’s final decision and order determining that rural element of the County’s comprehensive plan and zoning code failed to comply with Growth Management Act (GMA). The County sought review of Board’s final decision and order, arguing that Board erred by declining to declare ordinance invalid. The Court of Appeals reversed the Board, holding that the Board erroneously interpreted and applied the law in holding that the ordinance failed to comply with the GMA. Additionally, the Court of Appeals held that the Board engaged in an unlawful procedure by taking official notice of, and relying on, two documents without first providing the County notice and the opportunity to contest the documents. However, the Court of Appeals affirmed the Board’s decision not to declare the ordinance invalid, holding that the decision was a proper exercise of the Board’s discretion. On appeal, the County argued that the Board’s conclusions were based on an erroneous interpretation of the law, and asked the court find that the County’s comprehensive plan protected the quality and availability of water as required by the GMA.

The court found that the County’s comprehensive plan did not protect water availability because it allowed permit-exempt appropriations to impede minimum flows. In reaching this holding, the court first noted that that “minimum flows” were flows or levels “to protect instream flows necessary for fish and other wildlife, recreation and aesthetic purposes, and water quality.” The GMA reinforced the conservation goals and priorities first established in the Water Resources Act of 1971 (WRA) by requiring local governments to plan for the protection of their local environment. As such, the GMA required counties to adopt a comprehensive plan and development regulations consistent with the comprehensive plan. The court determined that the Board properly concluded that the GMA therefore required counties to make determinations of water availability. Moreover, the language placing this burden on the county or local government was clear, consistent, and unambiguous throughout the Act.

The court next found that in addition to the deficiencies in the County’s comprehensive plan under the GMA, the Board properly ruled that the plan was inconsistent with the court’s prior decisions protecting closed basins and minimum flows from groundwater appropriations. Specifically, by deferring to Ecology’s Nooksack Rule, the County authorized building permits on a presumption of water availability in lieu of the GMA’s requirement of “evidence of adequate water supply.” Ecology’s Nooksack Rule established instream flows as “necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values”, and expressly provide that only Whatcom Creek was closed to permit-exempt uses. However, the Nooksack Rule did not provide that water was legally available for permit-exempt uses in all other streams in water resource inventory area (WRIA). The Board correctly found that this approach had an adverse impact on minimum flows, that it did not comply with the GMA, and that it was incompatible with prior decisions aimed at protecting instream flows from impairment by groundwater withdrawals.

The court next addressed the Board’s ruling that the County’s current inspection system policies were flawed and would not protect water quality in the future. The court noted that the Board’s conclusion that the County plan did not have the necessary measures to comply with this requirement was all that was needed to establish that the County’s comprehensive plan did not satisfy the GMA. Here, the evidence cited by the Board was not essential to this ruling, but instead underscored the importance of implementing effective protective measures in rural Whatcom County. Accordingly, the court reversed the Court of Appeals’ holding that the Board’s decision improperly imposed a duty on the County to “enhance” water quality rather than to merely “protect” water quality, and affirmed the Board’s ruling that the County’s rural element failed to comply with the requirement to protect water quality.

Finally, Hirst cross-appealed the Board’s decision declining to declare the County’s comprehensive plan invalid. Hirst argued that the Board erroneously interpreted and applied the GMA because it applied an incorrect legal standard. However, the court found that the Board did not abuse its discretion in declining to make a determination of invalidity, as the GMA provided statutory remedies for plans or regulations that the Board determined to have violated the GMA. The remedies the GMA provided the Board with to: enter a finding of noncompliance, or enter a finding of invalidity. Thus, the Board did not abuse its discretion in declining to make a finding of invalidity.

Whatcom County v. Hirst, 381 P.3d 1 (WA 2016)


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