HomeMy WebLinkAbout003Michelle Farfan
From: David Alvarez <dalvarez@co jefferson.wa.us>
Sent: Wednesday, January 19, 20114:49 PM
To: John Austin; Phil Johnson; David Sullivan
Cc: Philip Morley; CAO Staff; Al Scalf; Stacie Hoskins; David W. Johnson; James Robinson;
Charlie Bermant
Subject: Court of Appeals finds the Brinnon MPR Ordinance compliant with GMA, SEPA
and the Planning Enabling Act
Attachments: D2 39071 -0 -II PUBLISHED OPINION.pdf
Importance: High
NOT CONFIDENTIAL
Colleagues:
The attached 39 page opinion affirms the decisions of Clallam County Superior Court (writ case) and Thurston
County Superior Court (appeal of decision from Hearings Board finding the Ordinance compliant with the GMA) with
respect to the Brinnon MPR Ordinance adopted in January 2008, some three years ago.
All arguments brought forth by the Brinnon Group (represented by Gerald Steel) were rejected, including those
that alleged that the County had to satisfy the "public participation" requirements of both the GMA (adopted in 1990)
and the Planning Enabling Act or PEA (adopted in 1959).
The Court of Appeals said that the Hearings Board properly ruled on the PEA issues placed before it by the
Brinnon Group. The COA also ruled that the Hearings Board properly found that the County did not fail to engage in
sufficient public participation as the Brinnon MPR Ordinance went through the PC-BoCC process in late 2007 and early
2008.
The Court of Appeals also ruled that the writ case brought in Clallam County Superior Court was without merit
because the Brinnon Group had an adequate remedy at law, specifically that the Hearings Board or the Thurston County
Superior Court could have ruled that the Brinnon MPR Ordinance did not comply with either GMA or SEPA, both of
which were alleged by the Brinnon Group.
My second published opinion in 11 years with the County, I have one loser (Lakeside Industries) and now one
winner (Brinnon Group).
David Alvarez.
From: Jan Chadbourne
Sent: Wednesday, January 19, 2011 2:42 PM
To: David Alvarez
Subject: FW: D2 39071 -0 -II PUBLISHED OPINION SERVICE
Importance: High
Did you get this?
Jan
From: Boardman, Catherine [mailto:Catherine.Boardman@courts.wa.gov]
Sent: Wednesday, January 19, 2011 2:36 PM
To: amackie@perkinscoie.com; geraldsteel@yahoo.com; jcooke@perkinscoie.com; #prosecutors; christat@atg.wa.gov;
BruceTl@atg.wa.gov
Cc: Boardman, Catherine
Subject: D2 39071-0-II PUBLISHED OPINION SERVICE
Importance: High
To Counsel and Interested Parties:
Attached is a Published Opinion filed today, 1/19/2011.
This will be the only notice you will receive from the court.
The court now accepts motions and other correspondence (not briefs at this time) sent to
coa2filings@courts.wa.gov. Please begin the subject line and document name with your six digit case
number. For example, 123456 -State v. Smith --Motion For Extension.
Please contact the court at (253) 593-2970 if you have any questions or comments.
Thank you.
Catherine Boardman
Judicial Administrative Assistant
1a
FILED
MURT (T APP -At._S
'± f
IN THE COURT OF APPEALS OF THE STATE OF WASHING''�l1 0' Rid iQ` 57
DIVISION II
BRINNON GROUP, a Washington nonprofit
corporation; and BRINNON MRP
OPPOSITION, a Washington nonprofit
corporation;
Appellants,
V.
JEFFERSON COUNTY; STATESMAN
GROUP OF COMPANIES LTD.; BLACK
POINT PROPERTIES LCC; G.P. BYRKIT; P
& N BYRKIT FAMILY TRUST; PALMER
and NANCY BYRKIT; WILLIAM
KAUFMAN; VF MANKE TRUST; JOAN
MANKE; CHARLES and JUDITH MANKE;
HAL and JANICE RICHARDS; and STATE
DEPARTMENT OF NATURAL
RESOURCES;
Respondents.
and
WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD, an
administrative agency; JEFFERSON
COUNTY; a political subdivision of the State
of Washington; PLEASANT HARBOR
MARINA AND GOLF RESORT, LLP; and
PLEASANT HARBOR MARINA, LLC;
Respondents.
No. 39071 -0 -II
(consolidated with 39491 -0 -II)
PUBLISHED OPINION
PENOYAR, C.J. — In January 2008, Jefferson County (County) enacted an ordinance that
amended its comprehensive plan to permit the development of a master planned resort (MPR)
39071 -0 -II / 39491 -0 -II
near Brinnon, Washington. Brinnon Group and Brinnon MPR Opposition) challenged the
ordinance by filing (1) a petition for review with the Western Washington Growth Management
Hearings Board (Board) and (2) a complaint for a constitutional and statutory writ in Clallam
County Superior Court. The Board concluded that the County's ordinance had complied with
provisions of the Growth Management Act (GMA), chapter 36.70A RCW; the Planning
Enabling Act (PEA), chapter 36.70 RCW; and the State Environmental Policy Act (SEPA),
chapter 43.21C RCW. Thurston County Superior Court affirmed the Board's order. Clallam
County Superior Court dismissed the complaint for a constitutional and statutory writ after
concluding that judicial review of the Board's decision offered Brinnon Group an adequate
remedy to address its contentions that the County had violated the PEA. In this consolidated
appeal, Brinnon Group appeals Thurston County Superior Court's affirmance of the Board's
order and Clallam County Superior Court's dismissal of its complaint. We affirm the judgments
of both superior courts.
FACTS
I. BACKGROUND
The GMA limits urban growth to designated urban growth areas. See RCW
36.70A.110(1).2 Participating counties, however, may allow an exception to this rule by
authorizing an MPR. RCW 36.70A.360(1). An MPR is "a self-contained and fully integrated
planned unit development, in a setting of significant natural amenities, with primary focus on
1 We refer to both appellants as `Brinnon Group."
2 The legislature has repeatedly amended the GMA, the PEA, and SEPA since Brinnon Group
filed its petition for review and complaint in early 2008. See, e.g., LAWS OF 2010, ch. 211; LAWS
OF 2010, ch. 8; LAWS OF 2009, ch. 549. Because these amendments do not impact the present
analysis, we cite to the current versions of these statutes.
2
39071 -0 -II / 39491 -0 -II
destination resort facilities consisting of short-term visitor accommodations associated with a
range of developed on-site indoor or outdoor recreational facilities." RCW 36.70A.360(1).
In 2002, Jefferson County adopted the Brinnon Subarea Plan, which identified over 300
acres south of Brinnon as a "conceptual" MPR location. Administrative Record (AR) at 197.
Brinnon is an unincorporated village near Highway 101 about 35 miles south of Port Townsend.
The County apparently incorporated the subarea plan into its comprehensive plan.
The acreage that the County identified in the Brinnon Subarea Plan covered much of
Black Point, an area of land that extends into Hood Canal immediately south of Pleasant Harbor.
The acreage included multiple properties and owners. In the County's view, Black Point's
existing "recreational and visitor support activities," including two marinas, a recreational
vehicle park, and other service-oriented businesses, made the area appropriate for an MPR. AR
at 900.
The County's comprehensive plan and the county code include specific policies to guide
MPR. development. See RCW 36.70A.360(4)(a) (requiring that counties adopt such policies
before authorizing MPRs). Proposed MPR site owners must seek to amend the Comprehensive
Plan Land Use Designations Map "prior to, or concurrent with an application for master plan
review." AR at 371; See also Jefferson County Code (JCC) 18.15.126(3). Additionally, the
amendment process should evaluate the proposal's probable significant adverse impacts "even if
the proposal is to be developed in phases." AR at 371.
Significantly, for purposes of this appeal, the County's comprehensive plan also states
that a comprehensive plan amendment must conform to the GMA's and the PEA'S requirements.
The County must process site-specific comprehensive plan amendments "pursuant to the
02
39071 -0 -II / 39491 -0 -II
procedures contained within [the PEA] and the Jefferson County development regulations." AR
at 378.
II. STATESMAN'S APPLICATION
In March 2006, the Statesman Group of Companies, Ltd. (Statesman) applied for a site-
specific comprehensive plan amendment in order to develop an MPR on approximately 251
acres in the conceptual MPR area. Statesman's application included language for a proposed
comprehensive plan amendment and detailed maps of specific portions of the proposed MPR.
A. ENVIRONMENTAL IMPACT STATEMENTS
On September 5, 2007, the County issued a draft Environmental Impact Statement (draft
EIS) for the MPR project. The draft EIS identified two components to Statesman's proposed
MFR: (1) a 220+ -acre golf course and resort east of Highway 101 and south of Black Point
Road, and (2) a 37+ -acre marina and a maritime village east of Highway 101 and north of Black
Point Road. Under the proposal, Statesman would redevelop the northern portion of the existing
marina into a "Maritime Village" with stores, restaurants, and a pedestrian promenade and would
retain and refurbish the existing marina. AR at 1724. The draft EIS reduced the number of
residential units from 1,270, the number in Statesman's application, to 890 units.
The draft EIS acknowledged that Statesman's proposed MPR fit within the subarea plan's
conceptual MPR boundary. The draft EIS noted that the proposed MPR consisted of property
that Statesman owned in addition to 15.2 acres of leased tidelands owned by the Department of
Natural Resource's (DNR).
Unlike Statesman's site-specific application, the draft EIS did not include a proposed text
amendment to the County's comprehensive plan. Instead, the draft EIS included a section
entitled "Summary of the Proposal and Permitting Limitations," which stated in relevant part:
.19
39071 -0 -II / 39491 -0 -II
The drawings shown are conceptual, but any development must substantially
reflect the orientation, layout, and composition of the proposal. Mandatory
elements of any application shall include:
• Total acres
• Golf side -220± acres
• Marina side -37± acres upland and 15.2± acres tidelands
• Total units 890 project limits
• Golf side -739 units
• 52 staff apartments
• Not more than 68 units (10% of resort properties) as permanent
residences, plus any units transferred from the marina side
• Not more than 40% of resort units for long-term tourist use
(seasonal stays not to exceed six months)
• At least 50% of resort units in short-term tourist pool
• Marine [sic] side—no more than 151 units
• Not more than 16 (10%) permanent residences (may be shifted to
golf course side, but total permanent residences shall not exceed 84
units)
• Not more than 30% seasonal tourist, not to exceed six months
• At least 60% in short-term tourist pool
• Impervious surface
• Golf side -20%
• Marina side --40%
AR at 1728.
The draft EIS also included three alternatives to Statesman's proposal in order to comply
with SEPA. See RCW 43.21C.030(c)(iii). The "no action" alternative would permit Black Point
to develop under current zoning regulations while the other two alternatives the Brinnon
Subarea Plan alternative and the hybrid alternative—would permit the MPR to develop on the
full 310 acres that the subarea plan identified. Properties outside the areas of Statesman's
proposal would develop at urban resort densities under the Brinnon Subarea Plan alternative and
at rural residential densities under the hybrid alternative.
The County published a "Notice of Intent to Amend Comprehensive Plan" and ultimately
received 413 written comments. AR at 1363. Of those individuals expressing an opinion, 127
5
39071 -0 -II / 39491 -0 -II
favored the MPR and 112 opposed it. Brinnon Group submitted written comments in opposition,
requesting that the County authorize fewer than 890 residential units, reduce the golf course from
18 to 9 holes, and preserve 50 percent (instead of 35 percent) of the land's natural space.
Brinnon Group's comments addressed numerous other issues such as landscaping, tree removal,
protecting water sources, and traffic.
On November 21, the County published a notice in the local newspaper that the Board of
County Commissioners (BOCC) would hold a public hearing on December 3 to consider the
MPR comprehensive plan amendment. The notice informed the public to contact the
Community Development Department "[fJor further information." AR at 1555.
On November 27, the County issued the final Environmental Impact Statement (final
EIS). The final EIS included the County's responses to the written public comments.
B. . AMENDMENT TO COMPREHENSIVE PLAN
On November 28, a majority of the Planning Commission (the Commission) voted to
recommend to the BOCC that it approve the proposed comprehensive plan amendment. The
Commission's chairman signed the majority recommendation. The Commission's
recommendation included seven conditions and a map that explicitly referenced these seven
conditions in a descriptive box. The Commission's map divided the proposed MPR into four
categories (marina, open space, resort district, and tourist commercial). The Commission's
chairman and secretary did not sign the Commission's recommended map until January 8, 2008.
After a public hearing before the BOCC, County staff informed . the BOCC in a
Powerpoint presentation that MPR development would occur in five phases. In phase one, the
County would amend the comprehensive plan and create environmental impact statements. In
phase two, the County would adopt relevant zoning regulations and development agreements,
0
39071 -0 -II / 39491 -0 -II
including land use and density requirements. In phase three, the County would process
development permit applications. In phase four, the County would record plats and allow
infrastructure construction. In phase five, the County would issue building permits.
On January 28, 2008, the BOCC enacted Ordinance 01-0128-08. For purposes of this
appeal, the ordinance amended the County's comprehensive plan in three significant ways. First,
section one of the ordinance amended the Comprehensive Plan Land Use Designations map to
reflect an underlying land use designation of MPR for parcels included in the Statesman
proposal. Second, section two of the ordinance added the following text to the comprehensive
plan:
Early in 2008, Jefferson County designated a new Master Planned Resort (MPR)
in Brinnon. The new Master Planned Resort is 256 acres in size and includes the
Pleasant Harbor and Black Point areas. The Marina area is existing and would be
further developed to include additional commercial and residential uses such as
townhouses and villas. The Black Point area of the new resort would include new
facilities such as a golf course, a restaurant, a resort center, townhouses, villas,
staff housing, and a community center. The overall residential construction
would not exceed 890 total units.
AR at 1638. Third, section five of the ordinance incorporated the MPR boundary map that the
BOCC attached to the approved ordinance into the comprehensive plan.
Ordinance 01-0128-08 also placed 30 conditions on the MPR development. in finding 63.
These conditions included identical or slightly altered versions of the seven conditions that the
Commission included in its November 28 majority recommendation. The BOCC stated that it
adopted these conditions pursuant to SEPA and its general police powers.
3 Specifically, condition 1 is found in finding 63a, condition 2 is in finding 63c, condition 3 is in
findings 63e and 63f, condition 4 is in finding 63h, condition 5 is in finding 63j, condition 6 is in
finding 63s, and condition 7 is part of findings 63n -r.
7
39071 -0 -II / 39491 -0 -II
III. BRINNON GROUP'S CHALLENGES TO THE ORDINANCE
Brinnon Group challenged the ordinance in two forums. On February 19,.Brinnon Group
filed a complaint for constitutional writ of certiorari and statutory writ of review in Clallam
County Superior Court, asking the court to void the ordinance. The complaint, which named
Statesman and the County as defendants, alleged that the County had failed to comply with the
GMA's and PEA's requirements. Brinnon Group sought a constitutional writ of certiorari
because it had "no other adequate remedy at law" to review the County's compliance with the
PEA. Clallam Clerk's Papers (CCP) at 315. The complaint stated that Brinnon Group planned
to exhaust its administrative remedies by filing a petition for review with the Board in order to
address the County's alleged GMA and SEPA violations.
On March 19, Brinnon Group filed a petition for review with the Board, alleging that the
County had failed to comply with the GMA and SEPA. The Board subsequently permitted
Pleasant Harbor Marina and Golf Resort, LLP, the purchaser of the affected property, and
Pleasant Harbor Marina, LLC, the purchaser of the affected marina, to intervene in proceedings.
In its opening brief, Brinnon Group argued that the County's non-compliance with specific PEA
provisions violated the County's public participation program under the GMA because, as noted
above, the County's comprehensive plan explicitly states that the County must comply with the
PEA when amending its comprehensive plan.
A. THE BOARD'S DECISION ON THE PETITION FOR REVIEW
On September 15, the Board entered an order that the County had complied with the
GMA when it enacted Ordinance No. 01-0128-08. The Board also concluded that the County
had complied with SEPA. With regard to Brinnon Group's challenge involving the PEA, the
Board noted:
8
39071 -0 -II / 39491 -0 -II
Compliance with the [PEA] is a matter outside the Board's jurisdiction ... .
However, [Brinnon Group] point[s] to a provision of the County Comprehensive
Plan which provides that the process for adopting site specific amendments to the
Plan shall incorporate "the procedures contained within Chapter 36.70 RCW and
the Jefferson County development regulations." .... While the Board does not
have jurisdiction over Chapter 36.70 RCW, the [PEA], where the County has
imposed the requirements of the [PEA] upon itself as part of its process for
adopting site specific plan amendments pursuant to RCW 36.70A.140, the Board
has jurisdiction to review whether the County has complied with these provisions
as a means of satisfying the GMA's public participation program provisions.
AR at 2613 (footnote omitted). The Board rejected Brinnon Group's interpretation of the PEA
provisions at issue. The Board subsequently denied Brinnon Group's motion for reconsideration.
We detail the Board's conclusions and analysis for each challenged issue in the relevant sections
below.
On November 10, Brinnon Group appealed the Board's final decision and order, and the
Board's denial of its motion for reconsideration, to Thurston County Superior Court. Brinnon
Group subsequently amended its appeal to include its SEPA challenge. On June 30, 2009, the
Thurston County Superior Court affirmed the Board's order.
B. COMPLAINT FOR CONSTITUTIONAL AND STATUTORY WRIT BEFORE CLALLAM
COUNTY SUPERIOR COURT
Meanwhile, on August 12, 2008, before the Board had issued its final decision and order,
Statesman moved to dismiss Brinnon Group's complaint in Clallam County Superior Court.
Statesman argued that Brinnon Group's complaint was not properly before the court because
Brinnon Group's petition before the Board offered it an adequate remedy at law.
6
39071 -0 -II / 39491 -0 -II
On September 22, after the Board had issued its final decision and order, Brinnon Group
moved to stay the Clallam County proceedings until judicial review of the Board's final decision
and order had been completed. Brinnon Group also responded to Statesman's motion to dismiss,
arguing that it did not have any other adequate remedy at law because "[it] seeks to void
challenged Ordinance No. 01-0128-08 from the beginning (void ab initio)." CCP at 115.
Brinnon Group asserted that "[n]o other legal process is available to provide the relief of voiding
the Ordinance from the beginning." CCP at 115.
On March 9, 2009, while Brinnon Group's appeal to Thurston County Superior Court
was still pending, the Clallam County Superior Court denied Brinnon Group's motion to stay the
proceedings and dismissed its complaint with prejudice. In a memorandum opinion, the trial
court stated:
The critical inquiry in the present case is whether appeal of the [Board's] decision
to the Thurston County Superior Court provides [Brinnon Group] with an
"adequate remedy[."] While the requested reliefs may not be identical, i.e.
invalidity versus void, the substantive relief available to [Brinnon Group] on
appeal of the [Board's] decision is essentially the same as that available through
the writ process.
Therefore, it is the Court's finding that [Brinnon Group has] an adequate remedy
through appeal of the [Board's] Final Order and Decision.
CCP at 15, 17.
10
39071 -0 -II / 39491 -0 -II
In this consolidated appeal, Brinnon Group appeals (1) Thurston County Superior Court's
order affirming the Board's final decision and order and the Board's order denying its motion for
reconsideration, and (2) Clallam County Superior Court's dismissal of its complaint with
prejudice.4
ANALYSIS
I. JUDICIAL REVIEW, DEFERENCE, AND BURDEN OF PROOF IN GMA CASES
The GMA provides counties with broad discretion to develop comprehensive plans. King.
Cnty. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 561, 14 P.3d 133
(2000). A county's discretion, however, "is bounded ... by the goals and requirements of the
GMA." King Cnty., 142 Wn.2d at 561. The GMA's goals include limiting urban growth to
urban areas, reducing sprawl, encouraging economic development, retaining open space,
enhancing recreational opportunities, conserving habitat and protecting the environment,
developing recreational facilities, and encouraging citizen involvement in the planning process.
RCW 36.70A.020(1), (2), (5), (9), (10), (11).
4 Brinnon Group assigns 45 errors to the proceedings below and lists 12 "Major Issues Before
This Court." Appellant's Br. at 15. One alleged error challenges 13 of the Board's findings 'of
fact; another challenges 10 of the Board's conclusions of law. The 45 alleged errors, including
those challenging the Board's findings and conclusions, run the gamut from minor typographical
errors to alleged legal errors which, if sustained, would support Brinnon Group's argument that
the Board erred by failing to enter a finding of noncompliance or a determination of invalidity.
Rather than providing a "separate concise statement" of each alleged error, as RAP 10.3(a)(4)
counsels, Brinnon Group discusses many of its assigned errors in lengthy footnotes that
internally cross-reference other sections and footnotes. We address Brinnon Group's "major
issues," leaving aside discussion of alleged errors which, if sustained, would not affect the case's
outcome.
11
39071 -0 -II / 39491 -0 -II
The Board adjudicates GMA compliance and may invalidate noncompliant
comprehensive plans and development regulations. Lewis Cnty. v. W. Wash. Growth Mgmt.
Hearings Bd., 157 Wn.2d 488, 497, 139 P.3d 1096 (2006) (citing RCW 36.70A.280,.302). The
Board may also find that a county is not in compliance .with the GMA's requirements and
remand to enable the county to comply with the GMA's requirements. RCW 36.70A.300(3)(b).
The Board presumes that a county's comprehensive plan is valid upon adoption. RCW
36.70A.320(1). Consequently, the Board must find that a county complied with the GMA unless
the party challenging the plan demonstrates that the county's action was "clearly erroneous in
view of the entire record before the board and in light of the [GMA's] goals and requirements."
Lewis Cnty., 157 Wn.2d at 497 (quoting RCW 36.70A.320(3)); see. also PCW 36.70A.320(2)
(stating that a challenger has burden to demonstrate that a county's action is not GMA-
compliant). A county's action is "clearly erroneous" if the Board has a firm and definite
conviction that the county made a mistake. Thurston Cnty. v. W. Wash. Growth Mgmt. Hearings
Bd., 164 Wn.2d 329, 340-41, 190 P.3d 38 (2008).
The Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review
of a growth board's actions. Thurston Cnty., 164 Wn.2d at 341; see also RCW 36.70A.300(5).
Under the APA, "[t]he party appealing a board's decision has the burden of demonstrating the
invalidity of the board's actions." Thurston Cnty., 164 Wn.2d at 341; see also RCW
34.05.570(1)(a). In reviewing the Board's actions, "we sit in the same position as the trial court
and apply the APA standards directly to the administrative record." Suquamish Tribe v. Cent.
Puget Sound Growth Mgmt. Hearings Bd., 156 Wn. App. 743, 760, 235 P.3d 812 (2010)
(quoting Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus., 112 Wn. App. 291, 296,
49 P.3d 135 (2002)), review denied, No. 85085-2 (Wash. Jan. 4, 2011). Thus, like the Board, we
12
39071 -0 -II / 39491 -0 -II
defer to the county's planning action unless the action is "clearly erroneous." See Quadrant
Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132
(2005); RCW 36.70A.320(3); See also RCW 36.70A.3201.
Under the APA, we grant relief from the Board's order after an adjudicative proceeding if
we determine, in relevant part, that:
(b) The order is outside the statutory authority or jurisdiction of the agency
conferred by any provision of law;
(d) The agency has erroneously interpreted or applied the law; [or]
(e) The order is not supported by evidence that is substantial when viewed in light
of the whole record before the court, which includes the agency record for judicial
review, supplemented by any additional evidence received by the court under this
chapter.
RCW 34.05.570(3).
We review the Board's "legal conclusions de novo, giving substantial weight to its
interpretation of the statutes it administers" and the Board's "findings of facts for substantial
evidence." Manke Lumber Co., Inc. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 113 Wn.
App. 615, 622, 53 P.3d 1011 (2002). Substantial evidence is a sufficient quantity of evidence to
persuade a fair-minded person of the correctness of the Board's order. Thurston Cnty. v. Cooper
PointAss'n, 148 Wn.2d 1, 8, 57 P.3d 1156 (2002).
Il. JEFFERSON COUNTY'S COMPLIANCE WITH ITS PUBLIC PARTICIPATION PROGRAM
Brinnon Group first argues that the Board erred when it determined that the County
complied with the public participation requirements -of the GMA and the county code. See RCW
36.70A.140; JCC 18.45.010(2). As part of its GMA claim, Brinnon Group argues .that the
County violated two PEA provisions. See RCW 36.70.400, .430. These arguments fail.
13
39071 -0 -II / 39491 -0 -II
A county planning under the GMA must establish ' a "public participation program
identifying procedures providing for early and continuous public participation in the
development and amendment of comprehensive land use plans." RCW 36.70A.140; accord
RCW 36.70A.070 ("A comprehensive plan shall be ... amended with public participation as
provided in RCW 36.70A.140.") A county's procedures must provide for broad dissemination of
proposals, opportunity for written comments, public meetings after effective notice, open
discussion, communication programs, information services, and consideration of and response to
public comments. RCW 36.70A.140; accord JCC 18.45.010(2). A county's inexact compliance
with its established public participation program and procedures, however, does not invalidate a
comprehensive plan "if the spirit of the program and procedures is observed."5 RCW
36.70A.140.
In a nutshell, Brinnon Group argues that the. ordinance included significant "changes"
from the Commission's recommendation arid, therefore, the public should have been given the
opportunity to comment on these "changes." Importantly, however, the GMA does not always
require additional public comment when a county's legislative body elects to consider a
comprehensive plan amendment after the time for comment has passed:
(2)(a) Except as otherwise provided in (b) of this subsection, if the legislative
body for a county or city chooses to consider a change to an amendment to a
comprehensive plan or development regulation, and the change is proposed after
the opportunity for review and comment has passed under the county's or city's
procedures, an opportunity for review and comment on the proposed change shall
be provided before the local legislative body votes on the proposed change.
5 Brinnon Group, citing language from a service of process case, asks us to interpret compliance
with "the spirit of the program and procedures" as meaning "substantial compliance."
Appellant's Br. at 38 (citing Weiss v. Glemp, 127 Wn.2d 726, 903 P.2d 455 (1995)). We decline
to do so.
14
39071 -0 -II / 39491 -0 -II
(b) An additional opportunity for public review and comment is not required
under (a) of this subsection if.
(i) An environmental impact statement has been prepared under chapter 43.21C
RCW for the pending resolution or ordinance and the proposed change is within
the range of alternatives considered in the environmental impact statement;
RCW 36.70A.035 (emphasis added).
As we discuss in detail below, we agree with Statesman that the substance of many of the
BOCC's minor alterations to the Commission's recommendation appeared in the draft EIS.
Thus, under RCW 36.70A.035(2)(b)(i), we agree that no further opportunity for public comment
was required for these alterations. We also conclude that Brinnon Group's remaining claims that
the County violated its public participation program'lack merit.
A. COMPREHENSIVE PLAN TEXT AMENDMENT
Brinnon Group contends that the BOCC violated public participation requirements when
it adopted the text amendment to the comprehensive plan. Brinnon Group relies primarily on
two PEA provisions, RCW 36.70.400 and RCW 36.70.430, to argue that the BOCC cannot adopt
a text amendment without first providing the exact language of the text amendment to the
Commission, which must then, elicit comment on the language at a public hearing.
1. Standard of Review
In addition to the general GMA standard of review, we also review questions of statutory
interpretation de novo. Woods v. Kittitas Cnty., 162 Wn.2d 597, 607, 174 P.3d 25 (2007). Our
primary goal is to determine and give effect to the legislature's intent. Woods, 162 Wn.2d at
607. "[I]f the statute's meaning is plain on its face, then the court must give effect to that plain
meaning as an expression of legislative intent." Woods, 162 Wn.2d at 607 (quoting Dep't of
Ecology v. Campbell & Gwinn LLC, 146 Wn.2d 1, 9-10,43 P.3d 4 (2002)).
15
39071 -0 -II / 39491 -0 -II
2. PEA Requirements
The legislature enacted the PEA in 1959 in order "to provide the authority for, and the
procedures to be followed in, guiding and regulating the physical development of a county."
RCW 36.70.010; LAWS of 1959, ch. 201. The PEA includes procedures to assist counties in
planning for development, including procedures to establish planning commissions, boards of
adjustment, and comprehensive plans. See RCW 36.70.010, .030, .200, .320-.340; see also
Durocher v. King Cnty., 80 Wn.2d 139, 143, 492 P.2d 547 (1972).
The legislature enacted the GMA over 30 years later, and, as we noted above, the GMA
likewise addresses issues of urban development, seeking among other things to limit sprawl and
conserve open space. See RCW 36.70A.020(1), (9); LAWS of 1990, lst Ex. Sess., ch. 17. Our
Supreme Court has observed, therefore, that the PEA and the GMA are "two related statutes
which should be `... read together to determine legislative purpose to achieve a harmonious total
statutory scheme."' Whatcom Cnty. v. Brisbane, 125 Wn.2d 345, 354, 884 P.2d 1326 (1994)
(internal quotation marks omitted) (alteration in original) (quoting Ellensburg v. State, 118
Wn.2d 709, 713, 826 P.2d 1081 (1992)).
Throughout this analysis, we are mindful of our Supreme Court's observation that the
GMA and the PEA must be read together rather than in isolation. Thus, although the GMA—not
the PEA—includes the provision in RCW 36.70A.035(2)(b)(i) that an additional opportunity for
public comment is not required where a county's legislative, body proposes ,a change to a
comprehensive plan amendment as long as the public had the opportunity to consider the
39071 -0 -II / 39491 -0 -II
proposed change in an EIS, we conclude that this provision applies to a county's planning
process as a whole even when the county incorporates procedures from the PEA into its planning
process. To conclude otherwise would ignore the reality that these two statutes arise from a
common purpose. Such an approach would create discord, not harmony.
Turning to the specific PEA provisions at issue, Brinnon Group points out that, under the
PEA, a majority of the county's planning commission must approve a comprehensive plan
amendment. RCW 36.70.400; see also RCW 36.70.020(4) (defining "[c]ommission"). The
commission's approval "shall be by a recorded motion . . . and the reasons for [the
commission's] action and the motion shall refer expressly to the maps, descriptive, and other
matters intended by the commission to constitute the ... amendment." RCW 36.70.400. The
commission's approval "shall be recorded on the map and descriptive matter by the signatures of
the chair and the, secretary of the commission." RCW 36.70.400.
The PEA also establishes that when the BOCC "considers a change in the
recommendations of the planning agency to be necessary," the BOCC may "initiate
consideration" of a comprehensive plan amendment. RCW 36.70.430. When the BOCC elects
to "initiate consideration" of an amendment, the BOCC "shall first refer the proposed ... change
... to the planning agency for a report and recommendation." RCW 36.70.430. Before the
planning commission issues its report and recommendation, the commission "shall hold at least
one public hearing on the proposed ... change." RCW 36.70.430; see also RCW 36.70.440
(discussing the procedures for the BOCC's approval of the Commission's recommendation).
17
39071 -0 -II / 39491 -0 -II
3. Board's Conclusion
The Board rejected Brinnon Group's argument that the PEA prohibited the BOCC from
adopting the text amendment without prior referral to the Commission. In the Board's view,
RCW 36.70.430 "[did] not require the exact wording of the text amendment to be included in the
Planning Commission's recommendation." AR at 2614. Because the text amendment's
language "did not differ in substance from the site specific plan amendment described in the
[draft EIS] and the [final EIS] and the recommendation of the Planning Commission," the Board
determined that interested citizens had the opportunity to comment on the substance of the
proposal embodied in the text amendment. AR at 2614. Accordingly, the BOCC did not violate
public participation requirements by adopting the text amendment.
4. Text Amendment Analysis
A plain reading of.the PEA supports the Board's interpretation. RCW 36.70.400 does not
require the Commission to recommend any specific amendatory language to the BOCC. Rather,
the statute requires that the Commission refer to "descriptive[] and other matters intended by the
commission to constitute the amendment." RCW 36.70.400. In other words, the
Commission's job is to adequately describe the amendment's effects, not to draft its specific
language. The Commission complied with RCW 36.70.400 because its recommendation to the
BOCC adequately described the MPR project as follows: "This proposed MPR rezone of 256
acres on Black Point in Brinnon would create 890 units of permanent and transient housing, an
18 hole golf course, and commercial space along the marina and at the golf course." AR at 1550.
Brinnon Group characterizes the BOCC's adopted text amendment as a "change[] to the
[Commission's] recommended MPR amendment." Appellant's Br. at 39. Accordingly, in its
view, RCW 36.70.430 prohibited the BOCC from adopting the text amendment without first
18
39071 -0 -II / 39491 -0 -II
referring this "change" to the Commission for a public hearing and the Commission's subsequent
report and recommendation.
But whether the text amendment contains changes that require referral to the Commission
under the language of RCW 36.70.430 does not entirely depend on the precise words that the
amendment uses. The language of RCW 36.70.430 suggests that the legislature intended to
require referral to the Commission only when the BOCC's changes or additions to the
comprehensive plan prevented the public from a full opportunity to comment on the County's
proposed action. Moreover, as we noted above, by adopting RCW 36.70A.035(2)(b)(i), the
legislature signaled its intent to provide county legislative authorities like the BOCC with greater
flexibility in adopting proposed changes to their comprehensive plans. As long as these
proposed changes appeared in the draft EIS, which the public may review and comment on, no
additional opportunity for public comment is required. RCW 36.70A.035(2)(b)(i). Thus, in
addressing Brinnon Group's claim, we must look not only at the Commission's recommendation
and the BOCC's adopted text amendment, but also at the information that the County made
available for public comment in the draft EIS.
A fair comparison of the Commission's recommendation and the BOCC's text
amendment illustrates that the BOCC's text amendment added only a few specific details to the
Commission's general project description. Significantly, every single one of these details,
except a pronouncement that the County designated the MPR in 2008, was made available for
19
39071 -0 -II / 39491 -0 -II
public comment in the draft EIS .6 Thus, the public had ample opportunity to comment on the
specific details that the BOCC ultimately included in the text amendment. We disagree,
therefore, that the County violated public participation requirements when it adopted the text
amendment.
6 The following specific details appear in the BOCC's text amendment but not in the
Commission's recommendation:
• The County designated the MPR in 2008;
• The MPR includes the Pleasant Harbor area;
• "Permanent and transient housing" will include "townhouses and villas" and staff
housing;
• Specified facilities, including the golf course and resort, will be located in "[t]he Black
Point area of the new resort;"
• "Commercial space" will include a restaurant and resort center; and
• A community center will be built.
Compare AR at 1550 with AR at 1638. But the draft EIS contains information that is nearly
identical to the information in the BOCC's text amendment:
The Pleasant Harbor Marina and Gold Resort Master Plan proposal involves two
components:
• The Golf Course and resort located on the Black Point portion of the
property south of Black Point Road.
• The marina and Maritime Village adjacent to the current Pleasant Harbor
Marina and north of Black Point Road.
The MPR for the Black Point [L]ands ... includes ... [a] championship 18 -hole
golf course ... [a] 60,000 square foot resort center ... [a] [r]estaurant and lounge
with outdoor lanai ... [a] conference center and reception ... 462 -two-story
garden townhomes ... 97 -one level villas ... 52 -unit staff housing ... [a] 200 -
seat community center.
AR at 1715, 1717, 1728.
20
39071 -0 -II / 39491 -0 -II
B. BOCC's MAP AMENDMENT
Brinnon Group also contends that the BOCC violated public participation requirements
when it added to the comprehensive plan an MPR boundary map that made "substantial changes"
to the Commission's recommended map. Appellant's Br. at 42. This argument fails.
Brinnon Group observes that the BOCC's adopted map differs from the Commission's
map in four ways: (1) the BOCC's map includes 15.2 acres of leased DNR tidelands, unlike the
Commission's map; (2) the BOCC's map does not include four small parcels,7 each less than an
acre in size, that are included in the Commission's map; (3) the BOCC's map does not include
marina, open space, resort district, and tourist commercial designations, as the Commission's
map does; and (4) the BOCC's map does not refer to the seven conditions, like the
Commission's map does.
The Board, did not specifically address this issue, but it did enter a finding, which
Brinnon Group challenges on appeal, that the BOCC did not - alter the Commission's
recommendation "except to add additional conditions." AR at 2643.
We conclude that the BOCC's minor adjustments to the Commission's map complied
with the County's public participation program. First, the public had the opportunity to comment
on the inclusion of the DNR tidelands, which appeared in the draft EIS. Second, Statesman's
application did not include the four small parcels that appeared in the Commission's map; thus,
the BOCC's exclusion of these parcels was a corrective measure. Third, although the BOCC's
map does not include the Commission's land use designations, the County may add these
7 The parcels in question are the Stevens (0.6 acres), Dowd (0.4 acres), Voetberg (0.8 acres), and
DNR (0.2 acres) parcels at the MPR's northern tip.
21
39071 -0 -II / 39491 -0 -II
designations at a later phase. Finally, the BOCC incorporated identical or slightly altered
versions of the Commission's seven conditions into the ordinance at finding 63.
C. INCLUSION OF CONDITIONS
Brinnon Group argues that the BOCC made "substantial changes" to the Commission's
recommendation by adopting 30 conditions instead of the 7 conditions that the Commission
recommended. Appellant's Br. at 10 n. 49. Brinnon Group maintains that the public should
have had an opportunity to comment on the BOCC's additional conditions. This argument lacks
merit.
The Board concluded that the BOCC's additional conditions did not violate the GMA's
or the county code's public participation requirements. See RCW 36.70A.140; JCC
18.45.010(2), The Board noted that the county code only requires the BOCC to hold an
additional public meeting after its regularly scheduled public hearing if the BOCC determines
that a change to the Commission's amendment recommendation is necessary. See JCC
18.45.080(2)(b). The Board observed that the comprehensive plan amendment was "the first
step of a five step process" and concluded that the conditions did not. alter the Commission's
recommendation except to respond to public input about "how the project should be conditioned
during subsequent phases of approval." AR at 2616-17.
The BOCC's adoption of additional conditions to guide the MPR development was not
clearly erroneous. As the Board noted, these conditions guide future development. Many
conditions are directly related to fostering GMA goals like encouraging regional economic
development, involving stakeholders, conserving habitat, and protecting the environment. See
RCW 36.70A.020. Others are SEPA-related, and, under SEPA, the County has specific
authority to impose conditions on a proposed development in order to "mitigate specific adverse
22
39071 -0 -II / 39491 -0 -II
environmental impacts." RCW 43.21 C.060. SEPA does not require the County to remand these
conditions for public comment. See RCW 43.21 C.060.
D. COMMISSION'S FAILURE TO SIGN MAP AMENDMENT
Brinnon Group next argues that the Commission violated the PEA—specifically, RCW
36.70.400—because the Commission's chair and secretary failed to sign its recommended map
until January 8, over a month after the BOCC's public hearing. As we noted above, the PEA
requires that the commission's approval "shall be recorded on the map and descriptive matter by
the signatures of the chair and the secretary of the commission." RCW 36.70.400. Brinnon
Group characterizes this as a "fundamental error" that prevented the BOCC from
"understand[ing] the exact material that the [Commission] recommend[ed] for inclusion in the
Comprehensive Plan." Appellant's Br. at 7 n. 41. We disagree.
The Board rejected this argument. The Board agreed that the Commission's failure to
include a signed map did not "fulfill the exact requirement of RCW 36.70.400," but the Board
concluded that "this failure is not one that `renders' this comprehensive plan amendment
`invalid' as the County fully described and referred to the [final EIS] map of the proposal that
was'consistent with the one eventually adopted." AR at 2623.
We agree with the Board that the Commission's failure to deliver a timely signed map to
the BOCC did not prevent the BOCC from understanding the Commission's recommendation.
The Commission's chairman signed the majority recommendation, which described the size,
location, and nature of the MPR project. A County staff report delivered to the BOCC stated that
the Commission recommended approval of the MPR proposal that appeared in the final EIS.
The final EIS describes the project in great detail. Thus, the record does not support Brinnon
Group's argument that the BOCC did not understand the Commission's recommendation.
23
39071 -0 -II / 39491 -0 -II
E. EFFECTIVE NOTICE
In a related argument, Brinnon Group argues that ,the County did not provide the public
with "effective notice" of the Commission's map because the Commission's map was not
"signed and available" to the public until January 8, after the BOCC stopped accepting public
comments. Appellant's Br. at 9 n. 44. Brinnon Group suggests that this did not allow the public
an adequate opportunity to prepare comments for the BOCC. Again, we disagree.
The GMA's public participation requirements include "notice procedures that are
reasonably calculated to provide notice to ... affected and interested individuals ... of proposed
amendments to comprehensive plans." RCW 36.70A.035(1). The county code also mandates
"public meetings after effective notice." JCC 18.45.010(2).
In rejecting Brinnon Group's argument, the Board observed that the county code does not
establish a time frame for when the Commission's recommendation must be publicly available.
The Board also noted that the County's November 21 published notice informed the public that it
could contact the Community Development Department for "further information." AR at 2620.
Although the Board described this notice as "less than ideal," it concluded that "interested
persons could obtain information about the [Commission's] recommendation after November 21,
2007." AR at 2620. Finally, the Board determined that the Commission's signed map was
consistent with the draft EIS maps, which the public saw and commented on.
We agree that the public had effective notice of the MPR proposal at the time of the
BOCC's public hearing. Brinnon Group's argument rests 'on its challenge to the Board's
conclusion that the Commission's recommended map was inconsistent with the draft EIS maps
that the County provided to the public for comment. Although Brinnon Group exhaustively
details the minor differences between these maps, these differences do not support Brinnon
24
I
39071 -0 -II / 39401 -0 -II
Group's contention that the public lacked effective notice of the overall MPR proposal. As we
detailed above, the BOCC's adopted boundary map is consistent with the maps that the public
viewed in the draft EIS. Thus, the public had effective notice of the proposal that the BOCC
adopted. Moreover, even assuming that the ordinance "changed" the proposed amendment, the
County was not required to provide an additional comment -period under RCW
36.70A.035(2)(b)(i) since the information in the draft EIS clearly reflected the BOCC's changes.
III. INTERNAL CONSISTENCY IN THE COMPREHENSIVE PLAN
Brinnon Group next argues that the BOCC created an internal inconsistency in the
County's comprehensive plan because section one of the ordinance amended the existing
Comprehensive Plan Land Use Designations Map to reflect an underlying designation of "MPR"
on the affected properties without contemporaneously amending the Brinnon Comprehensive
Plan Land Use Designations Map in the subarea plan. We disagree.
Under the GMA, a comprehensive plan must be "an internally consistent document and
all elements shall be consistent with the future land use map." RCW 36.70A.070 (emphasis
added). This requirement means that differing parts of the comprehensive plan "must fit together
so that no one feature precludes the achievement of any other." WAC 365-196-500.8 A
comprehensive plan may include a subarea plan that is "consistent with the comprehensive plan."
RCW 36.70A.080(2).
8 When Jefferson County enacted the ordinance, this language appeared in a different chapter of
the Washington Administrative Code. See former WAC 365-195-070(7) (1992), repealed by
Wash. State Register. 10-03-085 (Feb. 19, 2010).
25
39071 -0 -II / 39491 -0 -II
A. BOARD'S CONCLUSION
The Board rejected Brinnon Group's argument. The Board, noting that the County
"intends to employ a phased process" to develop the MPR, stated that the County would modify
the Brinnon Comprehensive Plan Land Use Designations Map during the second phase of the
development process, which includes zoning changes. The subsequent modification would make
the two maps consistent.
B. INTERNAL CONSISTENCY ANALYSIS
We agree with the Board that there is no inconsistency between the Brinnon
Comprehensive Plan. Land Use Designations Map and the Comprehensive Plan Land Use
Designations Map. As the Board recognized, the County can amend the Brinnon Comprehensive
Plan Land Use Designations Map during the second phase. More importantly, however, the
Brinnon subarea plan states, "[t]he land use maps provided are for initial discussion purposes
only and do not constitute land use designation proposals." AR at 1529. Because the land use
designations on the Brinnon Comprehensive Plan Land Use Designations Map are only
conceptual, they do not "preclude[ ] the achievement" of the MPR land use designation on the
Comprehensive Plan Land Use Designations Map. See WAC 365-196-500.
IV. BUILDING INTENSITIES
Brinnon Group argues that the County violated RCW 36.70A.070(1) by failing to include
the MPR's non-residential building intensities in the comprehensive plan text amendment. RCW
36.70A.070(1) states:
Each comprehensive plan shall include a plan, scheme, or design for each
of the following ...
... [a] land use element designating the proposed general distribution and
general location and extent of the uses of land .... The land use element shall
061
39071 -0 -II / 39491 -0 -II
include population densities, building intensities, and estimates of future
population growth.
We reject Brinnon Group's argument.
A. BOARD'S CONCLUSION
The Board concluded that the County did not violate RCW 36.70A.070(1). The Board
stated that the comprehensive plan's "goals and policies" would control the MPR's development.
AR at 2633. The Board also. cited the County's multi -phase development process and
determined that the County would "define[] and limit[]" building intensities during the County's
subsequent phase. AR at 2633.
B. BUILDING INTENSITIES ANALYSIS
As an initial matter, we note that the Comprehensive Plan Land Use Designations Map
does, in fact, include land use designations and rural residential building intensities for the Black
Point area. Thus, the County is not is violation of RCW 36.70A.070(1)'s plain language that
requires a county's comprehensive plan to include "[a] land use element designating the
proposed general distribution and general location and extent of the uses of land .... includ[ing]
building intensities."
We are not persuaded by Brinnon Group's argument that RCW 36.70A.070(1) also
requires the comprehensive plan to specifically limit commercial building intensities. Here, the
comprehensive plan amendment limits the MPR's size to 256 acres and lists the MPR's
commercial structures. We agree with the Board that the County may define commercial
building intensities during a subsequent development phase. We also note that the County's
development regulations for the MPR, including those defining commercial building intensities,
must be consistent with the comprehensive plan amendment. See RCW 36.70A.040(3)(d),
27
39071 -0 -II / 39491 -0 -II
(4)(d). The amendment, therefore, restricts the scope of the MPR's development. Brinnon
Group cites no authority to demonstrate that the County must include commercial building
intensities as part of its initial comprehensive plan amendment.
Further, the comprehensive plan contains policies called LNPs that limit the MPR's
building intensities. LNP 24.5 and LNP 24.6 describe the residential and non-residential
facilities allowed within the MPR. Under these policies, the MPR "shall consist of
predominantly short-term visitor accommodations," but may include "some other permanent
residential uses," like staff housing and vacation properties. AR at 371. LNP 24.9 requires the
MPR to contain "sufficient portions of the site in undeveloped open space for buffering and
recreational amenities to help preserve the natural and rural character of the area." AR at 372.
The building intensities that the County adopts during the subsequent phase must be guided by
these policies and the construction limitations that the ordinance adopted.
Essentially, Brinnon Group highlights problems that might result should the County fail,
at a future date, to set commercial building intensities that are consistent with its comprehensive
plan. These future theoretical problems do not demonstrate a flaw in the current ordinance, only'
that the development process is ongoing.
V. SEPA
Brinnon Group further argues that the County violated SEPA by (1) issuing an
inadequate final EIS that failed to include reasonable alternatives to Statesman's proposal, and
(2) failing to cite a specific policy for each of the 30 conditions that the County included in the
ordinance. Brinnon Group asks us to vacate the comprehensive plan amendment on these
grounds. We agree with the Board that the County complied with SEPA.
28
39071 -0 -II / 39491 -0 -II
A. REASONABLE ALTERNATIVES IN THE EIS
Brinnon Group contends that the County's final EIS is inadequate as a matter of law
because the alternatives considered in the final EIS do not attain the proposal's objectives. at a
lower environmental cost than the proposal. Brinnon Group argues that "[b]ecause both
alternatives allow the Statesman Proposal inside the project boundaries and then allow increased
development outside the project boundaries, neither alternative can be `at lower environmental
cost."' Appellant's Br. at 49. We disagree.
1. Standard of Review
The Board has jurisdiction over petitions claiming that a county's comprehensive plan
actions are not SEPA-compliant. RCW 36.70A.280(1)(a). We review an EIS's "adequacy"—
i.e., the legal sufficiency of the environmental data in the EIS ---de novo. King Cnty. v. Cent.
Puget Sound Growth Mgmt. Hearings Bd., 138 Wn.2d 161, 183, 979 P.2d 374 (1999); Klickitat
Cnty. Citizens Against Imported Waste v. Klickitat Cnty, 122 Wn.2d 619, 633, 860 P.2d 390
(1993). We assess the EIS's adequacy under "the rule of reason." Citizens Alliance to Protect
Our Wetlands v. City of Auburn, 126 Wn.2d 356, 361, 894 P.2d 1300 (1995). An EIS is
adequate under the rule of reason when it presents decision makers with a "reasonably thorough
discussion of the significant aspects of the probable environmental consequences." Residents
Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275,
311, 197 P.3d 1153 (2008) (quoting Klickitat Cnty. Citizens Against Imported Waste, 122 Wn.2d
29
39071 -0 -II / 39491 -0 -II
at 633). We accord substantial weight to an agency's determination of EIS adequacy. See, RCW
43.21C.090;9 accord King Cnty., 138 Wn.2d at 183.
2. EIS's Alternatives
SEPA requires an EIS to include a detailed discussion of alternatives to the proposed
action. RCW 43.21C.030(c)(iii). The required discussion of alternatives "is of major
importance, because it provides a basis for a reasoned decision among alternatives having
differing environmental impacts." Weyerhaeuser v. Pierce Cnty., 124 Wn.2d 26, 38, 873 P.2d
498 (1994). EIS alternatives must "include actions that could feasibly attain or approximate a
proposal's objectives, but at a lower environmental cost or decreased level of environmental
degradation," WAC 197-11-440(5)(b).
At the outset, we note that the potential for alternatives with less environmental impact
was somewhat limited in this case by the intensity of the'proposed MPR development itself: 890
units of permanent and transient housing, an 18 -hole golf course, and commercial space along
the marina. Thus, any "reasonable alternative" had to allow this intense development but attempt
to do so at a lower environmental cost.
The EIS proposed three alternatives. The first alternative, the no action alternative, did
not allow for resort development at all. The County does not challenge the Board's conclusion
that this alternative did not comply with WAC 197-11-440(5)(b) because it did not feasibly attain
or approximate the proposal's objective.
9 Washington courts have not explored the interplay between the rule of reason and RCW
43.21 C.090's principle of agency deference. See RICHARD L. SETTLE, THE WASHINGTON STATE
ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS § 14.01 [1][b], at 14-22 (2009)
(observing that Washington courts have never explained "how much, if at all, [RCW
43.21C.090] reduces the level of judicial scrutiny.").
30
39071 -0 -II /39491 -0 -II
We conclude that the final EIS contains evidence that the other two alternatives, the
Brinnon Subarea Plan and hybrid alternatives, could attain the proposal's objectives at a lower
environmental cost despite occupying a larger footprint (310 acres) than Statesman's proposed
MPR (256 acres). For example, the Brinnon Subarea Plan alternative would (1) make the resort
more self-sustaining, which would reduce traffic trips; (2) add a sewer system to the marina,
which would eliminate a septic system close to Pleasant Harbor; and (3) permit the drilling of
wells further inland, thus reducing the possibility of salt water contamination. Although the final
EIS contemplates greater environmental impacts than Statesman's proposal in some respects—
for example, increased impervious surfaces and increased development intensity west of
Highway 101—our Supreme Court has approved EIS alternatives that "present[ ] greater impacts
in some areas, and fewer impacts in others." King Cnty., 138 Wn.2d at 185.10
Additionally, we note that the final EIS. described in detail how the Brinnon Subarea Plan
and hybrid alternatives would impact shellfish, water, shorelines, fish and wildlife, and critical
areas, and described mitigation measures for each alternative. Finally, as the Board noted,
Brinnon Group offered no evidence that the County failed to consider an alternative that
achieved the proposal's objectives at a lower environmental cost. Because the final EIS
10 In King County, the court considered the EIS for a proposed 2,250 unit housing development
on a 1,000 acre parcel. 138 Wn.2d at 172-73. The court concluded that a less dense one -unit -
per -acre alternative was reasonable under WAC 197-11-440(5)(b). 138 Wn.2d at 185. Although
the alternative "presented greater impacts in some areas," it would develop 2,000 fewer
residences, require 121 fewer acres of impervious surface, produce 45 percent less carbon
monoxide, lead to less water consumption, and have a lower potential to alter groundwater flow
than the proposed development. 138 Wn.2d at 185.
Brinnon Group suggests that King County articulates a rule that, for an alternative to be
"reasonable" under SEPA, it must have "intermediary impacts" between the proposal and the no
action alternative. Appellant's Reply Br. at 29 (quoting King Cnty., 138 Wn.2d at 184). While
the King County court indeed described the one -unit -per -acre alternative as "present[ing]
intermediary impacts" between the proposal and the no action alternative, the court approved the
alternative because it had "fewer impacts" in some areas. 138 Wn.2d at 184-85.
31
39071 -0 -II / 39491 -0 -II
presented the BOCC with sufficient information for a reasoned decision among alternatives
having differing environmental impacts, we conclude that the County complied with its SEPA
obligations under WAC 197-11-440(5)(b).
B. FAILURE TO CITE SPECIFIC POLICIES IN THE ORDINANCE
Brinnon Group relies on WAC 197-11-660(1) to argue that the County violated SEPA by
failing to cite a specific policy to justify the inclusion of each of the 30 conditions in the
ordinance. Brinnon Group does not assign error to, the inclusion of any of the conditions. This
argument has no merit.
1. Standard of Review
We apply the APA's error of law standard to an agency's interpretation of a statute. Pub.
Util. Dist. No. 1 of Pend Oreille Cnty. v. Dep't of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744
(2002) (citing RCW 34.05.570(3)(d)). We interpret agency regulations as if they were statutes.
Roller v. Dep't of Labor & Indus., 128 Wn. App. 922, 926, 117 P.3d 385 (2005) (quoting Cobra
Roofing Serv., Inc. v. Dep't of Labor & Indus., 122 Wn. App. 402, 409, 97 P.3d 17 (2004)).
Under the APA's error of law standard, we determine the meaning of statutes and regulations de
novo but give substantial weight to the agency's interpretation of an ambiguous statute or
regulation that falls within its area of expertise. See Pub. Util. Dist. No. 1 of Pend Oreille Cnty.,
146 Wn.2d at 790.
32
39071 -0 -II / 39491 -0 -II
2. BOCC's Conditions in the Ordinance
A county may impose conditions on a proposed development in order to "mitigate
specific adverse environmental impacts." See RCW 43.21C.060;11 City of Olympia v. Drebick,
156 Wn.2d 289, 301, 126 P.3d 802 (2006). Any mitigating conditions must be stated in writing
and based on policies, plans, rules, or regulations that the county has formally designated as a
basis for exercising its substantive authority. RCW 43.21C.060; accord WAC 197-11-660(1)(a),
(b). Additionally, "[t]he decision maker shall cite the agency SEPA policy that is the basis of
any condition." WAC 197-11-660(1)(b).
Here, the BOCC included 30 conditions of approval in finding 63 of the ordinance. In
doing so, the BOCC referenced JCC 18.40.770, a provision that incorporates SEPA's legislative
purposes as the basis for the county's exercise of authority. 12 The Board determined that the
BOCC's reference to JCC 18.40.770 was a sufficient citation to the SEPA policies under WAC
197-11-660. The Board concluded that WAC 197-11-660 did not require the County to "cite the
u RCW 43.21 C.060 states in relevant part:
Any governmental action may be conditioned or denied pursuant to this chapter:
PROVIDED, That such conditions or denials shall be based upon policies
identified by the appropriate governmental authority and incorporated into
regulations, plans, or codes which are formally designated by the agency (or
appropriate legislative body, in the case of local government) as possible bases for
the exercise of authority pursuant to this chapter. Such designation shall occur at
the time specified by RCW 43.21C.120. Such action may be conditioned only to
mitigate specific adverse environmental impacts which are identified in the
environmental documents prepared under this chapter. These conditions shall be
stated in writing by the decisionmaker. .
12 Specifically, finding 63 stated that the BOCC entered the conditions "pursuant to the authority
that is granted the County legislative authority under SEPA by RCW 43.21C.060, WAC 197-11-
660 and Jefferson County Code 18.40.770." AR at 1632. JCC 18.40.770(3)(b) appears in the
article of the county code entitled "[SEPA] Implementation" and states in relevant part: "The
county designates and adopts by reference ... as the basis for exercise of county authority
pursuant to this article ... [t]he policies enumerated in RCW 43.21C.020."
33
39071 -0 -II / 39491-0-I1
supporting SEPA policy after each and every condition of approval." AR at 2636. Brinnon
Group acknowledges that the County cited to the county code in the ordinance but argues that the
Board erred "by allowing citation to such a laundry list." Appellant's Br. at 12 n. 55.
The plain language of RCW 43.21C.060 and WAC 197-11-660 supports the Board's
interpretation. Nothing in the plain language requires a governmental entity to cite a specific
SEPA policy for each mitigating condition that it imposes on a project. Rather, mitigation
conditions must be based on "formally designated" policies. RCW 43.21C.060; WAC 197-11-
660(1)(a). Here, the County based its written conditions on the general SEPA policies in RCW
43.21 C.020, a statutory section that the County adopted by reference in JCC 18.40.770.
Brinnon Group relies on Levine v. Jefferson Cnty., 116 Wn.2d 575, 807 P.2d 363 (1991)
to support its position. Levine is distinguishable, however, because it involved a situation where
the county did not consider any identifiable policies in attaching mitigative restrictions to a
building permit. 116 Wn.2d at 581. Levine does not require the County to cite a specific SEPA
policy for each condition of approval in the ordinance.
VI. MOTION FOR RECONSIDERATION
Brinnon Group assigns error to the Board's denial of its motion for reconsideration. We
generally review a denial of a motion for reconsideration for abuse of discretion. Lilly v. Lynch,
88 Wn. App. 306, 321, 945 P.2d 727 (1997). Here, the trial court's denial was proper.
Brinnon Group based its motion on WAC 242-02-832(a) and (c), arguing that the Board
made "[e]rrors of procedure or misinterpretation of fact or law" and "[c]lerical mistakes in the
final decision and order." Specifically, Brinnon Group argued that the Board erred when it
concluded that (1) the Brinnon Subarea Plan and hybrid alternatives did not violate SEPA, (2)
the County could modify the Brinnon Comprehensive Plan Land Use Designations map during
34
39071 -0 -II / 39491 -0 -II
the zoning phase, and (3) the PEA did not require the Commission to submit the exact wording
of the text amendment to the BOCC.
Our decision has addressed each of these arguments on the merits and concluded that the
Board did not err in rejecting them. Thus, the Board properly exercised its discretion in denying
Brinnon Group's motion for reconsideration. Accordingly, we decline to address Brinnon
Group's extensive discussion of whether its motion presented "new argument" or "more precise
and thorough" argument. See Appellant's Br. at 57.
VII. CLALLAM COUNTY SUPERIOR COURT'S DISMISSAL OF BRINNON GROUP'S COMPLAINT
Finally, we must determine whether Clallam County Superior Court erred when it
dismissed Brinnon Group's complaint for a constitutional writ of certiorari. 13 We affirm the
superior court's dismissal.
A. STANDARD OF REVIEW
Superior courts have the power to issue writs of certiorari. WASH. CONST. art. IV § 6.
We review a superior court's decision to grant or deny a writ of certiorari de novo. See Torrance
v. King Cnty., 136 Wn.2d 783, 787, 966 P.2d 891 (1998) (citing Thomsen v. King Cnty., 39 Wn.
App. 505, 514-15, 694 P.2d 40 (1985)).
A constitutional writ of certiorari is not a matter of right but, rather, is discretionary with
the court. Torrance, 136 Wn.2d at 787. A superior court properly exercises its discretion to
grant a writ of certiorari when "no other adequate remedy at law is available and when the
decision below is arbitrary, capricious, or contrary to law." Torrance, 136 Wn.2d at 787-88. A
constitutional writ of certiorari is unavailable, however, if the reviewing court's power to grant
13 In this appeal, Brinnon Group appears to acknowledge that it is not entitled to a statutory writ.
See Appellant's Br. at 32 (noting that a statutory writ is not available for legislative decisions
like comprehensive plan amendments).
35
39071 -0 -II / 39491 -0 -II
relief from an agency order under the APA will provide complete and full relief. See Torrance,
136 Wn.2d at 791; see also RCW 34.05.574 (describing the relief that a court may provide under
the APA).
B. BRINNON GROUP'S CLAIMS BEFORE CLALLAM COUNTY SUPERIOR COURT
Brinnon Group correctly notes that RCW 36.70A.280(1)14 limits the Board's jurisdiction
to certain subject matters. On its face, that subsection does not authorize the Board to hear and
determine petitions alleging violations of the PEA. See RCW 36.70A.280(1). Brinnon Group
contends, therefore, that because the Board had no statutory authority to consider any of the
County's alleged PEA violations that were unrelated to the GMA's public participation
requirements, judicial review of the Board's order did not provide it with an adequate remedy to
address these alleged PEA violations. 15 We disagree.
1. The PEA's Applicability to the County's Action
As we noted above, the PEA is implicated here because the County's comprehensive plan
specifically requires the County to comply with the PEA's procedures when amending its
comprehensive plan. In its petition for review before the Board, Brinnon Group alleged that the
14 The statute states, in relevant part:
The growth management hearings board shall hear and determine only those
petitions alleging ... [tjhat, except as provided otherwise by this subsection, a
state agency, county, or city planning under this chapter is not in compliance with
the requirements of this chapter ... or chapter 43.21C RCW as it relates to plans,
development regulations, or amendments, adopted under RCW 36.70A.040 or
chapter 90.58 RCW.
RCW 36.70A.280(1)(a)-(emphasis added).
15 Essentially, this is an argument under the APA that the portion of the Board's order related to
PEA compliance is "outside the statutory authority or jurisdiction of the agency conferred by any
provision of law." RCW 34.05.570(3)(b).
36
39071 -0 -II / 39491 -0 -II
County's ordinance violated the GMA and SEPA but did not allege that the County violated the
PEA. Consequently, Brinnon Group filed a complaint for a constitutional writ in Clallam
County Superior Court in order to seek a remedy for the alleged PEA violations. Even though
Brinnon Group did not allege PEA violations in its petition for review before the Board, its
opening brief to the Board explicitly argued that the County's non-compliance with two PEA
provisions—specifically, RCW 36.70.400 and RCW 36.70.430—violated the "spirit" of the
County's public participation program under the GMA.
2. The Board's Decision.
As we noted above, the Board's final decision openly acknowledged that the Board
lacked jurisdiction under RCW 36.70A.280(1) to review the County's alleged PEA violations.
But the Board determined that it had jurisdiction to review the County's alleged PEA violations
as part of its overall review of the County's compliance with the GMA's public participation
provisions.
3. Jurisdiction Analysis
Brinnon Group acknowledges in its brief that the Board acted properly by considering its
contention that "the County violated the GMA statute, RCW 36.70A.140, because of violations
of PEA statutes." Appellant's Br. at 28. Despite that Brinnon Group agrees with the Board's
decision to address its PEA -related arguments on the merits, it argues that the two provisions of
the PEA that the County allegedly violated, RCW 36.70.400 and RCW 36.70.430, are not merely
"public participation" provisions incorporated into the GMA; rather, in Brinnon Group's view,
the County must also "substantially comply" with these provisions in order "to have authority
under the PEA to adopt comprehensive plan amendments." Appellant's Br. at 3 - n. 22. This
strained argument is meritless.
37
39071 -0 -II / 39491 -0 -II
We agree that the Board had jurisdiction to consider Brinnon Group's arguments that the
County violated RCW 36.70.400 and RCW 36.70.430 in the context of Brinnon Group's overall
challenge to the County's compliance with the GMA's public participation requirements. Again,
we emphasize the importance of reading the GMA and the PEA in harmony. The GMA gives
the Board jurisdiction to review allegations that the County violated the GMA, including the
GMA's public participation requirements. RCW 36.70A.280(1). Brinnon Group itself argued to
the Board that the County violated the GMA's public participation requirements by failing to
comply with RCW 36.70.400 and RCW 36.70.430.
Because the Board had jurisdiction to consider Brinnon Group's arguments that the
County violated RCW 36.70.400 and RCW 36.70.430 as part of its broader GMA review, the
Board could fully assess Brinnon Group's claims that the County's comprehensive plan
amendment did not comply with these PEA provisions. Likewise, Thurston County Superior
Court's review of the Board's order under the relevant APA standards provided Brinnon Group
with an adequate remedy. Consequently, Brinnon Group had another adequate remedy at law
and the Clallam County Superior Court did not err by dismissing Brinnon Group's complaint for
a constitutional writ. 16
16 'In this appeal, the parties do not address, as they did below, whether the Land Use Petition Act
also offered Brinnon Group an adequate alternative remedy.
38
39071 -0 -II / 39491 -0 -II
We deny Brinnon Group's request for attorney fees. We affirm the judgments of the
Clallam and Thurston County superior courts.
We concur:
4,,,rmstron.
7�� '64
gxJ
�v l
Van Deren, J.
39