HomeMy WebLinkAbout004BRINNON GROUP v. Jefferson County, 245 P.3d789 - Courtlistener.com Page 4 of24
Pleasant Harbor Marina and Golf ResortrLLP; and
Pleasant Harbor Marina, LLC, Respondents.
Nos. 39071 -0-II, 39491 -0-lI
Court of Appeals of Washington, Division 2.
January 79,2011.
*793 Gerald Barclay Steel, Attomey atLaw, Olympia, WA, for Appellant
David W. Alvarez, Jefferson Co. Pros. Atty., Jefferson Co. Courthouse, Port Townsend, WA, John T. Cooke,
Alexander Weal Mackie, Perkins Coie LLP, Seattle, WA, Christa L. Thompson, Atty. Gen. Ofc. Nat. Res. Div.,
Olympia, WA, for Respondents.
PENOYAR, C.J.
fl 1 In January 2008, Jefferson County (County) enacted an ordinance that amended its comprehensive plan to permit
the development of a master planned resort (MPR) near Brinnon, Washington. Brinnon Group and Brinnon MPR
Oppositionlll challenged the ordinance by filing (l) 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
fl 2 The GMA limits urban growth to designated urban growth areas. See RCW 36.70A.110(1).t21 Participating
counties, however, *794 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 destination resort facilities consisting of short-term visitor accommodations associated with a range
of developed on-site indoor or outdoor recreational facilities." RCW 36.704.360(1).
fl 3 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.
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fl 4 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.
fl 5 The County's comprehensive plan and the county code include specific policies to guide MPR. development. See
RCW 36.704.360(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 at37l; 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.
'!f 6 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 procedures contained within [the PEA] and the Jefferson County
development regulations." AR at 37 8.
II. STATESMAN'S APPLICATION
fl 7 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
fl 8 On September 5,2007, the County issued a draft Environmental lmpact Statement (draft EIS) for the MPR
project. The draft EIS identified two components to Statesman's proposed MPR: (l) a220 *-acre golf course and
resort east of Highway 101 and south of Black Point Road, and (2) a37 +-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.
']f 9 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 Resources (DNR).
tf 10 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 *795 Proposal and
Permitting Limitations," which stated in relevant part:
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 side220 t acres
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Marina side37 t acres upland and 15.2 * acres tidelands
Total units 890 project limits
Golf side739 units
52 staff apartments
Not more than 68 units (10% of resort properties) as pennanent residences, plus any units transferred
from the marina side
Not more than 40Yo 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] sideno more than 151 units
Not more than l6(10o/o) permanent residences (may be shifted to golf course side, but total permanent
residences shall not exceed 84 units)
Not more than30%o seasonal tourist, not to exceed six months
At least 60%o in short-term tourist pool
Impervious surface
Golf side20%
Marina side4O%
AR at 1728.
fl 11 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 alternativesthe Brinnon Subarea Plan altemative 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 altemative and at rural residential
densities under the hybrid alternative.
fl 12 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 favored the MPR and ll2 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 t 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.
fl 13 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 "[flor further
information." AR at 1555.
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fl 14 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
fl 15 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.
tf 16 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 *796 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, 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.
fl 17 On January 28,2008, the BOCC enacted Ordinance 0l-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.
fl 18 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.t3l The BOCC stated that it adopted these conditions pursuant to SEPA and its general
police powers.
III. BRINNON GROUP'S CHALLENGES TO THE ORDINANCE
!l 19 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
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remedies by filing a petition for review with the Board in order to address the County's alleged GMA and SEPA
violations.
!120 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
fl 2l 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*797
to Brinnon Group's challenge involving the PEA, the Board noted:
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 satisfring 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.
122 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
fl 23 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.
\24 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 I15. 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.
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fl 25 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
\26Inthis 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.tal
*798 ANALYSIS
I. JUDICIAL REVIEW, DEFERENCE, AND BURDEN OF PROOF IN
GMA CASES
\27 The GMA provides counties with broad discretion to develop comprehensive plans. King Cnty. v. Cent. Puget
Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543,567,14 P.3d 133 (2000). A county's discretion, however, "is
bounded ... by the goals and requirements of the GMA." King Cnty., 1.42Wash.2d at 561, l4 P.3d 133. 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), (l 1).
fl 28 The Board adjudicates GMA compliance and may invalidate noncompliant comprehensive plans and
development regulations. Lewis Cnty. v. W. l4/ash. Growth Mgmt. Hearings Bd., 157 Wash.2d 488,497,139 P.3d
1996 (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 36.704.300
(3)(b).
fl 29 The Board presumes that a county's comprehensive plan is valid upon adoption. RCW 36.70A.320(l).
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 Wash.2dat497,l39 P.3d 1096 (quoting RCW
36.70A.320(3)); see a/so RCW 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 Wash.2d
329,340-41, 19g_q,3d 3q (2008).
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fl 30 The Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review of a growth board's
actions. Thurston Cnty., 164 Wash.2d at341,190 P.3d 38; 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 Wash.2d at 341, 190 P.3d 38; 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 Wash.App.743,760,235 P.3d812 (2010) (quoting
Superior Asphalt & Conuete Co. v. Dep't of Labor & Indus., 112 Wash.App.291,296,49P.3d135 (2002)),review
denied, No. 85085-2, _Wash.2d _, _P.3d _ (Wash. Jan. 4,2011). Thus, like the Board, we 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 Wash.2d 224,238, i 10 P.3d I 132 (2005); RCW 36.70A.320(3); See a/so RCW
36.70A.320r.
!f 3 1 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 *799 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 34.0s.570(3)
fl 32 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., 713 Wash.App. 615, 622,5,,3,,,P^.3d 1-0..11 (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 Point Ass'n, 148 Wash.2d 1, 8, 57 P.3d 1156 (2002).
II. JEFFBRSON COUNTY'S COMPLIANCE WITH ITS PUBLIC
PARTICIPATION PROGRAM
']f 33 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.
fl 34 A county planning under the GMA must establish a "public participation program identifuing 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,
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however, does not invalidate a comprehensive plan "if the spirit of the program and procedures is observed."[s] RCW
36.70A.t40
fl 35 In a nutshell, Brinnon Group argues that the ordinance included significant "changes" from the Commission's
recommendation and, 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.
(b) An additional opportunityfor public review and comment is not required under (a) of this subsection
if:
(i) An environmental impact statement has been prepared under chapter 43.2LC RCWfor 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).
fl 36 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(2XbXi),
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 *800 County violated its public participation program lack merit.
A. COMPREHENSIVE PLAN TEXT AMENDMENT
fl 37 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 fwo 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
fl 38 In addition to the general GMA standard of review, we also review questions of statutory interpretation de
novo. Woods v. Kittitas Cnty., 162 Wash.2d 597, 607, 174 P..)d ?5_. (2007). Our primary goal is to determine and give
effect to the legislature's intent. Woods, 162Wash.2dat607,174P.3d25. "[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
Wash.2d at 607, 174 P.3d25 (quoting Dep't of Ecologt v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4
(2002)).
2. PEA Requirements
fl 39 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.
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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 Wash.2d 139,143,492P.2d 547 (1972).
fl 40 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 Wash.2d 345, 354, 88_4 P .2d 13-26 (1994)
(internal quotation marks omitted) (alteration in original) (quoting Ellensburg v. State, 1 I 8 Wash.2 d 709,713, 826
P.2d l08l (1ee2))
!J41 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 GMAnot the PEAincludes the provision in RCW
36.70A.035(2XbXi) 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 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.
fl 42 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.
fl 43 The PEA also establishes that when the BOCC "considers a change in the recommendations of the planning
agency to be necesSory," the BOCC may "initiate consideration" of a comprehensive plan amendment. *801 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).
3. Boardts Conclusion
fl 44 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 at26l4. Accordingly, the BOCC did not violate public participation requirements by adopting the
text amendment.
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4. Text Amendment Analysis
fl 45 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 1 8 hole golf course, and commercial space
along the marina and at the golf course." AR at 1550.
!f 46 Brinnon Group characterizes the BOCC's adopted text amendment as a "change[] to the [Commission's]
recommended MPR amendment." Appellant's Br. at39. Accordingly, in its view, RCW 36.70.430 prohibited the
BOCC from adopting the text amendment without first referring this "change" to the Commission for a public
hearing and the Commission's subsequent report and recommendation.
!|47 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 36.704.035(2XbXi), 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 36.704.035
(2XbXi). 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.
fl 48 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 public comment in the *802 draft EIS.I61 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.
B. BOCC's MAP AMENDMENT
fl 49 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.
!f 50 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.
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'l|f 51 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.
fl 52 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 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
!f 53 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.
fl 54 The Board concluded that the BOCC's additional conditions did not violate the GMA's or the county eode's
public participation requirements. See RCW 36.70A.140; *803 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 thata change to the Commission's amendment recommendation is necessary. See JCC 18.45.080
(2Xb). 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 at2616-17.
!f 55 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 environmental
impacts." RCW 43.21C.060. SEPA does not require the County to remand these conditions for public comment. See
RCW 43.21C.060.
D. COMMISSION'S FAILURE TO SIGN MAP AMENDMENT
tl56 Brinnon Group next argues that the Commission violated the PEAspecifically, RCW 36.70.400because 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.
!J 57 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
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'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 at2623.
fl 58 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.
E. EFFECTIVE NOTICE
!J 59 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.
fl 60 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
36.704.035(l). The county code also mandates "public meetings after effective notice." JCC 18.45.010(2).
fl 61 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 *804 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 at2620. 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.
fl 62 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
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(2xb)(i) since the information in the draft EIS clearly reflected the BOCC's changes.
III. INTERNAL CONSISTENCY IN THE COMPREHENSIVE PLAN
fl 63 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.
fl 64 Under the GMA, a comprehensive plan must be "an internolly consistent documenr and all elements shall be
consistent with the future land use map." RCW 36.70A.070 (emphasis added). This requirement means that differing
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parts of the comprehensive plan "must fit together so that no one feature precludes the achievement of any other."
WAC 365-196-500.t81 A comprehensive plan may include a subarea plan that is "consistent with the comprehensive
plan. " RCW 36.704.080(2).
fl 65 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 modifr 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
fl 66 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.
*805 IV. BUILDING INTENSITIES
fl 67 Brinnon Group argues that the County violated RCW 36.70A.070(1) bV 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 include population densities, building intensities, and
estimates of future population growth.
We reject Brinnon Group's argument.
A. BOARD'S CONCLUSION
fl 68 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 at2633. 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 INTBNSITIBS ANALYSIS
!J69 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
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A. BOARD'S CONCLUSTON
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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. "
fl 70 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(3Xd), (4Xd). 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.
fl 71 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 at371. 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.
'lf 72 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
!f 73 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 *806 with the Board that the County complied with SEPA.
A. REASONABLE ALTERNATIVES IN THE EIS
tf 74 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 altemative can be 'at lower
environmental cost."' Appellant's Br. at 49. We disagree.
L. Standard of Review
J[ 75 The Board has jurisdiction over petitions claiming that a county's comprehensive plan actions are not SEPA-
compliant. RCW 36.70A.280(lXa). We review an EIS's "adequacy"i.e., the legal sufficiency of the environmental
data in the EISde novo. King Cnty. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 138 Wash.2d 16l, 183,979
P. 374 (1999); Klickitat Cnty. Citizens Against Imported Waste v. Klickitat Cnty., 122Wash.2d619,633, 860 P.2d
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390 (1993). We assess the EIS's adequacy under "the rule of reason." Citizens Alliance to Protect Our Wetlands v.
City of Auburn, 126 Wash.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 Wash.2d275,311, 1,97 e.3d.J 153. (2008) (quoting Klickitat Cnty. Citizens Against Imported Waste,
122 Wash.2d at 633,860 P.2d 390). We accord substantial weight to an agency's determination of EIS adequacy.
See, RCW 43.2lc.O9}ile)accord King Cnty.,138 Wash.2d at 183, 979 P.2d374.
2. EIS's Alternatives
fl 76 SEPA requires an EIS to include a detailed discussion of altematives to the proposed action. RCW 43.2IC.030
(cXiii). The required discussion of alternatives "is of major importance, because it provides a basis for a reasoned
decision among alternatives having differing environmental impacts." Weyerhoeuser v. Pierce Cnty., 124Wash.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
te7 -tt-440(sxb).
177 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.
fl 78 The EIS proposed three altematives. 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-ll-440(5)(b) because it did not feasibly attain or approximate the proposal's objective.
fl 79 We conclude that the final EIS contains evidence that the other two altematives, the Brinnon Subarea Plan and
hybrid altematives, 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 *807 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 respectsfor example, increased impervious surfaces and
increased development intensity west of Highway 101our Supreme Court has approved EIS alternatives that "present
[] greater impacts in some areas, and fewer impacts in others." King Cnty.,138 Wash.2d at 185, g7g P.2d374.lr0l
'1T 80 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 altemative that achieved the proposal's objectives at a lower environmental cost. Because the final EIS
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-l-440(5)
(b).
B. FAILURE TO CITE SPECIFIC POLICIES IN THE ORDINANCE
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fl 81 Brinnon Group relies on WAC 197-11-660(1) to zugue that the County violated SEPA by failing to cite a
specific policy to justi$ 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
fl 82 We apply the APA's error of law standard to an agency's interpretation of a statute. Pub. Util. Dist. No. I of
Pend Oreille Cnty. v. Dep't of Ecologt, 146 Wash.2d778,790,51P.3d744 (2002) (citing RCW 34.05.570(3Xd)).
We interpret agency regulations as if they were statutes. Roller v. Dep't of Labor & Indus., 128 Wash.App. 922,926,
117 P.3d 385 (2005) (quoting Cobra Roofing Serv., Inc. v. Dep't of Labor & Indus., 122 Wash.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. I of Pend Oreille Cnty., 146 Wash.2d at790, 5l P.3d 744.
2. BOCC's Conditions in the Ordinance
'tT 83 A county may impose conditions on a proposed development in order to "mitigate specific adverse
environmental impacts." See RCW 43.21c.060;ltt)City of Olympia v. *808 Drebick,156 Wash.2d28g,30l, 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-ll-660(1Xa), (b). Additionally, "[t]he decision maker shall cite the agency SEPA policy that is the basis
of any condition." WAC 197-11-660(1Xb).
fl 84 Here, the BOCC included 30 conditions of approval in finding 63 of the ordinance. In doing so, the BOCC
referenced JCC 18.40.770, aprovision that incorporates SEPA's legislative purposes as the basis for the county's
exercise of authority.tl2l 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-ll-660 did not require the
County to "cite the supporting SEPA policy after each and every condition of approval." AR at2636. 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.
fl 85 The plain language of RCW 43.21C.060 and WAC 197-ll-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-ll-660(1Xa). Here, the County based its written conditions on the general SEPA policies in
RCW 43.21C.020, a statutory section that the County adopted by reference in JCC 18.40.770.
!f 86 Brinnon Group relies on Levine v. Jffirson Cnty., 116 Wash.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. I l6 Wash.2d at 581,807 P.2d363
Levine does not require the County to cite a specific SEPA policy for each condition of approval in the ordinance.
VI. MOTION FOR RECONSIDERATION
fl 87 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 Wash.App. 306, 321, 945 P .2d 727
(1997). Here, the trial court's denial was proper.
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fl 88 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 (i) the Brinnon Subarea Plan and hybrid
alternatives did not violate SEPA, (2) the County could modiff the Brinnon Comprehensive Plan Land Use
Designations map during the zoning phase, and (3) the PEA did not require the Commission to submit the exact
wording of the text amendment to the BOCC.
fl 89 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.
*809 VII. CLALLAM COUNTY SUPERIOR COURT'S DISMISSAL
OF BRINNON GROUP'S COMPLAINT
fl 90 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
fl 91 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 Wash.2d783,787,966
P.2d 891 (1998) (citing Thomsenv. KingCnty.,39 Wash.App.505,5l4-15, 694P.2d40 (1985)).
n92 A constitutional writ of certiorari is not a matter of right but, rather, is discretionary with the court. Torronce,
136 Wash.2 d at 787 , 966 P .2d 891. 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 Wash.2d at 787-88,966P.2d891. A constitutional writ of certiorari is unavailable, however,
if the reviewing court's power to grant relief from an agency order under the APA will provide complete and full
relief. See Torrance, 136 Wash.2d at791,966P.2d891; 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
fl 93 Brinnon Group correctly notes that RCW 36.70A.280(1;tt+t 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.tlsl We disagree.
1. The PEA's Applicability to the County's Action
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fl 94 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 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
36.70.43}violated the "spirit" of the County's public participation program under the GMA.
2. The Board's Decision
fl 95 As we noted above, the Board's final decision openly acknowledged that the Board *810 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
fl 96 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. at3 n.22. This strained argument is meritless.
'!l 97 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.
!f 98 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 folly 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.tl6I
fl 99 We deny Brinnon Group's request for attorney fees. We affirm the judgments of the Clallam and Thurston
County superior courts.
We concur: ARMSTRONG and VAN DEREN, JJ.
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'BRINNON GROUP v. Jefferson County, 245 P.3d789 - Courtlistener.com Page22 of24
NOTES
[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.
[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.
[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 l0 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)(a) 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.
[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
Wash.2d 726,903 P.2d 455 (1995). We decline to do so.
[6] The following specific details appear in the BOCC's text amendment but not in the Commission's
recofilmendation:
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.
https://www.courtlistener.com/opinionl2513546/brinnon-group-v-jefferson-county/1U912016
BRINNON GROUP v. Jefferson County,245P.3d789 - Courtlistener.com Page23 of24
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
[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.
[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. XX-XX-XXX
(Feb. 19,2010).
[9] Washington courts have not explored the interplay between the rule of reason and RCW 43.21C.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, IRCW 43.2IC.0901 reduces the level ofjudicial scrutiny.").
[10] In King County, the court considered the EIS for a proposed2,250 unit housing development on a 1,000 acre
parcel. I 3 8 Wash.2 d at 172-73, 979 P .2d 37 4. The court concluded that a less dense one-unit-per-acre alternative
was reasonable under WAC 197-ll-440(5)(b). 138 Wash.2d at 185, ?7-9*P.2d3_7_+.. 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 Wash.2d at 185, 979 P.2d374.
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. at29
(quoting King Cnty., 138 Wash.2d at 184, 979 P.2d374). While the King County court indeed described the one-
unit-per-acre altemative as "present[ing] intermediary impacts" between the proposal and the no action altemative,
the court approved the alternative because it had "fewer impacts" in some areas. 138 Wash.2d at 184-85 ,979 P.2d
374.
[11] RCW 43.21C.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-ll-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."
[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 thata statutory writ is not available for legislative decisions like comprehensive plan amendments)
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I
^BzuNNON GROUP v. Jefferson County, 245 P.3d789 - Courtlistener.com Page24 of24
[1a] 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 36.7 0 A.280( 1 Xa) (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
(3Xb).
[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 altemative remedy.
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