HomeMy WebLinkAboutSMA GMA 8-22-2008 Futurewise Anacortes
.
.
.
c-c '. ALL De D
2~
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT (DCD)
621 Sheridan Street, Port Townsend, WA 98368
AI Scalf, Director
Unified Development Code Interpretation
Date:
August 22, 2008
Issued by:
Jefferson County DCD Planning Manager/UDC Administrator
Affected:
All properties within Jefferson County
Subiect:
Relationship between Growth Management Act (GMA) and Shoreline
Management Act (SMA) jurisdiction
Background & Analvsis:
In accordance with Article VI, Chapter 18.40 ofthe Unified Development Code (UDC),
Jefferson County Code (JCC 18.40.350) this interpretation of the Unified Development Code is
intended to clarify conflicting or ambiguous wording, interpret proper classifications of a use, or
interpret scope or intent. This is an administrator-initiated interpretation as allowed by JCC
18.40.360(1). The "Factors for Consideration", as identified in JCC 18.40.360(4) and listed
below, were considered in making this UDC interpretation, including applicable goals and
policies of the Jefferson County Comprehensive Plan:
(a) The applicable provisions of this code, including its purpose and context;
(b) The implications of the interpretation for development within the county as a whole,
including the precedent the interpretation will set for other applicants; and
(c) Consistency with the Jefferson County Comprehensive Plan and other relevant
ordinances and policies.
Applicable Provisions
Applicable provisions ofthe Jefferson County UDC include:
. JCC 18.15, an earlier Critical Areas Ordinance (eCAO) - Effective January 16,2001 as
per the Washington State Growth Management Act (GMA; RCW 36.70A) to protect
G.V'LANNING\JCC - UDC - Other CodeslUDC MASTER FOLDER1UDC Code IntelpretatlonslB-22-OB GMA-SMA code interplGMA-SMACode Intelpfetaoon 8-22-0BFINAL.doc
Page 10f3
.
.
.
environmentally sensitive features such as critical aquifer recharge areas, frequently
flooded areas, geologically hazardous areas, fish & wildlife habitat conservation areas,
and wetlands; and applicable to any project permit application deemed "substantially
complete" by DCD before March 17,2008;
. JCC 18.22 Critical Areas Ordinance (CAO) - Adopted March 17,2008 as per the
Washington State Growth Management Act (GMA; RCW 36.70A) to protect
environmentally sensitive features such as critical aquifer recharge areas, frequently
flooded areas, geologically hazardous areas, fish & wildlife habitat conservation areas,
and wetlands; and
. JCC 18.25 Shoreline Master Program (SMP) - Adopted March 7, 1989 (including
subsequent amendments through February 6, 1998) as per the Washington State
Shoreline Management Act (SMA; RCW 90.58) to encourage water-dependent uses and
promote public access while protecting shoreline natural resources and ecological
functions.
Implications
The implications of this interpretation include:
· CAO provisions, including regulations and protections standards, will not apply within
shoreline jurisdiction; and
. Use and development activities within shoreline jurisdiction will be governed solely by
the SMP.
Consistency
This interpretation is consistent with the Jefferson County Comprehensive Plan as it continues to
allow for use, development and protection of environmentally sensitive areas and shoreline
resources through implementation of the UDC.
Code Interpretation:
Effective 7/31/2008, in compliance with the Washington State Supreme Court decision No.
80396-0 titled Futurewise. et al. v. WA State CrEDo WA State Ecology v. WWGMHB. Citv of
Anacortes, Jefferson County will not and does not implement JCC 18.22 CAO provisions within
the SMP jurisdictional area defined by JCC 18.25.
Effective 7/31/2008, in compliance with the above-described decision ofthe Washington State
Supreme Court, Jefferson County will implement only JCC 18.25 within the SMP jurisdictional
area although JCC 18.40.360(5) would otherwise require the County to apply a more restrictive
and equally applicable code provision found elsewhere in the UDC, Title 18 JCC.
G:\PLANNINGWCC - UDC - Other C()(}esIUDC MASTER FOLDERlUDC Code Interpreta6onsl8-22-1J8 GMA-SMA code interplGMA-SMACode Interpretation 8-22-08FINAL.doc
Page 20f 3
.
.
.
This interpretation applies to:
. All permit applications that are substantially complete and have not received a permit
decision; and
. All permit applications received since July 31, 2008.
Applicability:
In accordance with JCC 18.40.380, this code interpretation will remain in effect unless and until
the administrator issues a written rescindment or the code is formally amended (as per JCC
18.45.090) to supersede this interpretation. This interpretation may be enforced in the same
manner that any provision of the code is enforced.
Appeal:
As outlined in JCC 18.40.390, a code interpretation may be appealed to the Hearing Examiner
within fourteen (14) calendar days of the decision using the process for appeals of Type II permit
decisions as set forth in JCC 18.40.330.
Dated this 22nd day of August, 2008.
oi~~~ L~l~A,
Stacie Hoskins, Planning Manager/UDC Administrator
Attached:
W A Supreme Court Decision No. 80396-0
Jefferson County Prosecutor Office Analysis of Decision No. 80396-0
G.1PLANNING\JCC - UDC - Other CodeslUDC MASTER FOLDEF?\UDC Code Interpretetions\8-22-<J8 GMA-SMA code interplGMA-SMACode Interpretetion 8-22-<J8FINALdoc
Page 30f 3
ATTACHMENT'
.
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
FUTUREWISE, EVERGREEN )
ISLANDS, and SKAGIT AUDUBON )
SOCIETY, )
)
Respondents, ) No. 80396-0
)
WASHINGTON STATE DEPARTMENT ) En Bane
OF COMMUNITY, TRADE AND )
ECONOMIC DEVELOPMENT and )
WASHINGTON STATE DEPARTMENT ) Filed July 31, 2008
. OF ECOLOGY, )
)
Respondents/Intervenors, )
)
v. )
- )
WESTERN WASHINGTON GROWTH )
MANAGEMENT HEARINGS BOARD, )
an agency of the state of Washington; and )
CITY OF ANACORTES, )
)
Petitioners, )
)
and )
)
WASHINGTON PUBLIC PORTS )
ASSOCIATION, )
)
Intervenor. )
)
.
No. 80396-0
.
lM. JOHNSON, l-In 1971, Washington voters passed the Shoreline
Management Act of 1971 (SMA), chapter 90.58 RCW. The SMA meant to
strike a balance among private ownership, public access, and public
protection of the State's shorelines. RCW 90.58.020. Starting that year,
local governments were required to create shoreline master plans governin~.
the use of shorelines and the Department of Ecology (Ecology) was given
authority to approve plans before they became effective. RCW 90.58.070(1).
The plans must be updated every seven years to make sure they still comply
with the law. RCW 90.58.080(4). The city of Anacortes has a shoreline
master plan, which Ecology approved in 1977. Ecology has approved
Anacortes's periodic updates several times since then, most recently in 2000.
Each time, both Anacortes and Ecology held public hearings and made
written findings, concluding that the plans adequately protected shorelines in
Anacortes.
.
In 1990, the legislature passed the Growth Management Act, chapter
36.70A RCW (GMA). Its goal is to coordinate land use planning across the
state. RCW 36.70A.OIO. TIle GMA has substantial requirements when
2
.
..
No. 80396-0
.
.
actions might affect areas defined as "critical areas." RCW 36.70A.172(l).
Among other things, the GMA was amended in 1995 to require local
governments to designate and protect critical areas using the "best available
science"-a benign term with often a heavy price tag. Id The SMA, with its
goal of balancing use and protection, is less burdensome.
The GMA also divided the state into thirds and created three
administrative boards to hear appeals under the GMA. RCW 36.70A.250. In
2003, the Central Puget Sound Growth Management Hearings Board decided
that the GMA retroactively applied even to those critical areas inside
shoreline management areas long managed through shoreline master plans
properly adopted, amended, and approved by Ecology under the SMA.
Everett Shorelines Coal. v. City of Everett, No. 02-3-0009c (Cent. Puget
Sound Growth Mgmt. Hr'gs Bd. Jan. 9, 2003). This board decision so
conflicted with the law and the established practices that the legislature acted
the next session by enacting a law explicitly rejecting that board's
interpretation. Engrossed Substitute H.B. 1933, 58th Leg., Reg. Sess. ~ 1 (1)
(Wash. 2003) (ESHB 1933). "The legislature intends that critical areas
within the jurisdiction of the [SMA] shall be governed by the [SMA] and that
.
3
No. 80396-0
.
critical areas outside the jurisdiction of the [SMA] shall be governed by the
[GMA]." Id. ~ 1(3). We hold that the legislature meant what it said. Critical
areas within the jurisdiction of the SMA are governed only by the SMA.
I
The city of Anacortes has long had a shoreline master plan for its
shoreline area (last amended and approved in 2000). Anacortes adopted new
standards under its GMA plan for other areas, including critical areas.
Unfortunately, it is now common that litigation often follows actions by local
governments relating to land use. In this litigation, the Western Washington
Growth Management Hearings Board decided that the SMA continued to
.
cover Anacortes's plan (rather than the GMA amendments), following the
clear language of ESHB 1933. When litigant Futurewise appealed, the
superior court disagreed and held that the GMA retroactively applies to
critical areas within the shoreline master plan until the next time Ecology
considers and approves an amended shoreline master plan. I Anacortes
appealed, and we granted direct review.
II
I As is noted infra, Ecology has acted to approve only three (amended) county plans since
2003.
4
.
No. 80396-0
.
.
The only issue is whether the legislature meant the GMA to apply to
critical areas in shorelines covered by shoreline master plans until Ecology
has approved a new or updated shoreline master plan. The legislature's clear
intent as quoted above reads, "critical areas within the jurisdiction of the
[SMA] shall be governed by the [SMA]." ESHB 1933 ~ 1(3).
Ecology principally relies on the language ofESHB 1933 as codified,
which reads: "As of the date the department of ecology approves a local
government's shoreline master program. . . the protection of critical areas. . .
shall be accomplished only through the local government's shoreline master
program. . . ." RCW 36.70A.480(3)(a). The tense of "approves" sounds
prospective, but only at first blush. This is the same verb tense as "[t]he
legislature intends," and the legislature surely did not mean its statutory
correction would solve the misreading of the statute someday in the future.
The cure was immediate (indeed retrospective). In the same way, the
legislature uses "[a]s of the date the department of ecology approves" to refer
to the date of approval of each plan. In Anacortes' s case, that date was in
2000.
The subsections of ESHB 1933 surrounding this language support this
.
5
No. 80396-0
.
reading. As codified, the very next subsection reads: "Critical areas within
shorelines of the state. . . and that are subject to a shoreline master program
adopted under applicable shoreline guidelines shall not be subject to the
procedural and substantive requirements of [the GMA]." RCW
36.70A.480(3)(b). The subsection after that reads: "[The GMA] shall not
apply to the adoption or subsequent amendment of a local government's
shoreline master program." RCW 36.70A.480(3)(c). None of this is
prospective or delayed in effect. The legislature's intent was that the SMA,
not the GMA, should cover shorelines.
ESHB 1933 was a rebuke to one board decision that misread the law.
Courts must not repeat or extend one hearings board's mistake, especially
when the legislature took only four months to adopt legislation clarifying that
the board had construed the law incorrectly.
SMA coverage of shorelines has long protected the environment.
Anacortes has had a shoreline master plan protecting its shorelines since
1977, which was adopted by Anacortes' s city council and approved by
Ecology. Hearings, extensive study and analysis, and public input surrounded
each step. Among other things, before enacting the plan, Anacortes gave
.
6
.
No. 80396-0
.
.
.
7
No. 80396-0
.
legislative intent.
Finally, Ecology's position would place local governments and
landowners in an untenable position. Anacortes has long complied with the
law and has a shoreline master plan in place. Landowners have relied on this
plan when making long-term decisions about their property. Anacortes and
its residents have also made long-term reliance. If we were to hold as
Ecology urges, both Anacortes and the landowners would spend significant
time and money complying with the GMA and the.SMA, until Ecology
ultimately approves a new shoreline master plan. This contradicts the fmality
and certainty that is so important in land use cases. See Samuel's Furniture,
Inc. v. Dep't of Ecology, 147 Wn.2d 440,459,54 P.3d1194 (2002).
The trial court repeated the mistake of one errant hearings board when
it held that the GMA controls procedures inside shorelines until new SMA
plans are formulated and approved. The legislature clearly rejected that
holding. Deciding as Ecology urges would contradict the clear language and
intent of the legislature in ESHB 1933 and would add substantial costs to
citizens and local governments. Ironically, legitimate conservation
management efforts would be frustrated and encumbered. The decision of the
.
8
.
No. 80396-0
.
trial court is reversed, and the decision of the Western Washington Growth
Management Hearings Board upholding Anacortes is reinstated. 2
.
.
2 After oral argument, Ecology filed a statement of supplemental authority. Anacortes
filed a motion to strike the statement, claiming it improperly contains argument, RAP
10.8, and that it cites to legal authorities that are not new. We deny the motion, both
because the statement does not contain argument and because nothing in the rule limits its
application to newly created law.
9
No. 80396-0
.
AUTHOR:
Justice James M. Johnson
WE CONCUR:
Justice Charles W. Johnson
Justice Barbara A. Madsen, result
onlv
Justice Richard B. Sanders
Bobbe J. Bridge, Justice Pro Tern.
.
10
.
.
Futurewise, et al. v. W. Wash. Growth Mgmt. Hr'gs Rd., et al.
No. 80396-0
CHAMBERS, J. (dissenting) - The majority is unnecessarily critical of the
Department of Ecology (Ecology) and the Growth Management Act (GMA),
chapter 36.70A RCW. The majority's conclusion today is clearly driven by the
belief that the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, is
wiser and more attractive than the GMA. This belief leads the majority to its overly
simplistic and erroneous conclusion that because the city of Anacortes had a
shoreline master plan in place in 2003, it had met its legal obligations to protect the
. critical areas of its shorelines, even though it had not been required to meet the
relevant legal standards when designing that plan. Admittedly, harmonizing the
SMA and the GMA is a challenge, both for local governments and this court.
However, I must dissent because our role when interpreting statutes, which is all we
are called upon to do today, is to implement the intent of the legislature. It is not to
evaluate the merits of the legislation. We best achieve the goals of the legislature by
interpreting its plain words in context. Dep't of Ecology v. Campbell & Gwinn,
LLC, 146 Wn.2d 1,9-10,43 P.3d 4 (2002). When we read both acts together, it is
clear our legislature intended to transfer management of critical areas in shorelines
from the GMA to the SMA in an orderly, measured process and upon the approval
of shoreline master plans that specifically protect critical areas.
The people of this state enacted the SMA in 1971, and 19 years later our
.
Futurewise, et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., et al., No. 80396-0
.
legislature followed up with the GMA. Laws of 1971, 1st Ex. Sess., ch. 286; Laws
of 1990, 1 st Ex. Sess., ch. 17. Under both acts, local governments manage the use
of local land in compliance with state law and in cooperation with the State. RCW
36.70A.070, .106, .130, .250 (GMA); RCW 90.58.050, .070, .080, .090 (SMA).
After much study, the legislature made its fIrst attempt to coordinate the two acts
fIve years after enacting the GMA. Laws of 1995, ch. 347. In due course, a local
government's attempt to plan under the coordinated acts was litigated and came
before a growth management hearings board. See Everett Shorelines Coal. v. City
of Everett, No..02-3-0009c, at 3 (Cent. Puget Sound GrowthMgmt. Hr'gs Bd. Jan.
9,2003). The board concluded that shorelines of statewide signifIcance under the
SMA were also categorically critical areas under the GMA, and thus, shoreline
management often had to comply with both acts. Id. at 17.
In response, the 2003 legislature amended both the SMA and the GMA.
Engrossed Substitute H.B. 1933, 58th Leg., Reg. Sess. (Wash. 2003) (hereinafter
ESHB 1933). I completely agree with the majority that the overarching legislative
purpose was expressed clearly:
.
The legislature intends that critical areas within the jurisdiction of the
shoreline management act shall be gove!lled by the shoreline
management act and that critical areas outside the jurisdiction of the
shoreline management act shall be governed by the growth
management act.
ESHB 1933, 9 1(3). But the legislature did much more than merely declare that
critical areas in shorelines were to be managed under the SMA as the majority
2
.
.
.
.
Futurewise, et al. v. W Wash. Growth Mgmt. Hr'gs Bd., et al., No. 80396-0
suggests. It also raised the bar for that management, requiring local governments to
consider the goals and policies of the SMA when planning under the GMA. ESHB
1933,9 5(1) (codified as RCW 36.70A.480(I)). It directed Ecology to approve
only those shoreline master programs that provide at least as much protection to
relevant critical areas as the local critical areas ordinances would have. ESHB
1933, 9 3(4) (codified as RCW 90.58.090(4)). And, most importantly for us today,
it tells us when that transfer should take place:
As of the date the department of ecology approves a local
government's shoreline master program adopted under applicable
shoreline guidelines, the protection of critical areas as defined by [the
GMA] within shorelines of the state shall be accomplished only
through the local government's shoreline master program and shall not
be subject to the procedural and substantive requirements of this
chapter.
RCW 36.70A.480(3)(a) (emphasis added). This language is prospective. Cf In re
Estate of Burns, 131 Wn.2d 104,110,928 P.2d 1094 (1997). As of the date
Ecology approves a municipal shoreline master program adopted under shoreline
guidelines that protect critical areas, I management of critical areas within shorelines
shall be done under the SMA, not the GMA. If the legislature intended the transfer
from the GMA to the SMA to occur immediately, it was fully capable of saying so.
I The legislature was well aware that there were no shoreline guidelines in place when it enacted
ESHB 1933. See. e.g.. ESHB 1933, ~ 1 (l). This was because Ecology's initial attempt to draw
these guidelines was struck down by the Shorelines Hearings Board and new regulations were not
substantially in place until December 2003. See Assoc. of Wash. Bus. v. Dep't of Ecology. SHB
No. 00-037, Order Granting and Den. Appeal (Shorelines Hearings Board Aug. 27, 2001),
available at http://www.eho.wa.gov/searchdocumentsI2001 %20archive/shb%2000-
037%20final.htm; see a/so ch. 173-26 WAC.
3
Futurewise, et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., et al., No. 80396-0
.
Instead, it made that transfer contingent on a future event; Ecology's approval of a
revised shoreline master program approved wider applicable shoreline guidelines.
While I believe that the plain language permits no other interpretation, this
interpretation also fits best within the larger statutory backdrop. Again, the 2003
legislature required, for the frrst time, that shoreline master programs protect critical
areas as defined by the GMA. ESHB 1933, ~ 3(4) (codified as RCW
90.58.090(4)). ESHB 1933 also imposed two new substantive requirements on
Ecology before Ecology could approve a shoreline master program. Now, Ecology
can approve only shoreline master programs that (1) are consistent with RCW
90.58.020 and applicable shoreline guidelines and (2) provide protection that is "at
least equal to that provided by the local government's critical areas ordinances."
ESHB 1933, ~ 3(4) (codified as RCW 90.58.090(4)). These requirements were not
in place when Anacortes' s existing shoreline master program was approved. The
legislature also expanded the reach of the SMA with ESHB 1933 to include "land
necessary for buffers for critical areas, as defined in chapter 36.70A RCW, that
occur within the shorelines of the state." ESHB 1933, ~ 2(2)(f)(ii) (codified as
RCW 90.58.030(2)(f)(ii)). That is a significant expansion ofthe land under the
jurisdiction of the SMA and strong reason to believe that the legislature intended the
transfer to happen only after municipalities had the opportunity to revise their GMA
and SMA plans with these statutory changes in mind.
Whether we look only at the timing provision ofRCW 36.70A.480(3)(a) or at
the larger statutory scheme, we should reach the same conclusion. The 2003
.
4
.
.
.
.
Futurewise, et al. v. W. Wash. Growth Mgmt. Hr'gs Rd., et al., No. 80396-0
legislature intended to transfer protection of the relevant critical areas from the
GMA to the SMA as municipalities enact, and Ecology approves, new shoreline
master programs. Deciding otherwise does violence to the legislature's clearly
expressed purpose that management of critical areas under the SMA take on some
of the features of management under the GMA. Since the majority reaches a
contrary conclusion, I respectfully dissent.
AUTHOR:
Justice Tom Chambers
WE CONCUR:
Chief Justice Gerry L. Alexander
Justice Susan Owens
Justice Mary E. Fairhurst
5
ATTACHMENT 2
Futurewiset et al v. WA State DCTEDt WA State EcoloJ!V v WWGMHBt Citv of Anacortes
No. 80396-0, State Supreme Court, decision published 7/31/2008
.acts: The City of Anacortes had a Shoreline Master Program ("SMP") last approved by Ecology
In 2000. Subsequent to that date Anacortes adopted new GMA-derived development regulations but
continued to apply its SMP rules to GMA 'critical areas' that happened to also be within shoreline
jurisdiction. Futurewise appealed to the Western W A Growth Mgmt. Hearings Bd., asserting that until
Anacortes got another SMP approved by Ecology the more stringent 'critical areas' rules it adopted via
its GMA-derived authority must apply to 'critical areas' that are also within the shoreline jurisdiction.
Decisions below: The WWGMHB ruled for Anacortes stating the SMP and SMA applied to 'critical
areas' inside the shoreline jurisdiction, not the GMA. The trial court reversed the Hearings Board and
the dispute went on 'direct review' to the Supreme Court because it was/is a disputed issue of statewide
interest.
Issue: Does the SMA or the GMA control the level of regulation that local governments such as cities
and counties must apply to 'critical areas' (a GMA term of art) that happen to also be within the
shoreline jurisdiction?
Held: By a 5-4, majority, with the 5th Justice of the majority concurring only with the result, the State
Supreme Court held that the SMA applies.
Analysis: Both sides of this decision concur that the Legislature has attempted to integrate the SMA
and the GMA since, for example, the SMA goals are now the 14th goal 'of the GMA and Ecology's
Acision on whether to approve a particular SMP must be appealed to the Hearings Board. They also
"gree that at some point the SMA (and the Ecology rules that are guidelines for any jurisdiction writing
an SMP) will control the regulations that will apply to 'critical areas' within the shoreline jurisdiction.
The sides differ on when the SMA (and the related SMP) take over, specifically they disagree on
the meaning ofRCW 36.70A.480(3)(a). The majority argued that in 2003 the Legislature, upset with
the Central Puget Sound Growth Mgmt. Hearings Board decision in Everett that made the GMA
superior to the SMA when it came to 'critical areas' within SMA jurisdiction, expressly stated that the
SMA governed 'critical areas' inside the shoreline jurisdiction and only outside the jurisdiction did
GMA apply. Thus, if a local jurisdiction had in place in 2003 a valid SMP, then only the SMA would
apply in these circumstances where, at first glance, SMA and GMA jurisdiction seemingly overlapped.
Anacortes held a valid SMP in 2003 and thus only the SMA would apply concluded the majority. The
majority also pointed to text in the GMA at RCW 36.70A.480(3)(b) that said with limited exceptions
'critical areas' in the shoreline jurisdiction "shall not be subject to the procedural and substantive
requirements of the [GMA]."
However, the dissent concluded that the SMA does not become paramount until such time as
two events occurred, specifically 1) Ecology has in place shoreline guidelines that were promulgated in
accordance with the rules that govern how an agency establishes it rules and 2) Ecology approves the
SMP of a local jurisdiction. Until both those events occur, the dissent argued, the GMA continues to
apply. Why? Presumably because the SMA already includes text at RCW 90.58.090(4) stating that
any regulatory protection in an SMP for 'critical areas' inside the SMP jurisdiction must be as
6Dtective as the GMA rules that protect upland 'critical.areas.' Nor did Ecology have in place valid
~reline guidelines when the Everett decision came down meaning the preconditions for transfer to
full SMA-derived authority could not occur at that time.
~refferson County Prosecutor Office Analysis of Decision #80396-0
8/13/08