Chapter § 13.4 Initiating Review-Threshold Jurisdictional Issues

• Jurisdiction: Washington

§13.4 Initiating Review—threshold jurisdictional issues

Threshold jurisdictional aspects of initiating review before the GMHB, including subject matter jurisdiction, standing, and filing procedures, are discussed below.

(1) Subject matter jurisdiction

The GMA identifies the limits of the GMHB's subject matter jurisdiction. Pursuant to RCW 36.70A.280, the board has authority to determine whether a local jurisdiction's comprehensive plans or development regulations, as adopted or amended under the GMA, are in compliance with (1) the GMA; (2) the Shoreline Management Act (SMA), Chapter 90.58 RCW, as it relates to the adoption or amendment of shoreline master programs and regulations; and (3) the State Environmental Policy Act (SEPA), Chapter 43.21C RCW, as it relates to the adoption of GMA plans and regulations. RCW 36.70A.280(1); WAC 242-03-025. RCW 36.70A.280(1); WAC 242-03-025. The legislature extended the GMHB's jurisdiction to include review of shoreline master programs under the SMA in 1995. Laws of 1995, ch. 347, §108. Additionally, the board may review whether 20-year growth management planning projections adopted by the Office of Financial Management (OFM) should be adjusted. Id. RCW 36.70A.210(6) also allows cities and the governor to appeal countywide planning policies to the board.

As reflected in the subjects that fall within the board's jurisdiction, the board's jurisdiction extends only to legislative actions, not project-specific actions or permitting decisions. RCW 36.70A.290; see also Feil v. EWGMHB, 172 Wn.2d 367, 377-81, 259 P.3d 227 (2011); Woods v. Kittitas Cnty., 162 Wn.2d 597, 609-10, 174 P.3d 25 (2007); Thompson v. Mercer Island, CPSGMHB 14-3-0010, 2014 WL 7385322 at *2-4 (Order of Dismissal at 4-8) (Dec. 5, 2014), http://www.gmhb.wa.gov/LoadDocument.aspx?did=3687. Accordingly, in the vernacular of administrative law, the board has jurisdiction over legislative actions, not quasi-judicial actions. See, e.g., Coffey v. City of Walla Walla, 145 Wn.App. 435, 440-41, 187 P.3d 272 (2008) (exploring the distinction between local legislative actions, appealable to the GMHB, and actions related to a specific property that are "judicial" in nature and should be appealed to superior court under the Land Use Petition Act, Chapter 36.70C RCW).

The board's jurisdiction can be initiated only by an appeal of a local legislative action. RCW 36.70A.280, .290. The board has no independent authority to review a local jurisdiction's action. In that regard, the system under the GMA is different from planning statutes in other nearby jurisdictions, such as Oregon, where the administrative agency responsible for review of local planning actions has authority to initiate review independently of any appeals. See Or. Rev. Stat. 197.805-.860 (Land Use Board of Appeals).

The state Supreme Court has made clear that the board's jurisdiction does not extend beyond the GMA's specific grant of authority in RCW 36.70A.280. See Skagit Surveyors and Eng'rs, LLC v. Friends of Skagit Cnty., 135 Wn.2d 542, 558, 958 P.2d 962 (1998) (boards "are creatures of the Legislature, without inherent or common-law powers and, as such, may exercise only those powers conferred by statute, either expressly or by necessary implication"). Accordingly, the GMHB refuses to hear many types of non-GMA challenges on the basis of the following: federal or state constitutional issues; statutes other than Chapters 36.70A, 90.58, and 43.21C RCW; settlement agreements; annexations; and local project permit review under Chapter 36.70B RCW. See, e.g., Bussanich v. City of Olympia, WWGMHB No. 09-2-0001, 2009 WL 1420898 at *1-3 (Order on Dispositive Motion at 2-5) (Apr. 1, 2009), http://www.gmhb.wa.gov/LoadDocument.aspx?did=33 (constitutional issues, project permit decisions, and RCW 82.02.020 claims); Halmo v. Pierce Cnty., CPSGMHB 07-3-0004c, 2007 WL 2998631 at *33 n.22 (Final Decision and Order at 43 n.22) (Sept. 28, 2007), http://www.gmhb.wa.gov/LoadDocument.aspx?did=1439 (settlement agreement); Dudek/Baguley v. Douglas Cnty., EWGMHB 07-1-0009, 2007 WL 4117920 at *7-8 (Order on Motions at 11-12) (Sept. 26, 2007), http://www.gmhb.wa.gov/LoadDocument.aspx?did=1063 (constitutional issues); Fallgatter v. Sultan, CPSGMHB 06-3-0003, 2006 WL 1583645 at *6 (Order on Motions) (Apr. 24, 2006), http://www.gmhb.wa.gov/LoadDocument.aspx?did=1504 (sewer or water plans for compliance with Chapters 90.48, 35.67, or 43.20 RCW); Petersville Rd. Area Residents v. Kitsap Cnty., CPSGMHB 00-3-0013, 2000 WL 1717576 at *2-4 (Order on Motions) (Oct. 23, 2000), http://www.gmhb.wa.gov/LoadDocument.aspx?did=1773 (local project permit review, Ch. 36.70B RCW); Bremerton v. Kitsap Cnty., CPSGMHB 95-3-0039, 1995 WL 903137 at *1-2 (Order on Request for Clarification) (Nov. 6, 1995), (annexation).

Cases heard by the board include adoption or amendment of comprehensive plans; designation of resource lands and critical areas; adoption or amendment of regulations pertaining to resource lands and critical areas, urban growth areas, and development regulations implementing the comprehensive plan; adoption or amendment of countywide planning policies (only by petition from a city or the governor); adoption or amendment of shoreline master plans (legislative enactments—not permit decisions, such as shoreline substantial development permits, shoreline conditional use permits, or variances); SEPA documents accompanying GMA action; and failure to act by a GMA statutory deadline. SEPA appeals of a GMA action must be brought before the GMHB. See Davidson Serles & Assocs. v. City of Kirkland, 159 Wn.App. 616, 246 P.3d 822 (2011) (GMHB has exclusive jurisdiction to review SEPA challenge to comprehensive plans and development regulations).

The GMHB also has exclusive jurisdiction to hear challenges related to a local government's "docketing" decision regarding whether to pursue a citizen-initiated amendment to its comprehensive plan, even though the board and courts have recognized that the board may not typically grant relief to a petitioner challenging a rejection of an amendment proposal. Stafne v. Snohomish Cnty., 174 Wn.2d 24, 38, 271 P.3d 868 (2012) (GMHB has exclusive jurisdiction to hear appeal of county's decision not to amend the comprehensive plan, and appeal to GMHB is required to satisfy exhaustion requirements, even though the board has "consistently rejected" such claims on the merits.); cf. Cainion v. City of Bainbridge Island, CPSGMHB No. 10-3-0013, 2011 WL 701702 at * 1-2 (Order on Motion to Dismiss at 1-4) (Jan. 7, 2011) (dismissing appeal of adverse docketing decision for lack of jurisdiction, and citing other GMHB cases with similar holdings), http://www.gmhb.wa.gov/LoadDocument.aspx?did=3118 .

In appeals involving allegations that the local jurisdiction failed to revise certain aspects of a comprehensive plan as part of a seven-year update, the petitioner is limited to aspects of the plan that are "directly affected by new or recently amended GMA provisions." Thurston Cnty. v. WWGMHB, 164 Wn.2d 329, 343, 190 P.3d 38 (2008).

Although the GMHB's subject matter jurisdiction is expressly defined by statute, it may not always be clear whether a certain action falls within the board's limited purview. For example, although the board typically does not have jurisdiction to review a local jurisdiction's contract with another entity, the board may have jurisdiction over a contract if the contract amounts to a de facto amendment to the jurisdiction's comprehensive plan. See Alexanderson v. Bd. of Clark Cnty. Comm'rs, 135 Wn.App. 541, 549-50, 144 P.3d 1219 (2006) (memorandum of understanding between Cowlitz Tribe and Clark County regarding tribe's development of property in a manner inconsistent with county's comprehensive plan amounted to an amendment of the comprehensive plan); Alexanderson v. City of La Center, WWGMHB No. 12-2-0004, 2012 WL 3689485 at * 5-9 (Order on Dispositive Motion at 9-14) (May 4, 2012) (applying factors outlined in Alexanderson Court of Appeals decision and finding resolution that expressly allowed sewer service beyond the UGA was a de facto comprehensive plan amendment), http://www.gmhb.wa.gov/LoadDocument.aspx?did=2975; Your Snoqualmie Valley v. City of Snoqualmie, CPSGMHB No. 11-3-0012, 2012 WL 5305661 (Order on Motions at 2-6) (March 8, 2012), http://www.gmhb.wa.gov/LoadDocument.aspx?did=2994 (applying Alexanderson factors and finding preannexation agreement was de facto amendment to comprehensive plan), http://www.gmhb.wa.gov/LoadDocument.aspx?did=2994; cf. City of Burien v. CPSGMHB, 113 Wn.App. 375, 388-89, 53 P.3d 1028 (2002) (interlocal agreement was not subject to GMA public participation requirements); BD Lawson Partners LP v. City of Black Diamond, GMHB No. 14-3-0007, 2014 WL 4627160 at *2-4 (Order of Dismissal at 4-7) (Aug. 18, 2014) (holding that city's adoption of General Governmental Facilities Plan "'in order to review, evaluate, consider and discuss this Plan, as one ofthe initial steps toward adoption ofa [mitigations fee]'" did not constitute a de facto amendment), http://www.gmhb.wa.gov/LoadDocument.aspx?did=3628; Tooley v. Gregoire, CPSGMHB No. 11-3-0008, 2011 WL 7030936 at * 4-8 (Order on Dispositive Motions at 5-13) (Nov. 8, 2011) (EIS for viaduct replacement was not de facto amendment because EIS was not binding), http://www.gmhb.wa.gov/LoadDocument.aspx?did=3108.

Similarly, although the board does not have jurisdiction over local land use permitting decisions, confusion often arises in the context of determining which type of actions constitute a "project permit." For example, area-wide rezones are typically considered to be development regulations that may be appealed to the board under the GMA. See RCW 36.70A.030(7). However, site-specific rezones authorized by comprehensive plans are considered a "project permit" under RCW 36.70B.020(4), requiring appeals to superior court under the Land Use Petition Act...