Chapter § 2.17 GMA Challenges to Comprehensive Plans

• Jurisdiction: Washington

§2.17 GMA CHALLENGES TO COMPREHENSIVE PLANS

Comprehensive plans, including amendments thereto, are subject to legal challenges based on claims that the local jurisdiction did not follow the substantive and procedural requirements of the GMA and SEPA. Comprehensive plans are also subject to a variety of constitutional and other legal challenges, which are discussed above. See §2.2, above. This section addresses administrative and judicial legal challenges based on claims of noncompliance with the requirements of the GMA and SEPA. For additional information regarding the Growth Management Hearings Board, see Chapter 13 of this deskbook. More detailed information regarding land use appeals can be found in Vol. 6, Chapters 15 & 16 of this deskbook.

(1) Appeals to the GMHB

Comprehensive plans and amendments thereto are subject to challenge by administrative appeal to the GMHB. RCW 36.70A.280(1)(a). The GMA established the GMHB as a quasi-judicial agency charged with reviewing challenges involving GMA compliance and implementation, as well as SEPA and SMA challenges to planning decisions. RCW 36.70A.250(1), .280(1). Historically, there were three regional three-member boards, each with jurisdiction over a portion of the state. In 2010, the legislature amended the GMA and consolidated the three regional boards into the current single, seven-member body. RCW 36.70A.250(1). The consolidated GMHB is required to have at least two members from each region of the state from which the former boards heard appeals (Central Puget Sound, Western Washington (other than Central Puget Sound), and Eastern Washington). Id. Individual appeals continue to be heard by three-member panels, with at least two members from the region in which the case arose. Id.

(a) Overall importance of the GMHB

The GMHB plays a critical role in Washington's growth management system. Of course, it performs the obvious function, described below, of adjudicating disputes about whether certain local government actions comply with the GMA. In this regard, it is important to understand the operation of the GMHB. Beyond its adjudication of individual cases, the board has played a central role in the overall statutory scheme and the development of Washington's GMA. The statute is general in many areas, in part because it was adopted based on political compromise. See Woods v. Kittitas Cnty., 162 Wn.2d 597, 612 n.8, 174 P.3d 25 (2007). Moreover, in contrast to other states and other Washington statutes (e.g., the SMA), the state has a relatively weak role in overseeing local planning decisions and enforcing the GMA. Henry W. McGee, Jr., Washington's Way: Dispersed Enforcement of Growth Management Controls and the Crucial Role of NGOs, 31 seattle U. L. Rev. 1, 4-26 (2007); see also Henry W. McGee, Jr. & Brock W. Howell, Washington's Way II: The Burden of Enforcing Growth Management in the Crucible of the Courts and Hearings Boards, 31 seattle U. L. Rev. 549, 549 (2008). This lack of centralization gives the adjudication of individual decisions by the GMHB great significance in the development of the law. Brent D. Lloyd, Accommodating Growth or Enabling Sprawl? The Role of Population Growth Projections in Comprehensive Planning Under the Washington State Growth Management Act, 36 Gonz. L. Rev. 73, 89 (2001).

The GMHB, through its many decisions, has played a significant role in the development of growth management law. In many situations, a practitioner cannot completely assess an issue without an understanding of relevant GMHB decisions, which can be searched by keyword on the GMHB's website. See Growth Mgmt. Hearings Bd., Case and Decision Search, http://www.gmhb.wa.gov/CaseSearch.aspx (last visited Mar. 22, 2016).

Courts have recognized that the GMA allows the GMHB to exercise "independent judgment" regarding the application of the GMA. Diehl v. Mason Cnty., 94 Wn. App. 645, 659-60, 972 P.2d 543 (1999). Moreover, courts have noted that, although not legally mandatory, they will often defer to the board's interpretation of the GMA. See, e.g., Timberlake Christian Fellowship v. King Cnty., 114 Wn. App. 174, 185 n.3, 61 P.3d 332 (2002), review denied sub nom. Citizens for Responsible Rural Area Dev. v. King Cnty., 149 Wn.2d 1013 (2003).

Although generally deferential to GMHB decisions, courts have imposed some limit on the board's ability to impose specific requirements beyond the terms of the statute. See Viking Props., Inc. v. Holm, 155 Wn.2d 112, 129, 118 P.3d 322 (2005); accord Suquamish Tribe v. CPSGMHB, 156 Wn. App. 743, 762, 235 P.3d 812 (2010), review denied, 170 Wn.2d 1019 (2011); Gold Star Resorts, Inc. v. Futurewise, 167 Wn.2d 723, 734-35, 222 P.3d 791 (2009); Thurston Cnty. v. WWGMHB, 164 Wn.2d 329, 352-53, 358-59 & nn.21-22, 190 P.3d 38 (2008).

In Viking Properties, the court addressed a bright-line rule the GMHB had established for distinguishing between urban and rural densities. 155 Wn.2d at 129. The court held that the board lacked authority to establish such rules. Id. The court explained:

[T]he growth management hearings boards do not have authority to make "public policy" even within the limited scope of their jurisdictions, let alone to make statewide public policy. The hearings boards are quasi-judicial agencies that serve a limited role under the GMA, with their powers restricted to a review of those matters specifically delegated by statute.

Id. (emphasis in original). In Thurston County, the court held that the board lacked authority to adopt a presumptive 25 percent maximum market factor when evaluating the appropriate size of a UGA. 164 Wn.2d at 352-53.

Viking Properties and its progeny only involved the GMHB's bright-line rules defining urban density and rural density. There is an open question about whether the Viking Properties rule could be extended to limit the precedential value of other substantive board holdings.

One unfortunate consequence of the Viking Properties line of cases is that it may lead to less predictability in GMHB decisions. As noted above, the GMA itself is not entirely clear in many respects. Board-established rules, which filled in some of the blanks in the GMA, essentially provided a safe harbor. Limiting the ability of the board to establish clear rules may result in less predictable outcomes.

Whatever the case, the GMHB will retain a primary and significant role in interpretation and application of the GMA.

(b) GMHB jurisdiction and appeal process

The GMHB has jurisdiction over a limited range of comprehensive plan challenges. The GMA provides that the GMHB only has jurisdiction over comprehensive plan appeals alleging a violation of the GMA, the SMA as it relates to the adoption of shoreline master programs in planning jurisdictions or amendments thereto, and SEPA as it relates to plans, development regulations and amendments. RCW 36.70A.280(1). The board also has jurisdiction over discrete issues other than comprehensive plan challenges, but these are beyond the scope of this chapter. See RCW 36.70A.280(1).

The GMA outlines filing requirements, deadlines, and appeal procedures. RCW 36.70A.250-.330; see also Tit. 242 WAC. The GMA requires that petitions for review be filed within 60 days of publication of the notice of adoption of the challenged comprehensive plan provision. RCW 36.70A.290(2). Appeals to the GMHB are heard on the record that was developed by the planning jurisdiction, unless the record is supplemented pursuant to a motion and board order. RCW 36.70A.290(4), .320(3).

If a comprehensive plan or amendment thereto is challenged before the board, the burden is on the appellant to demonstrate that the challenged action does not comply with the...