Washington's Way Ii: the Burden of Enforcing Growth Management in the Crucible of the Courts and Hearings Boards

Publication year2008


Washington's Way II: The Burden of Enforcing Growth Management in the Crucible of the Courts and Hearings Boards

Henry W. McGee, Jr.(fn*) Brock W. HoweW (fn**)

I. Introduction

This Article continues the analysis and discussion of the conflicts and problems that beset a dispersed and decentralized growth management control system, as discussed in Washington's Way: Dispersed Enforcement of Growth Management Controls and the Crucial Role of NGOs(fn1) That article explained how Washington politicians, in an effort to combat urban sprawl, created a dispersed, "bottom-up" approach to growth management by enacting the Washington Growth Management Act (GMA). The enforcement mechanism provided under the GMA, however, was not mandated to a single government entity; rather, it was left to citizens and non-governmental organizations (NGOs) acting at the local level.(fn2) In order to ensure local legislative actions comply with the GMA, private citizens and NGOs must petition one of three quasi-adjudicative agencies known as growth management hearings boards.(fn3)

One of the most prominent NGOs in enforcing the GMA is Fu-turewise. Formerly known as 1000 Friends of Washington, Futurewise is the most notable NGO whose efforts have proven to be effective in protecting farms and forests while building vibrant urban areas in accord with GMA goals and requirements.(fn4) Organized by some of the GMA legislation's framers, some of whom are still on its Board of Directors, Futurewise provides a means for ordinary citizens from all walks of life and occupations to actively participate in local land use matters identified in the GMA.(fn5)

Despite Futurewise's success, critics of Washington's GMA enforcement mechanism argue that with no centralized state approval of local comprehensive plans and development regulations, relying upon citizens to petition hearings boards for review of local actions leads to sporadic and haphazard enforcement.(fn6) The general population lacks the knowledge, time, and resources to enforce the GMA on a voluntary basis. NGOs must rely on contributions and creative fundraising to enforce the GMA.(fn7) This reliance means that even the best-intentioned NGOs lack the wherewithal to investigate and litigate every county and city's adoption or modification of its comprehensive plan and development regulations. Even if an NGO could do this, it probably would not fully represent the complete statutory intention of the Washington Legislature.

Whatever the pitfalls of Washington's decentralized enforcement of the GMA, this Article has deeper concerns. Notwithstanding the self-evident handicaps of enforcement by volunteerism, many developers and local governments that are dependent on property and sales taxes for revenue(fn8) argue for greater discretion in interpreting the GMA and higher standards of proof in order to insulate them from decisions adverse to their economic fortunes. If the decentralized enforcement is to continue to possess efficacy, the Washington State Department of Community Trade and Economic Development (CTED) must be able to create minimum guidelines that must be followed by local governments, and growth management hearings boards must be able to rely on precedent to establish general standards. Part II of this Article discusses the burdens of proof and standards of review required by the GMA, before describing in Part III the hearings boards' ability to provide precedent for future decisions. Part IV concludes with suggestions on how to resolve these issues.

II. Board Decision-making: Burdens and Standards

A thorough analysis of the burden of proof, quantum of proof, and standard of review under the GMA is necessary because the Act does not properly differentiate these burdens and standards. The murky waters of these burdens and standards have resulted in many boards, courts, and practitioners not clearly stating basic principles.(fn9) This confusion has left the door open for developers and local governments to argue that, because comprehensive plans and development regulations are valid upon adoption and because local governments may consider "local circumstances,"(fn10) hearings boards possess limited authority to find local actions noncompliant.(fn11) Public interest groups, such as Futurewise, argue for less constrained interpretations.(fn12) To clean up the quagmire, a better resolution of what the burdens and standards are is necessary.

A. General Principles of Burdens and Standards

The inquiry of the GMA's burdens and standards begins by defining "burden of proof," "quantum of proof," and "standard of review."(fn13) Burden of proof and quantum of proof are evidentiary standards employed by the trier of fact.(fn14) Burden of proof contains two separate components: the burdens of persuasion and production.(fn15) The burdens of persuasion and production typically rest initially with the plaintiff or petitioner, although the legislature may alter the assignment.(fn16)

The party that has the burden of persuasion must persuade the trier of fact of the correctness of its position.(fn17) In the rare situation in which both parties' positions are equally worthy, the finder of fact finds in favor of the party without the burden.(fn18) The burden of persuasion stays with the same party throughout the fact-finding process, usually the petitioner.(fn19)

While the burden of persuasion relates to the parties' position on the facts or law, the burden of production relates to the parties' production of evidence.(fn20) The party with the burden of production must present sufficient evidence to prove each element of a claim.(fn21) In many cases, the burden of production may necessarily shift to the opposing party to produce sufficient evidence to disprove each element.(fn22) When the burden of production shifts to the respondent, the petitioner retains the burden of persuading the finder of fact that the respondent's evidence is insufficient or irrelevant.(fn23)

While the burden of production relates to the parties' production of evidence for each element, quantum of proof relates to the amount of production necessary.(fn24) The quantum of production is the amount of evidence necessary to have the court rule in the party's favor when the party's evidence is balanced against the opponent's evidence.(fn25) "Typical quantums of proof include 'preponderance of evidence,' 'clear and convincing evidence,' and 'beyond a reasonable doubt.'"(fn26)

Standard of review is a wholly different concept from burden of proof and quantum of proof. Whereas a trier of fact employs a burden of proof and a quantum of proof, only tribunals serving in an appellate capacity apply a standard of review.(fn27) The standard of review is the amount of scrutiny with which "[an appellate] tribunal reviews the factual findings of a lower tribunal."(fn28)

The potential standards of review, from least deferential to greatest, include "de novo," "substantial evidence," "abuse of discretion," "clearly erroneous," and "arbitrary or capricious."(fn29) As the standard of review becomes more deferential to the lower decision, the appellate tribunal will more likely affirm the decision.(fn30) Under the de novo standard, the appellate tribunal decides the facts "as new" with no deference to the lower court's findings.(fn31) Under the "substantial evidence" standard, the appellate tribunal will uphold a lower tribunal's findings "if a reasonable person could find the evidence sufficient to arrive at the [tribunal's conclusion]," even if a different result is conceivable.(fn32) Under the "clearly erroneous" standard, the appellate tribunal will uphold a lower tribunal's findings unless the appellate tribunal is "left with firm and definite conviction that a mistake has been committed."(fn33) Finally, under the "arbitrary or capricious" standard, the appellate tribunal will not reverse unless the lower tribunal made a "willful and unreason[ed decision] ... without consideration and in disregard of the facts and circumstances of the case."(fn34)

When the appellate tribunal applies the standard of review, the tribunal views the appealed decision in light of the requisite burden of proof and quantum of proof before the lower tribunal.(fn35) Burden of proof and quantum of proof are only evidentiary standards, but the standard of review is applicable to both findings of fact and law.(fn36) Usually, appellate tribunals apply the standard of review of de novo to findings of law.(fn37) When the agency or lower tribunal has specific expertise, appellate tribunals will give more deference to findings of law.(fn38)

B. GMA 's Burdens and Standards

Section 36.70A.320 of the Revised Code of Washington (RCW) provides the requisite burdens and standards for review applied by the Growth Management Hearings Boards.(fn39) To the consternation of many practitioners before the hearings boards, and undoubtedly to many county commissioners, city council members, planners, and local participants as well, the Washington Legislature created in section 320 an incoherent linguistic rubric of the burdens and standards to be applied by the hearings boards. As a result, the burdens and standards have been subject to much debate. A 1997 amendment to section 320 provided no greater help.(fn40) At the core of the problem is the...

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