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Opinion in PDF Format
Court of Appeals Division II
State of Washington Opinion Information Sheet
SOURCE OF APPEAL
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JUDGES
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COUNSEL OF RECORD
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View the Opinion in PDF Format
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KITSAP ALLIANCE OF PROPERTY ) No. 38017-0-II
OWNERS, WILLIAM PALMER and )
RON ROSS, ) Consolidated with 38087-1-II
)
Appellants, )
)
v. )
)
CENTRAL PUGET SOUND GROWTH )
MANAGEMENT HEARINGS BOARD, )
FUTUREWISE, HOOD CANAL )
ENVIRONMENTAL COUNCIL, KITSAP )
CITIZENS FOR RESPONSIBLE )
PLANNING, KITSAP COUNTY, )
JUDITH KRIGSMAN, JIM TRAINER, )
WEST SOUND CONSERVATION )
COUNCIL, )
)
Respondents. ) PUBLISHED OPINION
Korsmo, J. -- This action presents an issue our Supreme Court has not yet
authoritatively resolved concerning the interaction of the Growth Management Act and
the Shoreline Management Act on "critical areas" within "shoreland" regions. While
No. 38017-0-II, Consolidated with No. 38087-1-II
there is no majority of the court for a specific analytic approach to the issue, the outcome
of Futurewise v. Western Washington Growth Management Hearings Board,1 dictates our
resolution of this appeal. The decision to require a setback buffer for the entire marine
shoreline of Kitsap County is reversed and the matter remanded for consideration under
the Shoreline Management Act.
FACTS
The procedural and factual history of this case is extensive, but can be expressed
in simplified form in light of our decision. The action arose after Kitsap County began to
update its Critical Areas Ordinance (CAO) as required by the Growth Management Act
(GMA), chapter 36.70A RCW. The initial ordinance set a 35-foot buffer around the
county's marine shorelines. Kitsap Alliance of Property Owners (KAPO) -- a non-profit
Washington corporation -- and two property owners challenged the buffer as excessive
before the Central Puget Sound Growth Management Hearings Board (Board). Several
other parties, including respondent Hood Canal Environmental Council, another non-
profit Washington corporation, filed a competing challenge, alleging that the buffers were
inadequate.
In 2006, the Board issued a decision rejecting the KAPO challenge and remanded
the ordinance to the County with directions to increase the buffer zone. KAPO filed a
1 164 Wn.2d 242, 189 P.3d 161 (2008).
2
No. 38017-0-II, Consolidated with No. 38087-1-II
petition for review with the Kitsap County Superior Court. Meanwhile, the County
amended the CAO and increased the marine shoreline buffer to 50 feet in urban shoreline
areas and 100 feet in rural and semi-rural shoreline areas.2 The Board approved the
amended CAO and KAPO filed another petition for review. The superior court
consolidated the two matters. It upheld the Board's decisions. KAPO then appealed to
this court.
ANALYSIS
The Shoreline Management Act (SMA), chapter 90.58 RCW, was enacted in 1971
to protect our shorelines by requiring coordinated planning of development near them.
RCW 90.58.020. To that end, the SMA permits development near shorelines when it is
"carefully planned, managed, and coordinated in keeping with the public interest." Dep't
of Ecology v. Ballard Elks Lodge No. 827, 84 Wn.2d 551, 557, 527 P.2d 1121 (1974).
The "shorelines" include the "shoreland" within 200 feet of the ordinary high water mark.
RCW 90.58.030(2)(e), (f). The Department of Ecology must approve a local shoreline
management plan before it is effective. RCW 90.58.090(1).
The GMA, enacted in 1990, is a planning statute that requires counties and cities
to coordinate land use plans and direct development to urban growth areas. RCW
2 We were advised at oral argument that the expanded buffers were necessary to
deal with federal concerns involving two declining fish species. See footnote 3. No party
contends that federal law is involved in this action.
3
No. 38017-0-II, Consolidated with No. 38087-1-II
36.70A.010; .020; .040. Among its many provisions is a requirement that cities and
counties adopt and regularly update their comprehensive plans and their plans for critical
areas. RCW 36.70A.130(1). A critical area is defined to include several different areas
including wetlands and frequently flooded areas. RCW 36.70A.030(5).3 A decision to
designate and protect a critical area must be based on the best available science. RCW
36.70A.172(1).
Recognizing that the two acts overlapped with respect to the shoreland within 200
feet of a shoreline, the Legislature tried to provide guidance by initially stating in 1995
that the goals of the SMA would be goals of the GMA and that an approved shoreline
master plan would be an element of a city or county's comprehensive plan. The shoreline
plan was to be developed in accordance with SMA procedures. Former RCW
36.70A.480 (1995). In a later attempt to clarify the interplay between the two statutes,
the Legislature sought to further harmonize the competing approaches to land use near
shorelines when it amended section 480 by the enactment of Laws of 2003, ch. 321. That
statute provides in relevant part:
(3) The policies, goals, and provisions of chapter 90.58 RCW and
applicable guidelines shall be the sole basis for determining compliance of a
shoreline master program with this chapter except as the shoreline master
program is required to comply with the internal consistency provisions
of . . . .
3 In planning for critical areas, "counties and cities shall give special consideration
to conservation or protection measures necessary to preserve or enhance anadromous
fisheries." RCW 36.70A.172(1).
4
No. 38017-0-II, Consolidated with No. 38087-1-II
(a) 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 RCW
36.70A.030(5) 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,
except as provided in subsection (6) of this section.
(b) Critical areas within shorelines of the state that have been
identified as meeting the definition of critical areas as defined by RCW
36.70A.030(5), 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 this chapter, except as provided in
subsection (6) of this section. . . .
(c) The provisions of RCW 36.70A.172 shall not apply to the
adoption or subsequent amendment of a local government's shoreline
master program and shall not be used to determine compliance of a local
government's shoreline master program with chapter 90.58 RCW . . . .
(4) Shoreline master programs shall provide a level of protection to
critical areas located within shorelines of the state that is at least equal to
the level of protection provided to critical areas by the local government's
critical area ordinances . . . .
(5) Shorelines of the state shall not be considered critical areas
under this chapter except to the extent that specific areas located within
shorelines of the state qualify for critical area designation based on the
definition of critical areas provided by RCW 36.70A.030(5) and have been
designated as such . . . .
(6) If a local jurisdiction's master program does not include land
necessary for buffers for critical areas that occur within shorelines of the
state, as authorized by RCW 90.58.030(2)(f), then the local jurisdiction
shall continue to regulate those critical areas and their required buffers
pursuant to RCW 36.70A.060(2).
RCW 36.70A.480.4
The amended statute arguably left the two acts more intertwined than before.
4 The 2003 amendments also placed similar language in parallel provisions of the
SMA.
5
No. 38017-0-II, Consolidated with No. 38087-1-II
While the SMA is designated to govern critical areas within the shoreland regions and
was not required to comply with the "best available science" standard of the GMA, it was
still required to provide at least the same level of protection as the local CAO did.
Further, if the SMA did not have a large enough buffer area, then the GMA would govern
by applying the buffer the CAO required. In doing so, the legislation created a classic
"chicken and the egg" problem by not answering the question of which statute comes
first. The SMA must govern, but it has to do so with reference to GMA standards and
requirements. The reliance on GMA standards presupposes that a CAO is in place for the
shoreland that the SMA is supposed to regulate.
The interpretation of these provisions has been at issue in two cases, Biggers v.
City of Bainbridge Island, 162 Wn.2d 683, 169 P.3d 14 (2007), and Futurewise v.
Western Washington Growth Management Hearings Board, 164 Wn.2d 242, 189 P.3d
161 (2008). Neither of these cases garnered a majority in favor of its interpretation.
Biggers involved an attempt by the City of Bainbridge Island to prevent shoreline
development while it updated its shoreline master program. To do so, it serially imposed
three moratoria while it developed its updated shoreline plan. The City relied on a GMA
provision, RCW 36.70A.390, as its authority to issue each development moratorium. 162
Wn.2d at 688-690. The plurality opinion, written by Justice James Johnson, found that
the City lacked authority to impose a moratorium on development.5 As relevant here, the
6
No. 38017-0-II, Consolidated with No. 38087-1-II
plurality cited to RCW 36.70A.480(2) and (3) and stated "the provisions of the SMA
remain the source of adoption procedures for shoreline development." 162 Wn.2d at 700.
The deciding vote in the case was cast by Justice Chambers. He stated that he largely
agreed with the dissent's analysis and expressly disagreed with the plurality's view that
the City lacked authority to impose the moratoria. Id. at 703, 706. Instead, he found the
repeated and continuous moratoria an unreasonable use of the police power. Id. at 706.
Justice Fairhurst authored the dissent.6 That opinion discussed the moratorium power
under the SMA and the state constitution, but did not address the GMA. Id. at 707-714.
The Futurewise case directly addressed the problem of the interaction of the SMA
and GMA on shoreland areas. There the City of Anacortes had prepared an update to its
SMA master plan that included regulation of the shoreland region. The plan was litigated
before the Western Washington Growth Management Board, which approved the plan.
Futurewise then appealed the Board's decision to the Thurston County Superior Court.
164 Wn.2d at 244-245. The court reversed, finding that the GMA applied and governed
critical areas until such time as the Ecology Department approved a new master plan for
Anacortes. Id. at 245.
On direct review, the Washington Supreme Court reversed the superior court and
5 The opinion was joined by Chief Justice Alexander and Justices Sanders and
Bridge.
6 The opinion was joined by Justices Charles Johnson, Madsen, and Owens.
7
No. 38017-0-II, Consolidated with No. 38087-1-II
reinstated the Growth Management Board's decision. Id. at 245, 248. The court again
did so by a plurality opinion written by Justice James Johnson.7 The opinion noted
legislative history8 stating that the 2003 amendment was designed to overturn an earlier
decision of the Central Puget Sound Growth Management Board that had "retroactively
applied" the GMA to critical areas within the scope of the SMA master plans. Id. at 244-
245. The plurality opinion also rejected the argument that RCW 36.70A.480(3)(a)9
provided that the SMA would govern only after the Department of Ecology had approved
a shoreline plan. Id. at 245-247.
The fifth vote to resolve the case was supplied by Justice Madsen, who only
concurred in the plurality's result. The dissent was written by Justice Chambers.10 The
dissent agreed that the Legislature had clearly stated its intent that the SMA ultimately
7 The opinion was joined by Justices Charles Johnson, Sanders, and Bridge.
8 The intent section of the bill indicated the Legislature's desire to overturn the
decision in Everett Shorelines Coalition v. City of Everett, No. 02-3-0009c. Laws of
2003, ch. 321, § 1(1). The intent section also stated: "The legislature intends that critical
areas within the jurisdiction of the shoreline management act shall be governed 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." Laws of 2003, ch.
321, § 1(3).
9 RCW 36.70A.480(3)(a): "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 RCW 36.70A.030(5) within
shorelines of the state shall be accomplished only through the local government's
shoreline master program." (Emphasis added).
10 The opinion was joined by Chief Justice Alexander and Justices Owen and
Fairhurst.
8
No. 38017-0-II, Consolidated with No. 38087-1-II
govern the shoreland areas, but argued that the transfer of that authority from the GMA to
the SMA was contingent on updated master plans approved by the Department of
Ecology. Id. at 249-251.
This case presents the same issue as Futurewise. The Legislature has not acted to
further clarify the interplay between the two statutes. Our Supreme Court has not been
able to garner a majority view for resolving the problem. When dealing with a plurality
opinion, the holding of the court is the position of the justice(s) concurring on the
narrowest grounds. Davidson v. Hensen, 135 Wn.2d 112, 128, 954 P.2d 1327 (1998);
State v. Zakel, 61 Wn. App. 805, 808, 812 P.2d 512 (1991), aff'd, 119 Wn.2d 563, 834
P.2d 1046 (1992). In Futurewise, the narrowest position was that of Justice Madsen who
concurred only in the result. The result, in turn, was reinstatement of the decision of the
Western Washington Growth Management Board upholding the actions of the City of
Anacortes in regulating shoreland areas under its SMA master plan. The result also
overturned a superior court decision requiring regulation under the GMA.
While the language of RCW 36.70A.480 certainly contemplates that plans under
both the SMA and the GMA will regulate critical areas in shoreland regions in some
situations and, thus, suggests that both types of plans can exist at the same time, the
outcome of Futurewise seems to dictate otherwise. By overturning the order calling for
GMA planning while upholding the SMA planning, Futurewise directs that only one plan
9
No. 38017-0-II, Consolidated with No. 38087-1-II
-- the SMA plan -- can be in effect at one time. Accordingly, the Kitsap County CAO at
issue here is reversed and the matter remanded to the Board for further remand to the
County to plan for the shoreland regions under the SMA.
We appreciate that this result leaves cities and counties attempting to comply with
RCW 36.70A.480 in a difficult position. Although the statute suggests that the respective
CAO plans under the GMA must include any critical areas that also fall within the
jurisdiction of the SMA, the decision in Futurewise directs that local governments act
only under the SMA. The problem may be alleviated somewhat if our Supreme Court can
muster a clear majority on the topic. Ultimately, however, the Legislature must clarify
how, if at all, the GMA provisions in RCW 36.70A.480(4) and (6) apply to critical areas
that also happen to fall within SMA shoreland jurisdiction.11
Reversed and remanded to the Central Puget Sound Growth Management Hearings
Board for further action.
__________________________________
Korsmo, J.
WE CONCUR:
________________________________
Van Deren, C.J.
________________________________
11 In light of this disposition, we do not address KAPO's other contentions.
10
No. 38017-0-II, Consolidated with No. 38087-1-II
Penoyar, J.
11
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