December 17, 2009

We meant what we said: Washington Supreme Court tells administrative agency that it lacks authority to make law … again … and again

By We meant what we said: Washington Supreme Court tells administrative agency that it lacks authority to make law … again … and again

Author: Brian T. Hodges

In a representative democracy, government agencies should be required to operate within strictly defined constitutional and statutory limits. For over a decade, however, the growth management hearings boards (administrative agencies established to review challenges to local comprehensive plan updates) have ignored this fundamental principle, using their quasi-judicial role to "fill in the gaps" that Legislature intentionally left in the State’s Growth Management Act (GMA).

For example, under the GMA, the designation of land as being "urban" or "rural" has many real world consequences on development rights and property value. In enacting the GMA, Legislature intended that cities and counties have discretion to develop appropriate land use regulations based on local circumstances and the various goals and requirements of the Act. Accordingly, Legislature did not set any statewide standard for what constitutes "urban" versus "rural" densities.

But faced with multiple challenges from anti-growth activists, the growth boards adopted "bright-line" rules establishing statewide density standards. Under these rules, property in the Olympic Peninsula’s rainforest or the agricultural areas of Eastern Washington would have to be developed in an identical pattern to property in the major urban centers along Puget Sound based solely on its designation as "urban" or "rural." This rule created a litigation bonanza for anti-growth activists, who sought to impose their vision of dense, compact urban development with severely restricted rural areas on every community across the state.

PLF recognized the impact of the of the growth boards’ invalid actions on property owners. In a 2005 case dealing with restrictive covenants, the Supreme Court stated that growth boards were administrative agencies that were limited by their enacting statute and lacked authority to make law. Viking Properties, Inc. v. Holm, 155 Wn.2d 112 (2005). Between 2005 and 2008, PLF successfully fought to have the language of Viking Properties recognized in a direct appeal challenging the growth boards’ authority to apply its "bright-line" rules. Thurston County v. Western Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 329 (2008).

But anti-growth activists continued to argue for application of the "bright-line" rules, which resulted in another recent decision where the growth board invalidated Whatcom County’s adoption of a comprehensive plan update that included several rural areas that were more intensely developed than those typically found in rural areas in its rural element (including existing resort and recreation areas, suburban enclaves, and transportation corridors). Recognizing that its "bright-line" rules were imperilled, the growth board entered a decision applying its maximum rural density standard while at the same time disavowing that it applied a "bright-line" rule. Whatcom County chose not to defend its rural plan, leaving the burden of appeal on one property owner, Gold Star Resorts.

The State Supreme Court accepted review of Gold Star’s case and PLF filed an amicus brief, arguing that, however the anti-growth activist want to characterize the "bright-line" rule issue, the growth board lack authority to establish what density standard is acceptable under the GMA. In a 9-0 decision entered this morning, the Supreme Court agreed with PLF's arguments again.

For a third time in four years, the Court held that the growth board lacks authority to adopt and apply "bright-line" rules, and reversed the growth board’s decision. The case is Gold Star Resorts, Inc. v. Futurewise, No. 80810-4, and can be found here

Evergreen Freedom Foundation posted a blog on this case here

Northwest Hub commented on the importance of this case here

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