Futurewise achieves big legal wins in 2011
Futurewise Achieves Big Legal Wins in 2011
In 2011, Futurewise won cases in every forum from the Growth Management Hearings Board to the Washington State Supreme Court. One of Futurewise’s wins was even appealed to the United States Supreme Court, but as of the end of 2011, the Supreme Court had not decided to review the decision. Futurewise won 82 percent of the substantive decisions in which we participated in 2011.
Futurewise’s Supreme Court win increases protections for 443,000 acres of rural land and 357,000 acres of working farms in Kittitas County
Futurewise’s Washington State Supreme Court win was the Kittitas County decision. This case was five years in the making. In a decision signed by six of the nine justices, the supreme court sent Kittitas County’s comprehensive plan back to the county for a total rewrite of the policies that apply to rural areas and to reform development regulations that fail to protect the county’s farmers and ranchers. The Supreme Court mostly affirmed 2006 and 2007 Growth Management Hearing Board decisions. The Supreme Court of Washington held that the Kittitas County’s rural element and development regulations violate the Growth Management Act because the county failed to develop the required written record explaining how the rural element harmonizes the goals of the Growth Management Act, the element did not protect rural character, the comprehensive plan fails to provide for a variety of rural densities, the county allows impermissible uses in designated agricultural areas, and the county’s subdivision regulations fail to protect water resources as required by the Growth Management Act (GMA). This decision, which will apply to all Washington counties that fully plan under the GMA, improves protection for 443,000 acres of rural land and 357,000 acres of working farms in Kittitas County. It will also increase protections for senior water rights holders and help protect stream flows that support fish and wildlife and water quality. The citation for the decision is Kittitas County v. Eastern Washington Growth Management Hearings Bd., 172 Wn.2d 144, 256 P.3d 1193 (2011).
Futurewise wins Court of Appeals decisions protecting Puget Sound water quality, working farms, and rural areas
In 2011, Futurewise went three for three in the court of appeals, Washington’s second highest court. In January, the Court of Appeals upheld Kitsap County’s 50 and 100 foot wide buffers to protect Puget Sound water quality and fish and wildlife. Kitsap County adopted wider buffers in response to a Growth Management Hearings Board appeal by Futurewise and its partners. Futurewise then helped Kitsap County defend these buffers, wining in superior court, the state’s trial courts of general jurisdiction, and the court of appeals. In July, the Washington State Supreme Court refused to hear an appeal of the court of appeals’ decision. Conservative groups have now appealed this decision to the United States Supreme Court. The U.S. Supreme Court is currently scheduled to decide whether to hear this appeal in January 2012. The citation for this court of appeals decision is Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Bd., 160 Wn. App. 250, 255 P.3d 696 (2011).
In mid-April, the court of appeals held the Growth Management Hearings Board’s decision that Clark County had improperly de-designated and added to its urban growth areas 1,384 acres, over two square miles, of agricultural lands of long-term commercial significance. In a significant part of the decision with statewide importance, the court of appeals concluded that a city annexation of land under appeal to a Growth Management Hearings Board did not remove the land from the board’s jurisdiction and that if the annexed area qualified as agricultural lands of long-term commercial significance the city may have to undo the annexation. At the request of Clark County and a bank, the Washington State Supreme Court has decided to review this conclusion and designation of 343 acres of the agricultural land. That appeal will be decided in 2012 or 2013. The citation for this court of appeals decision is Clark County Washington v. Western Washington Growth Management Hearings Review Bd., 161 Wn. App. 204, 254 P.3d 862 (2011).
A week later, the Court of Appeals effectively reversed a superior court decision allowing high density development in rural Clallam County. This reinstated the Growth Management Hearings Board decision that one and two acres lots did not protect rural Clallam County. This was not a total victory for Futurewise, the court of appeals remanded part of the case back to the Growth Management Hearings Board to determine whether the state had funded an update to the Clallam County capital facility plan and therefore allowed the board to consider if the county’s capital facility for Carlsborg, an unincorporated urban growth area, violated the GMA. Before Futurewise’s appeal, Clallam County had applied these challenged zones to 27,788 acres, or over 43 square miles. The citation for this court of appeals decision is Clallam County v. Dry Creek Coalition, 161 Wn. App. 366, 255 P.3d 709 (2011).
Futurewise wins Superior Court decisions protecting rural areas, fish and wildlife, and working farms
Futurewise went four for five in superior court cases. In Futurewise’s first superior court case decided in 2011, one of the applicants for an expansion of the Pierce County urban growth area appealed the Growth Management Hearings Board decision that found two of the expansions violated the GMA. Because the appellant had failed to properly serve several of the parties including Futurewise, the Pierce County Superior Court dismissed the appeal. This upheld the Board’s decision that two of Pierce County’s 2010 urban growth area expansions violated the GMA.
In the second superior court decision of 2011, Yakima County Superior Court upheld the Growth Management Hearings Board’s decision that Yakima County’s critical areas exemptions violated the Growth Management Act. Unfortunately, the superior court overruled the board’s conclusion that Type 5 streams were not fish and wildlife habitats and that the county’s stream and river buffers widths complied with the GMA. Futurewise and the Confederated Bands and Tribes of the Yakima Indian Nation filed a joint appeal to the court of appeals. Yakima County and the Yakima County Farm Bureau also appealed. This appeal will probably be decided in 2012.
In the third superior court decision, Stevens County appealed a Futurewise win before the Growth Management Hearings Board requiring the county to protect fish and wildlife habitats, such as lynx habitat. After an oral argument in Colville, Stevens County Superior Court upheld the Board on every ground. The court also concluded that some, but not all, of the county’s arguments were frivolous. Stevens County appealed the superior court decision to the court of appeals, but then withdrew the appeal and has since adopted regulations to effectively protect fish and wildlife habitat.
In the fourth superior court decision, King County Superior ruled that the Puget Sound Regional Council’s Transportation 2040 regional transportation plan and the environmental impact statement (EIS) for Transportation 2040 complied with the applicable provisions of the Washington State greenhouse gas emission reduction requirements and the Washington State Environmental Policy Act (SEPA) on June 28, 2011. Futurewise, the Cascade Bicycle Club, and the Sierra Club appealed the superior court decision to the court of appeals.
In the fifth superior court decision, the City of Kittitas appealed a Growth Management Hearings Board decision that their urban growth area expansion onto 189 acres of prime agricultural land violated the GMA. The Kittitas County Superior Court Superior Court upheld the board’s decision in all respects.
Futurewise wins Growth Management Hearings Board Decisions Saving Taxpayers Money, Protect Working Farms, and Protect Water Quality
Futurewise and its local partners won four out of five new Growth Management Hearings Board appeals decided in 2011. Futurewise successfully appealed:
■ An urban growth area expansion in Whatcom County that was unneeded and would have been costly to taxpayers and ratepayers to serve with public facilities and services. Whatcom County had expanded the Ferndale urban growth area by 476 acres. After Futurewise won the appeal, Whatcom County reduced the size of the Ferndale urban growth area by 580 acres, resulting in a net reduction in the size of the urban growth area and a net savings for taxpayers.
■ Pacific County’s failure to correctly size its urban growth areas. Over the next 20 years, Pacific County needs 180 acres of land for its future urban growth after deducing critical areas, public uses, and other areas. The Pacific County urban growth areas have 368 acres of available, buildable land, an overcapacity of 188 acres. Serving these oversized urban growth areas will be costly for taxpayers and ratepayers. The county is currently undertaking the planning efforts to properly size its urban growth areas
■ Kittitas County’s expansion of a limited area of more intense rural development onto 40 acres of farmland. All of the land in the expansion is currently farmed.
■ Kittitas County’s failure to have adopted transportation concurrency requirements. The need for transportation concurrency requirements was highlighted by the proposals for a new city or new resort in the Upper Teanaway River Valley in an area served by a single two lane county road.
Futurewise and its local partners won nine out of eleven compliance hearings, improving protections for ground water quality in the Yakima Valley, protections for working farms, protections for water quality, and protections for fish and wildlife habitats. The Yakima Valley win was particularly important as the United States Environmental Protection Agency and the Washington State Department of Ecology have documented that 12 percent of the Yakima Valley wells tested do not meet drinking water quality standards for nitrates. Nitrate pollution of ground water can cause “blue baby” syndrome, where the blood is unable to deliver adequate levels of oxygen within a child’s body and other health hazards. These polluted wells are frequently used by poor families and people of color. Before Futurewise’s appeal, Yakima County had no regulations to protect the water quality of its important ground water resources, which supply drinking water to many residents, businesses, and farmers.