Court Rules Against County in Growth Management Suit, With One Important Exception

The Washington State Court of Appeals has largely ruled against Thurston County, who was hoping the Court would overturn a Western Washington Growth Management Hearings Board decision that invalidated certain portions of the County’s comprehensive plan and development regulations. However, there was one victory, for the County, with possibly a significant impact to residents in rural parts of the county.

Click here to read the entire ruling.

“The Board, acting on 1000 Friends of Washington’s challenge to the County’s periodic review, found that the County failed to explain why its urban growth areas exceeded projected population growth by 38 percent, improperly designated agricultural land of long-term significance, and failed to create a variety of densities in its rural areas.”

1000 Friends of Washington is now Futurewise.

In its case, the County sought to have the Court rule that 1000 Friends of Washington did not have standing in this case. The County lost that argument.

The County sought to have the Court rule the Growth Management Hearings Board lacked jurisdiction to review land use decisions the County made years earlier and did not revise in its recent update. The County lost on this point, too.

Perhaps you, like I, are hearing the sound of our tax dollars being siphoned away on losing legal arguments. We’ve seen this before of course: As an example, the sexual discrimination case against the Thurston County Prosecuting Attorney’s Office, where legal fees mounted to close to $6 million and where the County lost – utterly – and was ordered to pay $1.52 million in damages.

The Olympian, reporting on the Court opinion, quotes Tim Trohimovich, Futurewise planning director, ” The county needs to stop wasting its money on appeals and start meeting its deadlines to protect water quality and preserve rural character in Thurston County.”

The Building Industry Association of Washington and Olympia Master Builders also backed the County in its losing case. Recently, the BIAW and OMB have spent a great deal of money backing similar losing causes (I-933, John Groen’s candidacy for Washington State Supreme Court Justice, Kevin O’Sullivan’s campaign. . . if they weren’t spending so much money on these losing efforts, they might have more to contribute to, as OMB likes to say, “keeping housing affordable”).

The Court found “The County projected that demand for residential urban lands in 2025 would be 11,582 acres. It allocated 18,789 acres for this use. This projection leaves 7,205 acres, or approximately 38 percent of available residential lands, unused at the end of the current 20-year planning period.” In other words, the Court found the Hearings Board was correct: the Urban Growth Areas the County identified were way too big.

I find it worth noting that, long before the Hearings Board took action, 1000 Friends of Washington testified to the County Commissioners that the County was not correctly addressing its requirements with respect to growth planning. The Commissioners ignored those warnings and this case – and the entire rezoning effort in which the County is now engaged – is the result.

In the end, the County won only one point: “In reviewing the County’s rural densities, the Board erred in concluding that the County’s zoning designations did not provide for a variety of rural densities.” What does that mean? Quite possibly, this means rural areas do not have to be rezoned. A knowledgeable GNA member writes, “The court said that the Growth Management Hearing Board put the burden on the county to prove that its ‘innovative techniques’ (cluster development, transfer of development rights, etc.) provide a variety of rural densities when the burden of proving those techniques do not provide a variety of rural densities should be on Futurewise. The court returned the case to the Board for the Board to consider evidence and argument consistent with the court’s decision.”

For those of us who oppose the kind of development along Steamboat Island Road that the County has already allowed (Mr. Nicholson’s tennis club) or is currently entertaining (Mr. Willis’ Conference Center), there is this description of what the Court finds “rural character” means:

“The patterns of land use and development established by a county in the rural element of its comprehensive plan:

(a) In which open space, the natural landscape, and vegetation predominate over the built environment;

(b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;

(c) That provide visual landscapes that are traditionally found in rural areas and communities;

(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat

(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;

(f) That generally do not require the extension of urban governmental services; and

(g) That are consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.”

Kinda sounds like our neighborhood, doesn’t it?

I wonder if either the County’s Hearing Examiners or the County Commissioners will get to the bottom of Page #24 to read about what their development efforts so often fail to take into consideration.

The opinion of the Court ends:

“In conclusion, we hold that Futurewise, as a participant before the County, had standing before the Board and that the Board had jurisdiction to consider both revised and unrevised portions of the County’s comprehensive plan and regulations. We affirm the Board’s decision invalidating the County’s current use criterion in designating farm land and the Board’s decision invalidating the County’s urban growth area designations. But we reverse (1) the Board’s invalidation of the County’s parcel size criterion for designating agricultural lands of long-term significance and (2) the Board’s finding that the County failed to provide for a variety of rural densities through the use of innovative techniques.”

See the previous post, on the activities of the County’s Planning Commission, and next steps the Commissioner’s may take to respond to the findings of the Board.

Thurston County Deputy Prosecuting Attorney Jeff Fancher will brief the County Commissioners on the impact of this opinion and possible next steps, at 2 p.m. Thursday. A public presentation will follow, The Olympian reports.

UPDATE: Here is the text of an email sent on April 4 by Futurewise regarding this decision:

Huge win for a better Thurston County! The Court of Appeals says growth should stay in our cities and we must protect our rural and agricultural areas.

Read more about Court’s decision from The Olympian by clicking on the following link:

Now’s the time to write a letter to the editor to build on the momentum of this win. Ask the County to stop wasting taxpayer money filing appeals the county loses and to enact better protections for our drinking water, preserve more farmland, and reduce sprawl.

Please click on the following link to submit a letter to The Olympian:

Suggested talking points:

  • Protect rural character – More than 21,000 rural acres are zoned at 1 housing unit per 2 acres or greater, this is far too urban for a rural area. Our rural areas don’t have adequate infrastructure to handle urban density so we’ll have to spend more money on improving our roads, schools, and emergency services.
  • Support a sensible rural rezone – We need a greater variety of rural zoning with more land designated at 1 housing unit per 10 acres and 1 unit per 20 acres.
  • Protect working farms – Out of the 74,442 acres of working farms in 2002, Thurston County has only designated 14,000 acres (18.8%) of farmland to protect.
  • Prevent urban sprawl – The urban growth areas (UGAs) are 61% larger than necessary to accommodate the county’s population target. Excessively large UGAs increase sprawl, meaning we spend more time in gridlock and cost taxpayers more money.
  • Don’t waste money on another losing appeal against the public interest – It’s time for the County to start working to meet the Court appointed deadlines to update its plan to protect our drinking water and water quality.

Background on appeal

Futurewise appealed the County’s 2004 Comprehensive Plan because it promoted urban sprawl. On July 20, 2005, the Western Washington Growth Management Hearings Board agreed with Futurewise and declared the Thurston Plan to be noncompliant with state law for four reasons:

  • Designation of rural lands at urban densities
  • Lack of variety of rural densities
  • Minimal farmland protection
  • Excessively large urban growth areas

The County then appealed this decision, leaving it to the Court of Appeals to decide.

Yesterday, April 3, 2007, the Court of Appeals decided almost entirely in our favor, they:

  • Upheld the Board’s determination that Thurston County’s Urban Growth Areas were too large by 7,000 acres.
  • Agreed that agricultural land must only be capable of use in commercial agricultural, rather than currently farmed.
  • Upheld that the County must provide for a variety of rural densities, which must be less dense than 1 housing unit per 5 acres.

Reversed the Board on two smaller issues:

  • That predominant parcel size rather than farm size may be used in designating farms to be protected
  • That Futurewise rather than the County had the burden of proving that innovative rural zoning techniques were ineffective at ensuring a variety of rural densities

Overall this is a big win for Futurewise and the protection of Thurston’s cities and rural communities!

Please click on the link to submit a letter to the editor, urging the County to stop wasting taxpayer money and to start protecting our drinking water and rural character:

Thank you for your continued support in Thurston County.

April Putney
Futurewise, Field Organizer


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