In the past two weeks the Division II Washington Court of Appeals handed down two controversial Growth Management Act decisions. One decision involved a challenge by Futurewise of Clallam County’s urban growth areas and potential use of new zoning designations that would allow developments on lots smaller than five acres. First Futurewise challenged the Clallam County Comprehensive Plan alleging that the County inappropriately maintained an urban growth area for the Carlsborg area because the County failed to show it could adequately serve the area with sewer. Futurewise argued that Clallam County’s capital facility plan (CFP) did not prove up to show how the Carlsborg area could be served with sewer. Clallam County countered by stating that Growth Management Hearings Board did not have jurisdiction to hear the case because the County adopted it’s CFP in 2000 and made no amendments to it after their 2007 review. But the County conceded that jurisdiction would have been conferred had the legislature amended a controlling section of the GMA that would require an update of CFPs when Comprehensive Plans are updated. The Court sent the case back the Hearings Board to make a factual determination as to whether a key provision of GMA was amended that would confer jurisdiction in the case.

Secondly the Court in the Clallam County case stated that it would not issue and advisory opinion on the lower zoning designation because the County removed the application of the zoning district from all lands outside of the Local Areas of More Intensive Rural Development (LAMRID). The Hearings Board ruled against the County proclaiming that the one dwelling unit per 2.4 acres rural zoning amounted to urban growth outside of an Urban Growth Area. But during the course of the appeal, in order to get out from an order of invalidity which impacts the County’s funding from the state, the County withdrew the application of the zoning district outside of the LAMRIDs. The Court refused to issue an advisory opinion to the County and noted that they have seen a disturbing trend in GMA cases where facts change before the case gets to them.

But before the court issued the Clallam County decision, they issued a decision in the the Karpinski v. Clark County case which the holding has confused just about every land use attorney that I have spoken to. This case revolved around the conversion of formerly designated resource lands (agricultural lands to be exact) into urban land by bringing them into six of the County’s seven urban growth areas. Futurewise appealed the designation of all resource lands to the Hearings Board. The Hearings Board in a mixed opinion, upheld some of the de-designations, but overturned them as being “clearly erroneous” de-designations. But during the course of the appeal, the cities of Ridgefield and Camas annexed property being challenged by Futurewise.

On appeal to Superior Court most of the land tossed out by the Hearings Board was brought back into the boundary. Futurewise then appealed to Division II seeking to overturn the lands that were overturned. Two of the properties in this appeal are to be sent back to the Hearings Board to be reexamined in light of a new definition of “characterized by urban growth.” Both properties that were sent back are surrounded by urban land and urban services. The City of LaCenter once again had it’s land at the LaCenter interchange removed.

But the bizarre thing about this case revolved around a ruling on an issue not even before the court. The court held that the despite the fact that the annexation of land to Camas and Ridgefield took place before the Hearings Board issued an order of invalidity that the Hearings Board still had jurisdiction over the matter. As I stated above, many question the meaning of the decision and why the court addressed this issue sua sponte, of its own volition. Regardless Clark County and the City of LaCenter are expected to seek a petition for review to the Washington Supreme Court in the case. It remains to be seen whether additional parties will seek to join the case.

A longer article on the Karpinski case will appear in our upcoming Groundbreaking Newsletter.