Court of Appeals victory for Center’s clients in two, high-profile Spokane land use cases also shows how, under Washington law, developers can win even when bad decisions get reversed.
Kathy Miotke and Julia McHugh finally got their days in court last month as the lead plaintiffs in two of the most hard fought and politically volatile land use cases in Spokane County history. The long awaited verdicts came yesterday, when a state Court of Appeals panel put a succinct but less than momentous end to the proceedings.
While leaving intact the state administrative
Kathy Miotke on Five Mile Prairie, 2006.
findings in their favor, the appeals panel rendered as “moot” the legal issues that lawyers on both sides had asked the court to weigh in on. Click here to read the Appeals Court decision.
At least on paper, Miotke and McHugh won.
By dismissing Spokane County’s appeal of decisions by the Eastern Washington Growth Management Hearings Board (EWGMHB) favoring Miotke and McHugh, the appeals court vindicated the two activists in their long-standing convictions that the Spokane County Commissioners blatantly violated state rules in opening up large tracts on Five Mile Prairie and rural west Spokane for urban development in 2005.
“The Court of Appeals decision leaves in place two decisions of the hearings board that significantly impact how counties expand their urban growth area boundaries,” said CFJ attorney Rick Eichstaedt, who argued on behalf of the plaintiffs. “These decisions make it clear that decisions to expand growth boundaries must be supported by adequate governmental services and must be based upon a land quantity analysis prepared by the county and not the developers, who have an interest in expanding the boundary.”
The hearings board’s 2005 and 2006 findings not only favored the two women and their co-plaintiffs (the Neighborhood Alliance and the Pallisades Neighborhood) but they hammered the Spokane County Commissioners for running roughshod over Washington’s Growth Management Act.
The Appeals Court didn’t take issue with hearings board’s strongly-worded findings.
“The [hearings] Board determined that the [comprehensive plan] amendment was a clearly erroneous act,” Acting Chief Judge Teresa Kulik wrote for the panel. And while the county had “started a process to comply with the Board’s order,” she wrote, it then repealed the amendment. “This appeal is then moot.”
The County Commissioners’ decision to repeal its amendment came after the clearly frustrated hearings board publicly noted that it had stopped just short of recommending economic sanctions against the county for its intransigence in moving to comply with the
A vested bulldozer, Pallisades rural area, 2006.
Growth Management Act.
But here’s the rub. For the land use developers who persuaded the 2005 commissioners (Phil Harris, Todd Mielke, and Mark Richard) to overturn the recommendations of the county’s planning commission and approve the expansions, they’re in. The urban-style developments were given the green light even though the county reversed course, essentially conceding that its decision to approve urban density development in the two areas was, at best, premature.
It is an outcome that seemed to surprise Judge Dennis J. Sweeney as he questioned Eichstaedt during oral arguments on April 23rd.
“Let me make sure that I’m following this,” Judge Sweeney asked Eichstaedt, “If you designate an area an urban growth area and the development that that urban growth area accommodates actually takes place, the municipality can’t then change its mind and say ‘this is not an urban growth area?’”
“That’s correct,” said Eichstaedt.
“But that didn’t happen here,” Judge Sweeney said, seeking clarification.
“It did happen here,” Eichstaedt corrected. “The urban growth boundary area was created, properties or developments were vested. In many cases those developments have either been completely constructed or are in the process of being constructed. And the urban growth area designation has been pulled.”
And that was why, Eichstaedt emphasized, the hearings board had approached the cases as a way to reaffirm one of the “bedrock” principles of the state’s Growth Management Act: that “urban growth, at urban densities is supposed to occur in urban growth areas.”
Julia McHugh, at Pallisades open house, 2006.
The paradox is that, if anything, the “vested” rights of developers run deeper and are more solidified than the bedrock principles of the Growth Management Act.
Under the explicit terms of the GMA, a developer’s rights to develop a property are “vested” and therefore secured once the developer has completed a valid permit application with the respective county or municipality. Thus, even a later finding by a hearings board and/or court that the underlying land use determination was “invalid” does not extinguish the developer’s “vested” rights. (RCW 36.70A.302) And that’s what happened in the Miotke and McHugh cases.
The facts of the Miotke case illustrate what many land use critics consider to be a fundamental flaw in the state’s Growth Management Act.
Speaking to a large group of concerned citizens at a June 6, 2006 meeting in downtown Spokane, Spokane County planner Steve Davenport recounted the sequence of events in the case and said: “It’s kind of a loophole in the way the state law is written.”
One unusual aspect of the proceedings before the Court of Appeals panel is that both sides asked the panel to resist finding the cases “moot” and, instead, use the Miotke and McHugh cases as a route to a substantive ruling that would provide legal guidance for future cases.
Five Mile Prairie construction, early 2006.
Whereas Eichstaedt argued that the court’s guidance was needed to reaffirm the hearings board findings on key planning responsibilities for top city and county decision-makers, county attorney Dave Hubert implored the judges to rule that land use hearings boards must strongly defer to the judgment of elected officials as to the adequacy of studies and procedures needed to implement the GMA at a local level.
Hubert’s argument brought a half smile and a pointed question from Judge Stephen Brown who asked him whether Spokane County’s practice of allowing developers to produce a key land use analysis required by the GMA was akin to letting “the fox guard the hen house.”
“Well,” Hubert replied with a straight face. “Somebody has to do it.”
Posted May 30th