On May 29, the Washington State Supreme Court denied the State’s motion for reconsideration in the case of Futurewise v. Western Washington Growth Management Hearings Board, 64 Wn.2d 242, 189 P.3d 161 (2008). Futurewise dealt with the division of statutory authority between the Shoreline Management Act (SMA) and the Growth Management Act (GMA) with respect to critical areas that exist within shoreline jurisdiction in the wake of ESHB 1933 (codified at RCW 36.70A.480).
ESHB 1933 was adopted in 2003 in an effort to clarify which planning requirements apply to shoreline areas implicated by both the Shoreline and Growth Management Acts. Prior to the 2003 amendment, critical areas within shoreline jurisdictions were typically dealt with under local critical areas ordinances enacted pursuant to GMA authority, although such lands were technically subject to the jurisdiction and regulations of both Acts.
In denying the motion, the Supreme Court left intact a plurality decision that provides no firm precedent for the legal community or local jurisdictions. Making matters worse, as the State’s motion emphasized, the Futurewise majority simply reinstated the underlying decision of the Western Washington Growth Management Hearings Board (the Board), despite the fact that the reasoning employed by the Board is irreconcilable with the reasoning relied upon by the four-justice plurality opinion. Furthermore, even if the Board’s decision is accepted as an accurate statement of the controlling law, new problems are encountered in the form of regulatory gaps that the Board’s holding creates.
ESHB 1933’s Ambiguity
The Board, the Futurewise plurality, and the Futurewise dissent all agreed that ESHB 1933 imposed heightened substantive requirements on local jurisdictions in accounting for critical areas in their SMPs. ESHB 1933 required SMPs afford a level of regulatory protection to shoreline critical areas at least equal to that provided non-shoreline critical areas under local critical areas ordinances. This change is significant because the SMA instructs jurisdictions to rely on pertinent scientific resources only “to the extent feasible” (RCW 90.58.100) in preparing their SMPs. The GMA critical areas provision, on the other hand, demands that jurisdictions enlist the “best available science” when developing their critical areas ordinances. Furthermore, the Board, the Futurewise plurality and dissent agreed that the clear intent of the statute was to make the SMA the only statute with regulatory jurisdiction over the critical areas within shorelines and strip the GMA of its concurrent jurisdiction. “The dispute,” as the Board put it, “[was] over timing,” not substance.
The specific language at issue in Futurewise reads as follows:
The ambiguity that emerged in Futurewise was whether the triggering event making the SMA the sole source of shoreline critical areas regulations was the date of the most recent Department of Ecology (DOE) approval of local SMPs under the then-applicable requirements—which made no reference to non-shoreline critical area regulations embodied in local GMA development regulations—or will be the forthcoming date of DOE approval of SMPs that have been revised under the new requirements. Put another way, should “the date the department of ecology approves” be given a prospective reading such that critical areas ordinances remain in force, or a retrospective reading so that those ordinances became obsolete upon adoption of ESHB 1933.
Futurewise’s Procedural Background
In April of 2005, the City of Anacortes passed Ordinance 2702 pursuant to its obligations under the GMA to protect critical areas through development regulations. The City simultaneously repealed its old critical areas ordinance. When Futurewise—a non-governmental organization that monitors jurisdictional compliance with environmental and land use statutes—appealed the City’s ordinance to the Board, it set in motion a series of appeals that led to the Supreme Court’s problematic decision. Futurewise claimed, inter alia, that the regulations in the ordinance pertaining to critical areas within the City’s shorelines were inadequate under the GMA.
The Issues
Anacortes’ legal defense seized upon the aforementioned ambiguity concerning when and how the transfer of jurisdiction over shoreline areas was to be effectuated. The City’s theory was that ESHB 1933 rendered the GMA inapplicable to critical areas of shorelines immediately upon adoption, and therefore the adequacy of Ordinance 2702’s protection of those areas must be evaluated under the SMA. Because the City had not enacted an updated SMP for DOE approval since the passage of ESHB 1933 and was not due to do so until 2012, the argument continued, any challenge to its regulation of critical areas of shorelines since that time was not yet ripe for review.
The City’s argument raised two issues. First, did ESHB 1933 immediately strip the GMA of its jurisdiction over critical areas within local shoreline jurisdictions? If it did, as the City maintained, then the City’s ordinance could not be invalidated for failure to meet GMA obligations because those obligations were no longer in force in areas covered by local SMPs. Secondly, if it did not and the GMA remained in force until updated SMPs gained DOE approval, then could a local jurisdiction update its critical areas ordinance prior to updating its SMP if the new ordinance is passed ahead of the SMP update schedule?
The Competing Interpretations
The State’s Community, Trade and Economic Development Department (CTED) released administrative guidelines interpreting the legislature’s enactment of ESHB 1933, which answered the first question negatively and the second question affirmatively. That is, the CTED guidelines interpreted ESHB 1933 to say that critical area ordinances continue to govern shoreline critical areas until the DOE approves an updated SMP. Furthermore, the guidelines said that jurisdictions may update their critical areas ordinances prior to updating their SMPs and that those updates would continue to be governed by GMA requirements. According to the CTED’s reading, then, Ordinance 2702 could be invalidated for failing to meet GMA requirements up until the time the City’s updated SMP gained DOE approval, at which point the GMA would be stripped of its jurisdiction in areas that fall under the jurisdiction of the SMA.
When Futurewise appealed Ordinance 2702 to the Board, the Board agreed with CTED that existing critical areas ordinances enacted under the GMA continue to be valid until updated SMPs receive approval. However, it diverged on the second issue and held that updates to critical areas ordinances—such as Anacortes’ Ordinance 2702—that occurred after the passage of ESHB 1933 must be treated as though they were updates to the jurisdiction’s SMP and therefore could not be reviewed under the GMA. The Board reasoned that allowing amendments to regulations pertaining to critical areas within the shoreline jurisdiction to be governed by the GMA would frustrate the clear legislative intent to transfer control of those areas to the SMA. Accordingly, despite the fact that Futurewise’s appeal was based in the GMA, the Board concluded that it was properly understood as an appeal of an updated SMP under the SMA. The appeal was then dismissed on ripeness grounds because the DOE approval process was not complete.
The case was eventually appealed all the way to the Washington Supreme Court where a four-justice plurality decision purporting to reinstate the Board decision—which had been reversed in subsequent appeals —narrowly garnered a fifth vote (concurring in judgment only) to win out over a strong dissent. The plurality and dissent split on the first issue, the former finding that ESHB 1933 stripped the GMA of its shoreline jurisdiction immediately upon passage, the latter siding with the Board and finding that the GMA remained in effect until updated SMPs gain DOE approval.
The Futurewise plurality opted for the retrospective reading because it better served the “legislature’s intent that the SMA, not the GMA should cover shorelines.” The dissent countered that the plurality’s reading frustrated the “legislature’s clearly expressed purpose that management of critical areas under the SMA take on some of the features of management under the GMA.” The disagreement was no doubt fairly predictable, as the amendment served two aims: simplifying regulation of shoreline critical areas by reviewing compliance under a single Act, and ensuring that regulations were held up to the more stringent requirements embodied in the GMA’s critical areas provision. Resolving the ambiguity taken up in Futurewise necessarily required favoring one objective at the expense of the other.
Why the Various Interpretations are Problematic
The problem of how to interpret ESHB 1933 is not merely an academic one, as most jurisdictions primarily relied on their critical areas ordinances to regulate critical areas within their shorelines before ESHB announced that the GMA—at some point or another—would no longer apply to critical areas of shorelines. If those ordinances are immediately stripped of their jurisdiction within shorelines—as the plurality would have it—and the considerably less robust SMPs made the only effective body of regulations, those areas are likely to remain under regulated for many years, depending upon local SMP update timelines. This result is troubling given that those lands were originally thought so important that they were accounted for in both major development-planning statutes.
Conversely, if the dissent’s prospective reading were adopted, then the GMA would continue a lame-duck administration over shoreline critical areas, bowing out of local jurisdictions in piecemeal fashion as revised SMPs gained DOE approval according to local timelines. Such an approach would seem to undermine the purpose of clarifying which statute governs shoreline critical area planning, or at least forestall the realization of that purpose many years.
Though the Board’s approach would seem to offer a sensible compromise of the amendment’s two goals where the combating Supreme Court opinions favor one or the other, it too is flawed because it creates a lacuna in the protection of shoreline areas that could span several years, depending upon local timelines. The reason is that it overlooks the fact that Anacortes repealed its previous critical areas ordinance at the same time it enacted the new ordinance. Because the previous ordinance was repealed at the time the new ordinance was enacted, and the new ordinance cannot be reviewed under the SMA until the DOE approves it, Anacortes’ new regulations pertaining to critical areas of shorelines cannot be reviewed under either Act for as long as it takes the DOE to sign-off on the new SMP. This result could be avoided by either allowing critical areas ordinances to be updated prior to a new SMP gaining DOE approval, or prohibiting local governments from repealing their old critical areas ordinances until the new SMP is approved.
Finally, there is the additional issue that the plurality’s decision and the Board’s decision are incompatible. While the court found Anacortes’ shoreline critical areas regulations in compliance because its existing SMP received DOE approval under the old requirements, the Board merely found that any regulation of the critical areas of shorelines after the passage of ESHB 1933 had to be considered part of the SMP update process, and that Ordinance 2702 was not ripe for review because it had not yet received DOE approval; the court denied the continued applicability of the GMA in shorelines while the Board affirmed it.
Pending Legislative Action
Of all the above, the interpretation offered by the CTED in its administrative guidelines—which the Futurewise dissent essentially agreed with—seems preferable, as it would allow local jurisdictions to update their GMA ordinances with their shoreline critical areas regulations intact, while also allowing for the continued review of such updates under the GMA. In response to the Futurewise decision, the Washington State Legislature has taken action in the form of two companion bills—HB 1653 in the house and SB 5726 in the Senate—which appear to take the department’s (and dissent’s) view. The Bills clearly stipulate that critical areas “within the jurisdiction of the shoreline management act must be governed by the shoreline management act” (HB 1653(1)(1), SB 5726(1)(1)), but also clarify that the SMA so applies “only upon department of ecology approval of a comprehensive updated shoreline master program meeting the requirements of [the SMA]” (HB 1653(1)(2)(a), SB 1653(1)(2)(a)). Thus, the Bills clarify that ESHB 1933 contemplated that the shoreline management act would take sole jurisdiction over critical areas of shorelines only after local SMPs received DOE approval under the new SMA requirements.
Additionally, the bills explicitly provide that critical areas ordinances adopted or amended pursuant to GMA authority after the passage of ESHB 1933 remain valid until a new SMP gains DOE approval per SMA requirements (see HB 1653(1)(3), SB 1653(1)(3)). The legislature’s proposed Bills therefore avoids the Board’s interpretation and ensures that no gaps result from jurisdictions updating GMA critical areas ordinances before developing and getting approval for updated SMPs.
Conclusion
If passed, the House and Senate Bills could finally settle the confusion surrounding the merger of critical areas regulation into the SMA. In their present form, the Bills are poised to ensure that the GMA does not relinquish its jurisdiction over shorelines until the moment that the Department of Ecology approves any given jurisdiction’s updated shoreline master plan. Although this will result in a period where some jurisdictions are regulating critical areas of shorelines under the GMA, while others are regulating under the SMA, it is also the only way to ensure that regulatory protection of critical areas remains in place at appropriate levels while the jurisdictional switch is being made. The amendments would have the added benefit of providing the clarity so crucial to land use law that is wanting under the current state of affairs.
