Monday, January 10, 2011

Division I Defines the Limits of Growth Management Hearings Boards' Authority

(Docket No. 64751-2, File Date 12/7/10)

Growth Management Hearings Boards are creatures of statute, without common-law or inherent powers.  Because the Boards' power to fashion a remedy is strictly constrained by the Growth Management Act ("GMA") and because the GMA does not provide a requirement that Boards must invalidate ordinances adopted in violation of the the State Environmental Policy Act ("SEPA"), Boards are not required to invalidate such ordinances, according to the recent decision of the Division I Court of Appeals in Davidson Serles & Assoc. v. Central Puget Sound Growth Mgmt. Hearings Board.  The decision is a victory for efficiency in growth-management planning inasmuch as it clarifies the Growth Management Act.

The action involved a rezone and a comprehensive plan amendment to allow taller building heights in an area of downtown Kirkland.  As part of the process, the City issued an Environmental Impact Statement ("EIS") that lacked any meaningful evaluation of alternative proposals.  Neighboring property owners appealed the City's enactment of the amending ordinances. The Board remanded the SEPA determination to the City for further review and compliance with SEPA, but determined that the goals of the GMA would be undermined by invalidating the ordinance.

Quoting RCW 36.70A.300(4), the court said that "[e]ven upon a Board's finding of noncompliance and order of remand, comprehensive plans and development regulations remain valid "[u]nless a board makes a determination of invalidity as provided in RCW 36.70A.302."  The court found that the necessary elements for invalidations in RCW 36.70A.302(1) were not present..

The court held that while Boards are required to administer the state laws in accordance with SEPA policies, they are not required to always invalidate an ordinance that was enacted based on a noncompliant EIS.  The decision to remand was consistent with SEPA's policies.  In summary, the decision reminds us that the authority of Boards to invalidate an ordinance is neither mandatory nor absolute.

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