Court of Appeals will consider growth board decision

On April 19, 2006, the Western Washington Growth Management Hearings Board granted an appeal filed by the Departments of Ecology and Community, Trade and Economic Development challenging Kent's new Critical Areas Ordinance (CAO).  According to the board, the state's best available science requires bigger wetland buffers than the city adopted, even if the city is providing adequate protection for wetland functions and values through other programs, including stormwater control rules, wetland restoration and enhancement projects, and open space requirements.  The GMHB held that bigger buffers are required, even if there is no evidence that existing buffers are inadequately protecting the environment and even if there is no evidence that existing buffers would produce any environmental benefit.

The Master Builders Association of King and Snohomish Counties, Building Industry Association of Washington, Seattle-King County Association of REALTORS® and the Pacific Legal Foundation all intervened on behalf of the City of Kent in the state's appeal to the Hearings Board, arguing that wetland protection can be achieved by methods other than Ecology's increased buffers.

According to the Master Builders Association of King and Snohomish Counties' Executive Officer, Sam Anderson, "The Board ruled, in effect, that the Department of Ecology's vision of what constitutes best available science supercedes all other Growth Management Act goals, including affordable housing, reducing sprawl, economic development and protecting private property rights."

Kent's Critical Areas Ordinance package was negotiated with a diverse group of stakeholders.  The city's elected officials found that the resulting ordinance was effective and had community buy-in, and adopted it.

MBA South King County Manager said, "Kent's city council adopted this ordinance on a unanimous vote, and it includes a flexible approach for land owners, no infringement on property rights and enhancement for degraded wetlands.  Our approach is a better buffer rather than a bigger buffer."

The Court of Appeals recently agreed to hear an appeal of the GMHB's decision, allowing the parties to skip review at the Superior Court level to save time and expense.

Under Washington law, the Growth Management Hearings Boards are required to presume a local ordinance to be valid unless "clearly erroneous."  The Washington Supreme Court has recently admonished the Hearings Boards to defer to local government decisions under the Growth Management Act unless they are in clear violation of a GMA statute.

This case is clearly important to the process now taking place with Jefferson County's critical areas ordinance review and update.  The Western Washington Growth Management Hearings Board has demonstrated its reluctance to accept deviations from the Department of Ecology's BAS package, even when those deviations represent an improvement in buffer function over and above that achievable through increased buffer widths.

Their reluctance in the City of Kent's case does not mean that we should accept Ecology's BAS and unquestioningly fully incorporate it into Jefferson County's update.  While Kent may have lost at the Hearings Board level, recent history in the appellate courts indicates that the city may well prevail at the Court of Appeals or the Supreme Court, if further review is necessary.  It does, however, mean that we need to learn where Kent's strengths and weaknesses in their approach were, so that we can capitalize on their strengths, and improve in those areas where they were vulnerable.

It's good that we are able to learn more about building policy from a local citizen level, whether from our successes or the challenges faced by other localities.  Working together, we can retain our local governance where we still have it, and regain those areas of local governance that have been absorbed into state agency operations.

There's no time like the present!