SMA - Futurewise v. Anacortes Decision

Washington State Department of Ecology

Ecology home > SEA Program home > Shoreline Management Home > Futurewise v. Anacortes Decision

Updated Ecology/Commerce Guidance on Futurewise et al v. Western Washington Growth Management Hearings Board and City of Anacortes et al addressing shorelines and critical areas

Updated October 19, 2009

Local governments are considering what actions to take regarding application of their Critical Areas Ordinances (CAOs) within shoreline jurisdiction following the recent Washington State Supreme Court decision in the “Anacortes” case. The Departments of Ecology and Commerce (formerly CTED) have reviewed the Court's decision and offer the following guidance. As explained below, because of the nature of this split decision, we do not believe that the decision creates a requirement for already-adopted CAOs to be retroactively submitted to Ecology as proposed SMP amendments. Additional guidance is provided below regarding the June 2009 Supreme Court mandate on Futurewise v Anacortes and the September 2009 Court of Appeals Division II in KAPO v Kitsap County.

Supreme Court Action - June 2009

On June 10, 2009 the Washington State Supreme Court issued its final ruling in Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. This case addressed protection of critical areas that are within the jurisdiction of the Shoreline Management Act. Specifically, the Supreme Court was asked to interpret Engrossed Substitute House Bill (ESHB) 1933, which passed the legislature in 2003. The case is commonly referred to as the "Anacortes case" because that city's critical areas ordinance (CAO) is the topic of the decision.

When the court issued its final ruling, formally known as a "mandate," it also denied the Motion for Reconsideration filed August 20, 2008 by the Departments of Ecology and Community, Trade and Economic Development (now Department of Commerce). The agencies had requested that the Court reconsider its July 31, 2008 decision to clarify the outcome.

In the Anacortes case, the Supreme Court issued a 4-1-4 decision. The Court issued two opinions -- a "lead" opinion and a dissenting opinion, each supported by four justices. The ninth (and deciding) justice concurred with the lead opinion with the stipulation that her signature supported "result only." This deciding vote was unaccompanied by an opinion.

Due to the nature of this split decision it was not clear whether the Board decision applies beyond the City of Anacortes. It takes a majority of justices (in this case, five votes) for a Court opinion to establish a legal precedent that is binding on subsequent cases. Here, there is no majority Court opinion beyond reinstatement of the 2005 Board decision, and neither of the Court opinions endorsed the Board's reasoning in the Anacortes decision. In addition, other recent Supreme Court decisions have stated that Growth Boards decisions resolve disputes related to specific local government actions under the Growth Management Act, but do not establish policy.

Court of Appeals Decision - September 2009

In September 2009 the Court of Appeals Division II issued a decision in Kitsap Alliance of Property Owners et al v. Central Puget Sound Growth Management Hearings Board et al No. 38017-0-II. This decision involved Kitsap County’s update of Critical Area provisions in the Shoreline area. The decision relies on the June 2009 Supreme Court decision discussed above. Specifically, Division Two concluded that, when the Supreme Court cannot garner a majority view for resolving an issue, the position of the court is the position of a majority of justices concurring on the narrowest possible grounds. Here, reinstatement of the Anacortes Growth Board decision was the narrowest possible grounds for five justices’ concurrence. Thus, Division Two applied the Growth Board decision to the Kitsap County CAO.

As a result, the court remanded the matter to Kitsap County to do its planning for shoreline critical areas under the SMA rather than the GMA. The court did not address the issue of whether the County’s prior CAO continues to apply until the SMA planning effort is complete. However, the Growth Board decision in the Anacortes case held that prior CAOs remain in effect until the SMA planning is complete. Since Division Two found that reinstatement of the Growth Board decision was the “decision” of the Supreme Court, it is our position that prior CAOs do remain in effect until a local jurisdiction completes its planning under the SMA.

Implications of the Two Court Decisions

Kitsap County has moved for reconsideration of the Division Two decision. As such, the decision is not yet final. However, for purposes of providing interim guidance, we want to put forth our perspective on how to proceed from here.

First, it is our position that neither decision affects critical areas ordinances that were adopted prior to the effective date of ESHB 1933 (2003). Those ordinances remain in effect
Second, it is our position that CAOs that were adopted after the effective date of ESHB 1933 and are not currently subject to a challenge are valid and remain in effect. This is based on the GMA’s requirement that CAOs are presumptively valid and must be challenged within 60 days of their enactment for a GMHB to determine that the CAO is invalid. If the CAO was not challenged within 60 days or if the appeals have been completed, then local governments are not required to revisit the critical areas protections contained in those ordinances.
Third, it is our position that, moving forward, local governments that are currently updating their protections of shoreline critical areas should do so under the SMA rather than the GMA. This can be done either as part of a comprehensive SMP update or as a stand-alone amendment that complies with the guidance that Ecology has issued for stand alone amendments. However, cities and counties should be careful that the adopting ordinance for any CAO updates clearly ensures the existing CAO remains in place for critical areas within Shorelines until superseded by an Ecology-approved SMP update.
Fourth, local governments have the authority and the obligation under the SMA and their existing SMPs to review and condition project proposals in the shoreline area to achieve consistency with the SMA’s policy objectives, including protection of shoreline resources. The legislature directed in ESHB 1933 that local shoreline master programs provide protection of critical areas in shorelines at least equal to the protection provided by their CAO (RCW 36.70A.480(4)).

Guidance on stand-alone "critical area segment" SMP amendments

To resolve uncertainties created by these cases, we appreciate that some local governments may decide that their best path forward is to request Ecology review of their locally-adopted CAO as an amendment to their SMP. The Shoreline Management Act provides for "critical area segment" amendments to SMPs, provided they meet "applicable shoreline guidelines."

Ecology has issued guidance on submittal requirements for stand-alone Critical Area Segment amendments to SMPs:

Potential clarification

Additional clarification may come from reconsideration of the KAPO decision, additional court decisions or legislative action. We will continue to update this web page.