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March 19, 2010: This web page is provided for historical reference only. On March 18, 2010 EHB 1653 was signed into law. EHB 1653 clarifies the issues discussed on this web page. We include this page solely as a reference document in understanding the history of the issues that have been resolved by adoption of EHB 1653.
The Departments of Ecology and Commerce offer the following guidance for local governments that are considering actions regarding application of Critical Areas Ordinances (CAOs) within shoreline jurisdiction following the July 2008 Washington State Supreme Court decision in Futurewise et al v. Western Washington Growth Management Hearings Board et al., commonly known as the “Anacortes” decision. More detailed legal background on the Hearings Board decision, Supreme Court case and subsequent appellate court decisions are provided separately.
We prepared this guidance in consultation with the state attorney general’s office, as our best interpretation of a confusing situation for local governments. We appreciate there are other possible interpretations of the court decisions. Local jurisdictions should consult with legal counsel if they are unclear on the result of the cases.
The Anacortes Court decision involves interpretation of a 2003 law (ESHB 1933) that required critical areas in shoreline jurisdiction to be protected solely by Shoreline Master Programs (SMPs) adopted under the SMA, rather than by critical areas ordinances (CAOs) adopted under the GMA. The law provided that critical areas in shoreline areas would be governed solely by the local SMP “as of the date” the department of Ecology approved an SMP for that jurisdiction.
The issue in the Anacortes case arose due to differing interpretations of this statutory language. Ecology and Commerce interpreted the statute to mean that “sole jurisdiction” for regulation of critical areas within shoreline areas shifted to local SMPs only after Ecology’s approval of an SMP comprehensive update according to a schedule set by the 2003 Legislature. In December 2005, the Western Washington Growth Management Hearings Board held that Anacortes could update their CAO standards within Shoreline areas only through an amendment to the city’s Shoreline Master Program (Evergreen Islands, Futurewise and Skagit Audubon Society v. City of Anacortes). The Board decision was first reversed by Superior Court, but was reinstated in 2008 by the state Supreme Court. However, the Court’s “4-1-4” split decision is confusing because neither of its written opinions received support of a majority of the Court.
The key practical question for local governments concerns timing: when does a local SMP become the sole regulation for critical areas that are within shoreline jurisdiction?
Ecology and Commerce believe that the Supreme Court or Hearings Board decisions do not affect critical areas ordinances that were adopted prior to the effective date of ESHB 1933 in 2003. The legislature did not include explicit language applying the statute retroactively. Although the “lead opinion” in the Anacortes Supreme Court decision held the statute does apply retroactively, that opinion was not supported by the necessary five votes.
We also believe that CAOs that were adopted after the effective date of ESHB 1933, and are not currently being challenged, are also valid and remain in effect – including shoreline areas that are designated as Critical Areas. This is based on a fundamental statutory provision in the GMA that holds GMA actions are presumed valid upon adoption. In the perspective of Ecology and Commerce, if a CAO was not challenged within 60 days or if appeals have been completed, then local governments are not required to revisit the critical areas protections contained in those ordinances.
Counties and cities may still amend their critical areas ordinances as they apply to areas other than shoreline areas. However, Ecology and Commerce recommend that any new protections for critical areas within shoreline jurisdiction be adopted under the SMA rather than the GMA.
There are two approaches:
Cities and counties should be careful to ensure that the adopting ordinance for any CAO update retains the existing CAO for critical areas within Shorelines until superseded by an Ecology-approved SMP updates
Ecology and Commerce appreciate there are other interpretations of the Anacortes case. Some jurisdictions have interpreted the case to mean that existing CAOs do not apply within shoreline areas. Others have adopted emergency interim controls to apply their CAOs within shoreline jurisdiction. Some local governments may decide that their best path forward is to request Ecology review of their existing locally-adopted CAO as an amendment to their SMP (see guidance below).
The Shoreline Management Act provides for "critical area segment" amendments to SMPs, provided they meet "applicable shoreline guidelines." Ecology has issued guidance on submitting stand-alone Critical Area Segment amendments to SMPs:
Tom Clingman, Department of Ecology, 360-407-7448
Tim Gates, Department of Commerce, 360-725-3058
Copyright © Washington State Department of Ecology. See http://www.ecy.wa.gov/copyright.html.
