Chronology of the Anacortes case

The following is intended to outline the key steps in the Washington State Supreme Court case Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. This is commonly referred to as the “Anacortes case” because that city's critical areas ordinance (CAO) is the topic of the decision. The Supreme Court issued its Mandate (final action) in this case on June 10, 2009. The outline below provides background on this case. Relevant documents can be accessed under "Links" at the bottom of this chronology.

ESHB 1933

In 2003 the Legislature enacted ESHB 1933, which amended both the Shoreline Management Act (SMA) and the Growth Management Act (GMA). The intent of ESHB 1933 was that critical areas in shoreline jurisdiction 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 jurisdiction would be governed solely by the local SMP “as of the date” the department of Ecology approved an SMP for that jurisdiction. The controversy in Anacortes arose because of differing interpretations of this statutory language.

Anacortes GMHB decision

The question of timing arose in 2005 in a dispute between Futurewise and the City of Anacortes over a locally adopted CAO, in an appeal to the Western Washington Growth Management Hearings Board (Board). In the case, the Board was presented with two arguments:

The City of Anacortes argued that the transfer of critical areas protection in shorelines occurred "retroactively," transferring authority over those critical areas to the city's existing SMP when it was adopted in 2000.
The departments of Ecology and Community, Trade, and Economic Development (CTED) filed an amicus brief with the Board that took the position that the transfer takes place prospectively, upon Ecology's approval of a comprehensive SMP update as consistent with the shoreline guidelines adopted in 2003.
The Board expressly rejected the City's retroactive interpretation. But it also rejected the State's assertion that the transfer could wait until jurisdictions update their SMPs in accordance with deadlines set in the SMA. The Board ruled that the transfer takes place when the City adopts new critical area regulations that affect shorelines. The Board ruled that to the extent the City's critical area regulations apply to shoreline areas, they must be submitted to Ecology for review and approval as SMP amendments before the updated regulations take effect within shoreline jurisdiction.

Appeal to Superior Court

When Futurewise appealed the Board's decision to superior court, CTED and Ecology intervened to provide argument on the state’s interpretation of ESHB 1933. The state agencies joined Futurewise, Evergreen Islands, and Skagit Valley Audubon Society in the appeal on the basis that the Board’s decision:

Conflicted with the plain language of ESHB 1933.
Potentially created significant gaps in regulation that protects human health and safety and environmental resources in shoreline areas.
Created significant procedural and workload problems for local governments and Ecology.

The Superior Court accepted the state’s arguments and reversed the Board’s decision.

The City of Anacortes, joined by the Washington Public Ports Association (WPPA), appealed the Superior Court decision to the State Supreme Court.

Appeal to Supreme Court

On July 31, 2008, in response to the appeal filed by the City of Anacortes, the Supreme Court issued a decision in Futurewise v. Western Washington Growth Management Hearings Board, et al. In their ruling, the Court reinstated the 2005 decision by the Board and overturned the Superior Court decision.

Requests for Reconsideration

On Aug. 20, 2008, The Washington state departments of Community, Trade and Economic Development (CTED) and Ecology filed a motion asking the state Supreme Court to reconsider its July 31 decision. On December 3, 2008, the Court filed an order asking for a response to the reconsideration request. View Court Order 80396-0 (pdf). View Reconsideration Request (pdf). Concerns identified in the motions for reconsideration included:

Because no legal analysis in either opinion received five votes, the decision contains no clear legal holding or conclusion to guide the lower courts, the Growth Management Hearings Boards, local governments, or landowners. This lack of a clear holding may create significant confusion and uncertainty for local governments and shoreline property owners.
Both the plurality's legal analysis - which was not agreed to by a majority of the court - and the reinstated Board decision have significant, adverse consequences for local governments and shoreline property owners that the Court may not have intended. These include the potential for uncertainty about the status of 140 existing critical areas ordinances – which creates uncertainty on vital issues including shoreline protection, access to flood insurance, and local governments' eligibility for state grants and loans.

Several local governments and the Washington State Association of Counties also filed pleadings related to this request for reconsideration.

Mandate (final action)

On June 10, 2009, the state Supreme Court issued its Mandate (final action) in Futurewise, et al. v. Western Washington Growth Management Hearings Board, et al. The Court also issued an order declining several requests to reconsider their July 31 decision. The result of the Court action is to reinstate the 2005 Western Washington Growth Management Hearings Board decision regarding the City of Anacortes Critical Area Ordinance.

Links

ESHB 1933
Western Washington Growth Management Hearings Board Final Decision and Order (pdf) (Case 05-2-0016. See especially pages 21–31)
State Supreme Court July 31, 2008 decision:
- Court’s July 31, 2008 Decision (pdf, Contains both opinions below)
  - 803960MAJ - Supreme Court of the State of Washington Opinion Information Sheet Docket Number: 80396-0 Title of Case: Futurewise v. W. Wash. Growth Mgmt. Hearings Bd.
    File Date: 07/31/2008 Oral Argument Date: 11/29/2007
  - 803960Di1 - Supreme Court of the State of Washington Opinion Information Sheet Docket Number: 80396-0 Title of Case: Futurewise v. W. Wash. Growth Mgmt. Hearings Bd.
    File Date: 07/31/2008 Oral Argument Date: 11/29/2007
State's Motion for Reconsideration (pdf) (Denied by Supreme Court June 10, 2009)
State Supreme Court Mandate rejecting request for reconsideration and affirming the July 31 2008 decision. View Mandate (pdf).