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The following provides background information on 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 Anacortes decision involves interpretation of ESHB 1933, a 2003 Legislative enactment that 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. Before this legislation, local governments applied both the CAO and the SMP where the provisions of the two local regulations overlapped. 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 the Anacortes case arose because of differing interpretations of the timing of this shift from "overlapping" jurisdiction to "sole" jurisdiction.
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 Board expressly rejected the City's retroactive interpretation. However, it also rejected the State's assertion that the transfer could wait until jurisdictions update their SMPs in accordance with the comprehensive update 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.
The Board decision contains apparently contradictory language regarding the status of Critical Area regulations in Shorelines prior to the updated Anacortes CAO being approved as an SMP amendment:
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. There was significant concern that the unclear language of the decision could create confusion regarding what regulations apply in Shoreline areas. The state agencies joined Futurewise, Evergreen Islands, and Skagit Valley Audubon Society in the appeal on the basis that the Board’s decision:
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.
On July 31, 2008, in response to the appeal filed by the City of Anacortes, the Supreme Court issued Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. The Supreme Court issued what is referred to as a 4-1-4 split decision. There are two written 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. 2
The Supreme Court decision reinstated the Hearings Board decision regarding the Anacortes CAO. The City must process critical area regulation updates in the Shoreline area as a Shoreline Master Program amendment, to meet the requirements of ESHB 1933 as interpreted by the Board. However, given the nature of the Court decision and inconsistencies in the original Board decision, there is lack of clarity on several points.
One key question is whether the Court decision applies beyond the City of Anacortes. Due to the nature of this split decision it is not clear to what extent 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. This uncertainty is apparent in two Court of Appeals cases. The two decisions disagree as to whether he Growth Board decision has precedential value. 3
There are also varying interpretations of the Hearings Board decision regarding the status of CAOs adopted since 2003. Key elements of the Hearings Board decision:
One interpretation is that CAO actions since 2003 within Shorelines are still valid under the Anacortes decision, but these CAO actions could be subject to appeal until final approval by Ecology as an SMP update.
On Aug. 20, 2008, the Washington state departments of Community, Trade and Economic Development (now known as Department of Commerce) 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:
Several local governments and the Washington State Association of Counties also filed pleadings related to this request for reconsideration.
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 "KAPO" decision 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. Because Division Two found that reinstatement of the Growth Board decision was the "decision" of the Supreme Court, this case can be considered support for Ecology and Commerce guidance that prior CAOs remain in effect until a local jurisdiction completes its planning under the SMA.
In November 2009, the Court of Appeals Division II issued a decision in Eloise Kailin, et al v Clallam County and Department of Ecology. In the "Kailin" decision, the court found the Shorelines Hearings Board lacks jurisdiction over a permit issued under a CAO if the CAO has not been incorporated into the shoreline master program. However, the court also discussed the applicability of ESSB 1933 and the Futurewise decision. The court noted that there is no majority rationale of the Futurewise case. The only conclusion that can be drawn from the case is that five justices agreed that "the decision of the trial court is reversed, and the decision of the Western Washington Growth Management Hearings Board upholding Anacortes is reinstated."
The court declined to speculate on whether the WWGMHB decision has any precedential value. In doing so, it pointed out that the Growth Board decision conflicts somewhat with both the plurality and dissenting opinions.
The court concluded there was no basis for drawing parallels between the Futurewise case, which involved a challenge to a CAO, and Kailin’s case, which involved a site-specific permit decision.
The court also refused to draw any conclusions based on the fact that the legislature did not act on legislative amendments proposed to clarify the shoreline and critical areas issue in 2009.
Additional clarification may come from reconsideration of the KAPO decision, additional court decisions or legislative action.
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