Interim CTED/Ecology Guidance on the State Supreme Court Decision in Anacortes

Updated April 20, 2009

On July 31, 2008 the Supreme Court issued a decision in Futurewise v. Western Washington Growth Management Hearings Board. In their ruling, the Court reinstated a 2005 decision by the Board. This is commonly referred to as the “Anacortes case” since that city’s critical area ordinance is the topic of the decision.

On August 20, 2008, the Washington State departments of Community, Trade and Economic Development (CTED) and Ecology filed a Motion for Reconsideration to the Court in order to help resolve legal and procedural uncertainties regarding the decision.

This interim guidance on the Anacortes case is based on a preliminary analysis. It may be revised when the State Supreme Court decides the agencies’ motion.

Background

The 2003 Legislature enacted ESHB 1933, which amended both the state Shoreline Management Act (SMA) and the Growth Management Act (GMA). The law directed that critical areas in shoreline jurisdiction are ultimately solely protected by Shoreline Master Programs (SMPs) adopted under the SMA, rather than by Critical Area Ordinances (CAOs) adopted under the GMA. Both CTED and Ecology understood that this transfer to sole shoreline jurisdiction would occur when Ecology approves each city and county’s comprehensive SMP update. The agencies issued guidance to that effect in 2004.

In 2005 the question of when the transfer of authority from GMA to SMA occurred was disputed in a challenge filed by Futurewise to the City of Anacortes CAO update. The Western Washington Growth Management Hearings Board ruled that the transfer occurs when the critical areas ordinance is updated. The Board required Anacortes to submit its Critical Areas Ordinance to Ecology for approval as an update to the city’s Shoreline Master Program, before the city could complete its CAO update process. This ruling was contrary to the agencies’ understanding of ESHB 1933. The Board decision placed Ecology into the unprecedented role of having to formally review and approve a CAO before the ordinance can take effect.

Ecology and CTED appealed the Board’s decision in 2005, because they believed the ruling misinterpreted the law, and created significant legal, procedural and workload problems for local and state governments.

The agencies prevailed at Superior Court. Anacortes then appealed the case to the Supreme Court.

The Supreme Court reversed the Superior Court ruling on July 31, 2008 and reinstated the Board’s decision. The Court decision is comprised of two opinions:

A lead opinion signed by five justices, one of whom concurred in “result only”
A dissenting opinion signed by four justices.

CTED and Ecology filed a Motion for Reconsideration on August 20, 2008 requesting that the Court resolve significant uncertainties related to the decision:

Because no legal analysis in either opinion received five votes, the decision contains no legal holding or conclusion that can guide the lower courts, the Growth Management Hearings Boards, local governments, or landowners. This lack of a holding is creating 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.
Reinstatement of the 2005 Board decision raises uncertainty about the status of 140 existing critical areas ordinances. This creates uncertainty on vital issues including shoreline protection, access to flood insurance, and local governments’ eligibility for state grants and loans.
The plurality's apparent legal conclusion that ESHB 1933 is retroactive is inconsistent with the statutory language, legislative history, and case law.

Questions and Answers

When does the Supreme Court’s Opinion take effect?

The Supreme Court’s decision is final when the Court issues a mandate concluding its review. The mandate will not issue until the agencies’ August 20, 2008 motion for reconsideration is decided by the Supreme Court. The decision on whether to reconsider is generally issued in several weeks, but can take longer. If the court denies reconsideration, the mandate will issue shortly after the denial. If the Court grants reconsideration, the reconsideration process can take several months. During this period, the initial decision is not final. Although the Court has not yet issued a final mandate and the decision is not yet final, recent Hearings Board decisions have relied on the plurality opinion in reaching their decisions, See 08-2-0029c: Citizens Protecting Critical Areas and Olympic Stewardship Foundation, et al v. Jefferson County, Final Decision and Order (pdf), WWGMHB (November 19, 2008) and 07-1-0013, Larson Beach Neighbors and Jeanie Wagenman v. Stevens County, Final Decision & Order (pdf), 10/6/08 Final Decision & Order

Should local governments continue to apply existing Critical Areas Ordinances within shoreline jurisdiction?

Yes. Our guidance is that local governments should continue to apply their existing Critical Area Ordinances within shoreline jurisdiction. Our interpretation is that existing CAOs are presumed valid upon adoption and are not affected by the decision. This interpretation may be updated if the Court issues a revised decision.

Should local governments currently updating their Critical Area Ordinances include shoreline areas in their CAO?

We recommend that because the Anacortes Board decision is clear on this point, all critical areas as defined under the GMA should be included in a CAO update. If the Board’s Anacortes decision stands upon reconsideration, a new procedural step may be added to CAO updates (submittal to Ecology as a Shoreline Master Program amendment, after local adoption of the CAO). However, the Board’s decision does not change the intended geographic scope of the CAO process.

Should local governments currently amending CAOs concurrently adopt their final ordinance as SMP amendments?

Since the outcome of Ecology's and CTED's joint request for reconsideration of the Anacortes decision is not known at this time, local governments may wish to consider conducting public participation and adoption of updated CAOs as amendments to their Shoreline Master Programs (SMPs). Pending the outcome of possible reconsideration of the decision by the Court or legislative remedies, this approach may preserve useful options for both local communities and Ecology in complying with the intent of ESHB 1933.

Does the Anacortes Supreme Court decision create any uncertainty for jurisdictions currently working on comprehensive SMP updates?

No. Local governments should continue the process of updating their SMPs. When comprehensive SMP updates are adopted by local government and approved by Ecology, authority for protection of shoreline resources clearly transfers solely to the SMP. Thus, SMP updates resolve the transfer of authority questions raised by the Anacortes decision.

Are state agencies taking other actions to address the implications of the Anacortes decision?

Yes. We are considering processes that could be used if local governments and Ecology must implement the new CAO-SMP process envisioned in the Anacortes decision. In 2003, the Legislature attempted to clarify this issue through ESHB 1933, but this case has indicated that this law can be interpreted in very different ways. We want to ensure there is a clear path forward for protection of shoreline resources through a well-designed transfer of authority to the SMA, as ESHB 1933 intended.